          IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                              DIVISION ONE
                                                                                              C?
STATE OF WASHINGTON,                             No. 74262-1-1                            CP C3
                                                                                          •-•4


                        Respondent,

                V.                               UNPUBLISHED OPINION

RYAN BRETT JOHNSON,
                                                                                   CAA,      CA
                        Appellant.               FILED: May 1, 2017                          •AA


       SCHINDLER, J. — A jury convicted Ryan Brett Johnson of burglary in the first

degree, robbery in the first degree, and assault in the second degree. We affirm the

jury verdict. But because the merger doctrine applies to the convictions for robbery in

the first degree and assault in the second degree, we remand for resentencing.

                                         FACTS

       Anthony Williams lived with his father on the Tulalip Indian Reservation.

Williams' bedroom was located on the first floor of the house just off the living room.

Beginning sometime in 2013, Williams' cousin Tashina Kona moved in and paid rent to

live in a bedroom in the basement.

       In December 2014, Williams' father went on a trip to the Philippines. After he left,

Kona drove his truck. On December 30, Williams posted a comment on Facebook

about Kona taking his father's truck. In response to the Facebook post, an uncle in
No. 74262-1-1/2

Oregon called Kona asking her about why she was driving the truck. Kona was angry at

Williams about the Facebook post.

      On New Year's Eve, Williams went to the Tulalip Resort Casino with several

friends. After Williams won $2,500, he left. Williams arrived home between 2:00 and

2:30 a.m. Williams closed the door to his bedroom and went to sleep.

      Kona arrived at the house at approximately 5:00 a.m. Kona saw a tax form for

the money Williams won on the kitchen counter. Kona decided to "get even" with

Williams for the Facebook post. Kona called Billy Jo Arnold. Kona told Arnold that

Williams had won a $2,500 jackpot and asked Arnold to come to the house and "take it"

from Williams. Arnold told Kona, "I'm on my way."

      When Kona called Arnold, he was at his house with his girlfriend Danielle Garner,

Ryan Brett Johnson, and Johnson's girlfriend Ami Lyons. After the call from Kona,

Arnold, Johnson, and Lyons left. When they arrived at Williams' house in a red Ford

Explorer, Kona came outside. Kona showed Arnold a photograph on her cell phone of

the tax form for the gambling winnings. Kona told Arnold the front door was unlocked.

Kona described the location of Williams' bedroom. On the way into the house, Johnson

picked up a two-inch by three-foot piece of wood that he found in the driveway.

Johnson handed the piece of wood to Arnold.

      Before entering the house, Arnold and Johnson put on scarves to cover their

faces. Arnold and Johnson "barged" through the door and into Williams' bedroom.

Arnold told Williams, "I know you won money." Arnold demanded Williams hand over

his wallet. Williams gave his wallet to Johnson. Johnson removed the money from the

wallet and took Williams' cell phone. Before leaving, Arnold "bashed" Williams on the



                                           2
No. 74262-1-1/3

head with the two-inch by three-foot piece of wood.

       Williams ran to his sister's house. Williams had a "3-inch gash" on his head and

was bleeding "pretty heavily." Williams' sister called 911 and the Tulalip Tribal Police.

Paramedics took Williams to the hospital. The doctors had to use 11 staples to close

the head wound.

       Meanwhile, Kona tried to reach Arnold. Kona called Johnson on his cell phone to

talk to Arnold. Kona asked Arnold "what happened." Arnold told her he hit Williams "in

the head" and "got out of there." Arnold told Kona he would call her later. At

approximately 7:30 a.m., Arnold, Johnson, and Lyons went to the Angel of the Winds

Casino to gamble with the $2,500.

      Tulalip Tribal Police Detective David Sallee investigated the robbery. Detective

Sallee obtained a search warrant from the Tulalip Tribal Court for Kona's cell phone.

On January 6, Detective Sallee executed the warrant and seized Kona's cell phone.

