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                                                                    2014 JUK IG Ail CJ- 03


           IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON




STATE OF WASHINGTON,
                                                 No. 71647-6-
                     Respondent,
                                                 DIVISION ONE
      v.



JAMES BRADLEY,                                   UNPUBLISHED OPINION

                     Appellant.                  FILED: June 16. 2014



       Spearman, C.J. — James Bradley appeals his conviction and sentence for

second degree assault while armed with a deadly weapon, malicious mischief in the

third degree, theft in the third degree, vehicle prowling in the second degree, and

obstructing a law enforcement officer. He argues that the evidence was insufficient to

support the deadly weapon enhancement, the theft conviction, and the obstruction

conviction; that it violated double jeopardy to punish him for both vehicle prowl and theft;

and that the trial court impermissibly imposed legal financial obligations. In a statement

of additional grounds, Bradley argues that the prosecutor committed misconduct by

misstating the definition of assault.

                                          FACTS

       Sage Sanchez hired James Bradley to repair Sanchez's father's motor home. On
September 12, 2012, Sanchez went to Bradley's house in Tacoma to pay Bradley $540
for work he had done repairing Sanchez's father's motor home the previous week.
No. 71647-6-1/2


Bradley told Sanchez he needed to be paid an additional $75 for work he did two days

prior, so he could pay his bills. Sanchez told Bradley he would receive the rest of the

money as soon as Sanchez's father deposited another check. Bradley said '"I see how

this is going to go.'" Verbatim Report of Proceedings (VRP) (12/04/12) at 187. He went

into his house and retrieved an aluminum baseball bat. Bradley then told Sanchez,

"'[yjou're going to pay me, or I'm going to take out every cent or every dollar on this

truck.'" VRP (12/4/12) at 188. Bradley hit the truck with the bat three times, leaving

dents. Sanchez was one or two feet away when Bradley began hitting the truck. Bradley

then chased Sanchez around the truck with the bat raised, demanding to be paid.

       Sanchez went across the street and asked a neighbor if he could go inside her

house to call 911. She said no. Sanchez saw Bradley coming towards him with the bat,

so he went to the opposite side of the car parked in front of the neighbor's house.

Sanchez walked around the car quickly two or three times, trying to keep away as

Bradley continued to chase him with the bat raised. Sanchez testified that he was afraid

because "someone his size, if you get hit in the head with the bat at a full swing, you

can probably die." 12/4/12 RP 201. However, Sanchez said Bradley never swung the

bat at him.

       Sanchez then said "'[f]ine. I'll pay you. Just, just stop. You need to stop.'" VRP

(12/4/12) at 201. Bradley then walked back towards Sanchez's truck and said he was

going to take Sanchez's leaf blower as collateral. Bradley removed the leaf blower from

Sanchez's truck and placed it on the porch. Bradley then reached into the truck through

the driver's window, removed the keys from the ignition, went into the house, and

dropped the keys on the couch, and left.
No. 71647-6-1/3


       Police officers arrived quickly in response to 911 calls from several neighbors

who witnessed the incident. Police searched the area looking for Bradley but were

initially unable to find him. Elizabeth Blankenship, who lived at the same house as

Bradley, received a text message from Bradley telling her that he was in the backyard

tool shed and asking her to let him know when the police left. Blankenship notified the

police. Two police officers knocked on the tool shed door, announced "Tacoma police, if

someone is in there, come out with [your] hands up." VRP (12/5/12) at 345-46. There

was no reply. They entered the tool shed and found Bradley.

       Bradley was arrested and charged with one count of assault in the second

degree while armed with a deadly weapon, one count of malicious mischief in the third

degree, one count of theft in the third degree, one count of obstructing a law

enforcement officer, and one count of vehicle prowling in the second degree. A jury

found Bradley guilty as charged. Bradley received a standard range sentence of 14

months for second degree assault, consecutive to 12 months for the deadly weapon

enhancement, and consecutive terms of two months for each of the four gross

misdemeanor convictions. Bradley appeals.

                                      DISCUSSION

       Bradley argues that the evidence was insufficient to find him guilty of the deadly

weapon sentence enhancement, obstructing a police officer, or third degree theft.

"When reviewing the sufficiency of the evidence to support a conviction, 'the question is

whether, after viewing the evidence in the light most favorable to the State, any rational

trier of fact could have found the essential elements of the crime beyond a reasonable

doubt.'" State v. Mvles. 127 Wn.2d 807, 816, 903 P.2d 979 (1995), quoting State v. Jov.
No. 71647-6-1/4



121 Wn.2d 333, 338, 851 P.2d 654 (1993). "A claim of insufficiency admits the truth of

the State's evidence and all inferences that reasonably can be drawn therefrom." State

v. Salinas. 119 Wn.2d 192, 201, 829 P.2d 1068 (1992) (citing State v. Theroff. 25 Wn.

App. 590, 593, 608 P.2d 1254 (1980)).

                                     Deadly Weapon

      Bradley does not challenge his conviction for second degree assault with a

deadly weapon. Rather, he argues that the evidence was insufficient to impose a deadly

weapon sentencing enhancement. When used as a means of committing second

degree assault, a "deadly weapon" is defined as an explosive, firearm, or "any other
weapon, device, instrument, article, or substance ... which, underthe circumstances in
which it is used,... is readily capable of causing death or substantial bodily harm."

RCW 9A.04.110(6); see RCW 9A.36.021(1)(c). In contrast, if an instrument is not on the
statutory list of per se deadly weapons, it qualifies as a "deadly weapon" for sentencing
enhancement purposes only if it "has the capacity to inflict death and from the manner

in which it is used, is likely to produce or may easily and readily produce death." RCW
9.94A.825. Baseball bats are not on the statutory list of per se deadly weapons. Thus,

Bradley argues that the baseball bat does not qualify as a "deadly weapon" for
sentencing enhancement purposes because there is insufficient evidence that he used
it in a manner that was likely to produce or may easily and readily produce death.
Whether a weapon is deadly is a question offact, which the State must prove beyond a
reasonable doubt. State v. Tonqate. 93 Wn.2d 751, 754, 613 P.2d 121 (1980).
No. 71647-6-1/5


        We need not reach the question of whether Bradley used the aluminum bat in a

manner that was likely to produce or may easily or readily produce death. Jury

Instruction No. 34 stated in relevant part:

            A deadly weapon is an implement or instrument that has the
        capacity to inflict death and from the manner in which it is used, is
        likely to produce or may easily and readily produce death. The
        following instruments are examples of deadly weapons: blackjack,
        sling shot, billy, sand club, sandbag, metal knuckles, any dirk