Because "everything prior to January 2nd had already been deleted," Detective Sallee

obtained a search warrant for the cell phone records. On January 22, Sprint produced

the cell phone records. The records showed Kona called and sent text messages

multiple times near the time of the robbery to (425) 268-5584 and (509)631-2672.

Detective Sallee knew the number(425)268-5584 belonged to Arnold but did not

recognize the (509)631-2672 number.

       Detective Sallee conducted a Google Internet search using the number(509)

631-2672. The "Google . .. task bar... ended up popping up to Ryan Johnson's

Facebook . . . page and was listed under his personal information as his contact

number." Detective Sallee also used the LexisNexis police database to search for the




                                             3
No. 74262-1-1/4'

number(509)631-2672. The database showed the number was associated with "Ryan

Johnson."

      On January 23, Detective Sallee requested a search warrant from the Tulalip

Tribal Court for lain records that include the date December 31st 2014 through January

2nd 2015 for number 509-631-2672." In the affidavit of probable cause, Detective

Sallee states he believed the number(509)631-2672 belonged to Ryan Johnson)

      The Tulalip Tribal Court issued the search warrant on January 23. The search

warrant states the cell phone records are located in Texas and authorizes the search

and seizure of the cell phone records.2

      On February 6, the AT&T subpoena compliance center in Dallas, Texas,

produced the cell phone records for the number(509)631-2672. The records did not

identify the owner of the number.

      The State charged Arnold and Johnson with robbery in the first degree. Arnold

pleaded guilty and agreed to testify. The State filed an amended information charging

Johnson with burglary in the first degree in violation of RCW 9A.52.020, robbery in the

first degree in violation of RCW 9A.56.200, and assault in the second degree while

armed with a deadly weapon in violation of RCW 9A.36.021(1)(a) and RCW


      1 The affidavit of probable cause states, in pertinent part:
      I searched the internet using this number 509-631-2672 and it directed me to the Face
      Book account for Ryan B Johnson (DOB 01-20-1981). I recognized the photo of
      JOHNSON from my previous case and also recognized a photo he had posted of his
      1999 red Ford Explorer.
      2 The search warrant states, in pertinent part:

      Location: in the cell phone records of cell phone number 509-631-2672 belonging to
      Ryan B Johnson DOB 01-20-1981 located in the New Cingular Wireless/AT&T subpoena
      compliance center 208 S Akard St. 10th floor M Dallas Texas 75202.
              Search and Seize This "Search Warrant" shall be to seize and search the above
              listed phone number records for text messages, photos, call logs, text logs, voice
               mails, emails and cell tower locations "pings" for the dates of 12-31-2014 through
              01-02-2015.


                                                  4
No. 74262-1-1/5

9.94A.533(4) and .825.

       Johnson filed a motion to suppress the evidence obtained from the search

warrant issued by the Tulalip Tribal Court to the AT&T subpoena compliance center in

Dallas for the number(509)631-2672. Johnson argued the Tulalip Tribal Court did not

have jurisdiction to issue a search warrant for cell phone records stored outside

Washington. The court denied the motion.

       Williams, Kona, Arnold, Garner, Detective Sallee, and Sprint records custodian

Desiree Hannen testified during the four-day jury trial. The State did not introduce the

AT&T phone records into evidence.

       Williams testified that he and Kona did not "really get along." Williams said Kona

was "into the whole drug scene" and did not pay rent "very often."

       Williams testified that he did not see the faces of the men who robbed him

because they "had scarves on." Williams testified that he did not know Johnson and he

did not give Johnson "or anybody else" permission to enter his bedroom. Williams told

the jury that after he gave the men his wallet, one of the men "bashed" him on the head.

       Kona testified that she and Williams did not get along and "didn't see eye to eye

from the beginning." Kona testified that Arnold arrived at the house with another man

and a female in a "red SUV[3]." Kona admitted unlocking the front door and turning off

the porch light to "facilitate" the robbery. According to Kona, she could not "definitively

state" Johnson was the man with Arnold, but he looked "[s]imilar."

       Arnold testified that he spent New Year's Eve 2014 with his girlfriend Garner,

Johnson, and Johnson's girlfriend Ami Lyons "getting high" on heroin and

methamphetamine. Arnold said Kona called at approximately 5:00 a.m. on January 1

       3 Sport-utility   vehicle.


                                             5
No. 74262-1-1/6

and told him Williams "had some money and for us to take it." Arnold testified that he

left with Johnson and Lyons and drove to Williams' house in Johnson's red Ford

Explorer.

      Arnold admitted he was armed with a weapon. Arnold testified that before

entering the house, Johnson picked up a two-inch by three-foot piece of wood from the

driveway and handed it to him. After entering the house, they went to Williams'

bedroom. Arnold said Johnson opened the bedroom door and turned on the lights.

Arnold testified that after Williams handed over his wallet, Johnson took the money out

of the wallet. Arnold admitted he hit Williams on the head with the two-inch by three-

foot piece of wood. After the robbery, Arnold, Johnson, and Lyons drove to the Angel of

the Winds Casino in the Ford Explorer and "[b]lew" the money "[a]s fast as [they] could

get rid of it." The court admitted into evidence a photograph from the casino. Arnold

identified the two men in the photo as Johnson and himself. Arnold testified the number

(509)631-2672 belonged to Johnson.

      Arnold's girlfriend Garner testified that she spent New Year's Eve with Arnold,

Lyons, and Lyons' boyfriend. Garner testified that after Arnold received a call early the

next morning, he said he "needed a ride to go rob somebody." Garner testified Lyons

and her boyfriend left with Arnold in a red SUV.

      Sprint records custodian Desiree Hannen testified and the court admitted into

evidence copies of Kona's Sprint cell phone records. The cell phone records show that

near the time of the robbery, Kona made multiple calls to and received multiple calls

from (509)631-2672. The records also show that on January 1, Kona exchanged

multiple text messages with the cell phone number(509)631-2672.



                                            6
No. 74262-1-1/7

       Detective Sallee testified that when he performed a Google Internet search for

the number(509)631-2672, a Facebook page for "Ryan Johnson""popp[ed] up."

Detective Sallee testified the Facebook page contained photographs that "match[ed]the

defendant" and a photograph of a "red Ford Explorer that matched the description of the

vehicle used in the robbery."

      Detective Sallee also testified that a LexisNexis database search for the number

(509)631-2672 showed the number was connected to "Ryan Johnson" and a social

security number.

              Did you type this number into any other search engines?
      A       I did.
      Q       And what search engine is that, sir?
      A       Police database called LexisNexis.
      Q       And what specific information did you type into the search engine?
      A       The phone number,(509)631-2672.
      Q       And did a name come up associated with this number?
      A       Yes. One name came up which was Ryan Johnson.
      Q       Was there any identifying information associated with the name of
              Ryan Johnson?
      A       Yes. There was a social security number associated.

      Detective Sallee testified that he confirmed the social security number belonged

to Johnson.

      Q       And did you recognize the social security number?
      A       I verified it through dispatch. I had dispatch run his name and date
              of birth and verified the social security number was the same.
      Q       The same as whose?
      A       As Ryan Johnson, the defendant.

      Detective Sallee testified the AT&T cell phone records for the number(509)631-

2672 did not "indicate they belonged to anyone in specific" and had no "name attached."

The court admitted into evidence a copy of a surveillance video from the Angel of the

Winds Casino as an exhibit. The State played the casino surveillance video for the jury.



                                            7
No. 74262-1-1/8

The video shows Johnson entering the casino with Arnold and Lyons at approximately

7:30 a.m.

      The jury found Johnson guilty of burglary in the first degree, robbery in the first

degree, and assault in the second degree. By special verdict, the jury found Johnson

was armed with a deadly weapon.

       At sentencing, the court rejected the argument that the robbery and assault

convictions constituted the same criminal conduct or that the merger doctrine applied.

The court sentenced Johnson to 135 months of confinement.

                                       ANALYSIS

AT&T Cell Phone Records

       For the first time on appeal, Johnson asserts the Tulalip Tribal Court did not have

the authority to issue a search warrant to obtain the AT&T cell phone records for a

nontribal member. Even if the Tulalip Tribal Court did not have the authority to issue the

search warrant, we conclude the admission of evidence obtained from AT&T was

harmless beyond a reasonable doubt.

      The failure to suppress evidence obtained in violation of the Fourth Amendment

and article 1, section 7 is presumed prejudicial. U.S. CONST. amend IV; WASH. CONST.

art. 1 § 7; State v. McReynolds, 117 Wn. App. 309, 326, 71 P.3d 663(2003). The State

bears the burden of showing constitutional error is harmless beyond a reasonable

doubt. State v. Easter, 130 Wn.2d 228, 242, 922 P.2d 1285(1996). Constitutional error

is harmless if the appellate court is convinced beyond a reasonable doubt that "the jury

verdict cannot be attributed to the error." State v. Lui, 179 Wn.2d 457, 495, 315 P.3d

493(2014); State v. Brown, 147 Wn.2d 330, 341, 58 P.3d 889 (2002); Easter, 130



                                            8
• No. 74262-1-1/9

 Wn.2d at 242. Under the "overwhelming untainted evidence" test, the appellate court

 looks at only the untainted evidence to determine if the evidence is so overwhelming

 that it necessarily leads to a finding of guilt. State v. Guloy, 104 Wn.2d 412,426, 705

 P.2d 1182(1985).

        Here, there was scant evidence about the AT&T cell phone records. We

 conclude beyond a reasonable doubt that there was overwhelming untainted evidence

 of Johnson's guilt and the jury would have reached the same result absent the AT&T

 cell phone record evidence.

        Kona admitted she called Arnold about the jackpot Williams won and asked him

 to come to the house and rob Williams. Arnold and Garner testified that Arnold left with

 Johnson and Lyons in a red Ford Explorer to go rob someone.

        Arnold testified he was armed with a weapon when he and Johnson entered the

 house wearing scarves. Arnold testified that they went into Williams' bedroom and

 committed robbery. Arnold testified that after the robbery, he, Johnson, and Lyons went

 to the Angel of the Winds Casino and spent the money stolen from Williams.

 Surveillance video admitted at trial shows Johnson entering the casino with Arnold

 shortly after the robbery.

        Williams testified two men "barged" into his bedroom. Williams testified one of

 the men was holding "[a] 2-x-4, some kind of stick." The men demanded his wallet and

 took the money out of his wallet and his cell phone. Williams testified that before both

  men ran away, one man hit him over the head with the piece of wood resulting in a

 wound that required 11 staples.




                                             9
No. 74262-1-1/10

       Johnson did not object to the admission of Kona's cell phone records. The cell

phone records show Kona exchanged multiple calls and text messages with the number

(509)631-2672 near the time of the robbery. Detective Sallee testified that during a

Google search for the number(509)631-2672, Johnson's Facebook page appeared

with pictures of Johnson and a red Ford Explorer matching the description of the vehicle

used in the robbery. The LexisNexis search for the number(509)631-2672 returned

the name "Ryan Johnson" and a social security number that matched Johnson's social

security number. Arnold also testified the (509)631-2672 cell phone number belonged

to Johnson.

Evidentiary Rulings

       Johnson claims the court erred in admitting Detective Sallee's testimony about

Facebook because the State did not establish the Facebook page belonged to Johnson.

The State contends Johnson waived this argument by not moving to strike the

testimony. The record supports the State's argument.

       We review evidentiary rulings for abuse of discretion. State v. Garcia, 179 Wn.2d

828, 846, 318 P.3d 266(2014). "'A trial court abuses its discretion if its decision is

manifestly unreasonable or based upon untenable grounds or reasons.'" Garcia, 179

Wn.2d at 846 (quoting State v. Lamb, 175 Wn.2d 121, 127, 285 P.3d 27 (2012)).

       Under ER 103(a)(1), "[e]rror may not be predicated upon a ruling which admits

... evidence unless... a timely objection or motion to strike is made, stating the

specific ground of objection." In general, an objection to testimony "must be made when

testimony is offered and an objection to a question after it has been answered comes

too late." State v. Jones, 70 Wn.2d 591, 597, 424 P.2d 665(1967). But "[e]ven if .. . an




                                            10
No. 74262-1-1/11

objection to a question already answered is timely, it will not be considered unless

accompanied by a motion to strike." State v. Richard, 4 Wn. App. 415, 428, 482 P.2d

343(1971); Jones, 70 Wn.2d 597-98; State v. Delaney, 161 Wash. 614, 620, 297 P.

208(1931). Here, the record shows Johnson did not move to strike Detective Sallee's

testimony about the Facebook post.

       Without objection, Detective Sallee testified that when he performed a Google

Internet search for the cell phone number(509)631-2672, a Facebook page belonging

to Johnson appeared with photographs of Johnson. The prosecutor asked whether

Detective Sallee "notice[d] any other pictures of interest." The defense objected to the

question as hearsay. The court overruled the objection. Detective Sallee then testified

there "was a picture of a red Ford Explorer that matched the description of the vehicle

used in the robbery."

       Outside the presence of the jury, Johnson argued the State "had to authenticate

that that page actually belonged to the person that the State was saying it belonged to."

The court reserved ruling on the objection, "All right. I'm going to reserve ruling on the

issue. The objection that was raised before the jury was excluded was a hearsay

objection, not an objection based on a lack of authentication." The court ruled that

subject to other testimony, the court would exclude evidence "about a truck that belongs

to [Johnson] having been posted ... insofar as it is offered for the purpose of showing

that this is information that Mr. Johnson posted to his Facebook... page."

               The information about a truck that belongs to him having been
       posted may be relevant and admissible, but I think as long as there's other
       evidence with respect to the suspect vehicle that the officer's able to
       testify, or that other witnesses can testify to for now.




                                            11
No. 74262-1-1/12

              I think I will exclude that evidence insofar as it is offered for the
        purpose of showing that this is information that Mr. Johnson posted to his
        Facebook ... page.

        In response, the prosecutor pointed out that the "information that Detective

Sallee has already testified to and is already in front of the jury is he did see a picture of

interest which was a red Ford Explorer." Johnson did not move to strike the Facebook

testimony and the court did not instruct the jury to disregard that testimony.

        Johnson also claims the court erred in allowing Detective Sallee to testify about

the results of the LexisNexis database search under ER 901(b).4 Johnson asserts the

State did not establish that the search produced an accurate result.5 "The requirement

of authentication or identification as a Condition precedent to admissibility is satisfied by

evidence sufficient to support a finding that the matter in question is what its proponent

claims." ER 901(a).

        The court held a hearing on the admissibility of the LexisNexis search. Detective

Sallee testified that LexisNexis was a database that "police agencies across the

country" can access. Detective Sallee described the database as "a search engine tool

to locate people." Detective Sallee testified that in his experience, LexisNexis was "very

reliable." As an offer of proof, the prosecutor also told the court that Detective Sallee

would also testify that the search for the (509)631-2672 number identified a social

security number, that Detective Sallee had "previous knowledge" of Johnson's social


        4 ER 901(b)(9) states a "Process or System" may be authenticated with evidence "describing a
process or system used to produce a result and showing that the process or system produces an
accurate result."
         5 We note the ER 901 authentication requirement is a condition precedent to admissibility of
exhibits, not live testimony. 5C KARL B. TEGLAND, WASHINGTON PRACTICE: EVIDENCE LAW AND PRACTICE §
900.3, at 280(6th ed. 2016)("The rules in Article 9 are designed primarily for the authentication of
demonstrative evidence... and the identification of voices."). The court did not admit any exhibits regarding
Detective Sallee's LexisNexis search. In any event, the State presented evidence showing LexisNexis
produced accurate results.


                                                     12
No. 74262-1-1/13

security number, and that the social security number returned by the search matched

Johnson's social security number.

       The court ruled Detective Sallee could testify that the search of the LexisNexis

database returned Johnson's name and social security number but Detective Sallee

could not testify that "the phone number belonged to the defendant." Because the

record supports the determination that LexisNexis produced accurate results, the court

did not abuse its discretion in allowing Detective Sallee to testify about the results of the

LexisNexis search.

Sufficiency of the Evidence of Burglary in the First Degree

       Johnson argues insufficient evidence supports his conviction for burglary in the

first degree in violation of RCW 9A.52.020.

       The State has the burden of proving the elements of a crime beyond a

reasonable doubt. In re Winship, 397 U.S. 358, 364, 90 S. Ct. 1068, 25 L. Ed. 2d 368

(1970); State v. Borrero, 147 Wn.2d 353, 364, 58 P.3d 245 (2002). Under the

Fourteenth Amendment and the Sixth Amendment to the United States Constitution and

article 1, sections 21 and 22 of the Washington State Constitution, a criminal defendant

is entitled to"'a jury determination that[he] is guilty of every element of the crime with

which he is charged, beyond a reasonable doubt.'" Apprendi v. New Jersey, 530 U.S.

466, 477, 120 S. Ct. 2348, 147 L. Ed. 2d 435(2000)6 (quoting United States v. Gaudin,

515 U.S. 506, 510, 115 S. Ct. 2310, 132 L. Ed. 2d 444 (1995)); State v. Polo, 169 Wn.

App. 750, 762-63, 282 P.3d 1116 (2012); State v. Johnson, 185 Wn. App. 655,666, 342

P.3d 338 (2015).



       6 Alteration   in original.


                                             13
. No. 74262-1-1/14

         In reviewing a sufficiency of the evidence claim, we view the evidence in the light

  most favorable to the State to determine whether any rational trier of fact could have

 found the essential elements of the crime beyond a reasonable doubt. State v.

  Witherspoon, 180 Wn.2d 875, 883, 329 P.3d 888 (2014); State v. Salinas, 119 Wn.2d

  192, 201, 829 P.2d 1068(1992). A challenge to the sufficiency of the evidence admits

  the truth of the evidence. Witherspoon, 180 Wn.2d at 883. Circumstantial evidence

  and direct evidence are equally reliable. State v. Kintz, 169 Wn.2d 537, 551, 238 P.3d

 470 (2010). "[A]ll reasonable inferences from the evidence must be drawn in favor of

  the State and interpreted most strongly against the defendant." Salinas, 119 Wn.2d at

  201. We defer to the trier of fact on "issues of witness credibility." Witherspoon, 180

  Wn.2d at 883.

         Johnson asserts the State did not prove the essential element of unlawfully

  entering or remaining because Kona invited him into the house. To convict Johnson of •

  burglary in the first degree in violation of RCW 9A.52.020, the State had the burden of

  proving beyond a reasonable doubt that Johnson entered or remained unlawfully in

  Williams' house. RCW 9A.52.020(1) states:

         A person is guilty of burglary in the first degree if, with intent to commit a
         crime against a person or property therein, he or she enters or remains
         unlawfully in a building and if, in entering or while in the building or in
         immediate flight therefrom, the actor or another participant in the crime (a)
         is armed with a deadly weapon, or (b) assaults any person.

        "A person 'enters or remains unlawfully' in or upon premises when he or she is

  not then licensed, invited, or otherwise privileged to so enter or remain." RCW

  9A.52.010(2).7 If a person,"'being lawfully in a house, enters a room which he has no


        7 The legislature amended RCW 9A.52.010 in 2016. LAWS OF 2016, ch. 164,§ 12. Because the
  amendments do not change the language quoted above, we cite the current statute.


                                                14
No. 74262-1-1/15

right to enter, with felonious intent, by breaking or opening an inner door, it is as much

burglary as if he had entered by breaking an outer door or window.'" State v. Rio, 38

Wn.2d 446, 451, 230 P.2d 308(1951)(quoting former 12 C.J.S. BURGLARY § 6, at 671);

State v. Thomson,71 Wn. App. 634,639 n.3, 861 P.2d 492(1993). "Only the person

who resides in or otherwise has authority over the property may grant permission to

enter or remain." State v. J.P., 130 Wn. App. 887, 892, 125 P.3d 215(2005). The trier

of fact may infer a limitation on "the privilege to be on the premises ... from the

circumstances of the case." State v. Collins, 110 Wn.2d 253, 261, 751 P.2d 837(1988).

       Johnson asserts there is no evidence he exceeded the scope of Kona's invitation

to enter the house. We disagree. Williams and Kona lived in separate bedrooms and

did not "get along." Kona paid rent to live in a bedroom in the basement. The evidence

showed the only areas of the house Kona had access to were her bedroom and the

"community area[s]." There is no evidence that Kona had the right to give Johnson and

Arnold permission to enter Williams' bedroom. And the undisputed evidence shows the

bedroom door was closed when Arnold and Johnson entered the house and "barged"

into his bedroom. Williams testified he did not give Johnson "or anybody else"

permission to enter his bedroom. Viewing the evidence and all reasonable inferences in

the light most favorable to the State, a jury could reasonably find that Johnson and

Arnold unlawfully entered or remained in Williams' bedroom.

       State v. Wilson, 136 Wn. App. 596, 150 P.3d 144 (2007), is distinguishable. In

Wilson, a no-contact order prohibited Wilson from having contact with his girlfriend and

they shared a house together, but the order did not prohibit Wilson from "entering and




                                            15
No. 74262-1-1/16

remaining" at the residence or from coming within a specified distance of the residence.

Wilson, 136 Wn. App. at 603-04.

Double Jeopardy

       In the alternative, Johnson contends the convictions for robbery in the first

degree and assault in the second degree violate double jeopardy. We agree.

       The double jeopardy clause of the Fifth Amendment to the United States

Constitution and article 1, section 9 of the Washington State Constitution bar the court

from entering multiple convictions for the same offense.8 In re Pers. Restraint of

Francis, 170 Wn.2d 517, 523, 242 P.3d 866(2010); State v. Womac, 160 Wn.2d 643,

650-51, 160 P.3d 40 (2007). Whether convictions violate double jeopardy is a question

of law we review de novo. State v. Freeman, 153 Wn.2d 765, 770, 108 P.3d 753

(2005); Francis, 170 Wn.2d at 523. The dispositive question in analyzing whether two

convictions violate double jeopardy is whether the legislature intended multiple

punishments. State v. Calle, 125 Wn.2d 769, 776, 888 P.2d 155 (1995); Francis, 170

Wn.2d at 523.

        "Under the merger doctrine, when the degree of one offense is raised by

conduct separately criminalized by the legislature, we presume the legislature intended

to punish both offenses through a greater sentence for the greater crime." Freeman,

153 Wn.2d at 772-73. We "focus[]on the manner in which the offenses are charged

and proved in a particular case and ask[]whether the State was required to prove the




       8 The state and federal double jeopardy clauses provide the same protections. In re Pers.
Restraint of Orange, 152 Wn.2d 795, 815, 100 P.3d 291 (2004).


                                                  16
No. 74262-1-1/17

act constituting the merging crime to elevate the other crime." State v. Davis, 177 Wn.

App. 454, 463, 311 P.3d 1278 (2013).

      Considering the evidence, arguments, and instructions, if it is not clear
      that it was "manifestly apparent to the jury that the State [was] not seeking
      to impose multiple punishments for the same offense" and that each count
      was based on a separate act, there is a double jeopardy violation.

State v. Mutch, 171 Wn.2d 646, 664, 254 P.3d 803(2011)9(quoting State v. Berg, 147

Wn. App. 923, 931, 198 P.3d 529 (2008)). Although the double jeopardy analysis

requires a case-by-case approach, convictions for robbery in the first degree and

assault in the second degree generally "will merge unless they have an independent

purpose or effect." Freeman, 153 Wn.2d at 780; see Francis, 170 Wn.2d at 524.

      The court instructed the jury that to-convict Johnson of robbery in the first

degree, the State must prove beyond a reasonable doubt that Johnson or an

accomplice was(1) armed with a deadly weapon or(2) inflicted bodily injury.10 The

court instructed the jury that to convict Johnson of assault in the second degree, the


      9 Emphasis and    alteration in original.
      10 Jury instruction 7 states, in pertinent part:
               To convict the defendant of the crime of robbery in the first degree, each of the
      following six elements of the crime must be proved beyond a reasonable doubt:
               (1) That on or about the 1st day of January, 2015, the defendant, or a person to
      whom the defendant was an accomplice, unlawfully took personal property from the
      person or in the presence of another;
               (2) That the defendant, or a person to whom the defendant was an accomplice,
      intended to commit theft of the property;
               (3) That the taking was against the person's will by the defendant's, or a person
      to whom the defendant was an accomplice, use or threatened use of immediate force,
      violence, or fear of injury to that person;
               (4)That force or fear was used by the defendant, or a person to whom the
      defendant was an accomplice, to obtain or retain possession of the property or to prevent
      or overcome resistance to the taking;
               (5)(a) That in the commission of these acts, or in immediate flight therefrom, the
      defendant, or a person to whom the defendant was an accomplice, was armed with a
      deadly weapon or
               (b)That in the commission of these acts or in the immediate flight therefrom the
      defendant, or a person to whom the defendant was an accomplice, inflicted bodily injury;
      and
               (6)That any of these acts occurred in the State of Washington.


                                                  17
No. 74262-1-1/18

State must prove beyond a reasonable doubt that Johnson or an accomplice "assaulted

Anthony Williams and thereby recklessly inflicted substantial bodily harm."

      The State presented evidence to support the conviction for robbery in the first

degree under both the armed with a deadly weapon and the infliction of bodily injury

prongs of the statute. The State concedes the special verdict form does not show

whether the jury convicted on the deadly weapon alternative rather than infliction of

bodily harm. The merger doctrine applies where it was "unclear from the jury's verdict

whether the assault was used to elevate the robbery to first degree." State v. Kier, 164

Wn.2d 798, 812-13, 194 P.3d 212(2008).

      The State argues the exception to the merger doctrine for acts with an

"independent purpose or effect" applies.11 Under the exception,"offenses may in fact

be separate when there is a separate injury to 'the person or property of the victim or

others, which is separate and distinct from and not merely incidental to the crime of

which it forms an element.'" Freeman, 153 Wn.2d at 778-79 (quoting State v. Frohs, 83

Wn. App. 803, 807, 924 P.2d 384 (1996)). This exception allows "two convictions even

when they formally appear to be the same crime under other tests." Freeman, 153

Wn.2d at 778.

      The State argues that as in State v. Knight, 176 Wn. App. 936, 309 P.3d 776

(2013), the robbery and assault charges are "completely separate" because Johnson

had already taken the money from Williams' wallet when Arnold hit Williams on the head

with the two-inch by three-foot piece of wood. But unlike in Knight, Williams testified

that Arnold "bashed" him on the head during the robbery—"They took the money out,

and then that's when they dropped my wallet on the ground. And then that's when he

       11 Freeman, 153 Wn.2d at 780.


                                            18
No. 74262-1-1/19

bashed me upside the head." Williams also testified that Johnson and Arnold "ran" after

Arnold hit him on the head.

       Under Washington law, "[t]he taking is ongoing until the assailant has effected an

escape," and therefore, the definition of "robbery" includes "'violence during flight

immediately following the taking.'" State v. Truonq, 168 Wn. App. 529, 535-36, 277

P.3d 74(2012)(quoting State v. Manchester, 57 Wn. App. 765, 770, 790 P.2d 217

(1990)); State v. Thomas, 192 Wn. App. 721, 725, 371 P.3d 58(2016). We conclude

the conviction for assault in the second degree merged with the conviction for robbery in

the first degree and violated double jeopardy.

       We affirm the jury verdict but remand for resentencing.




WE CONCUR:




                      e




                                             19
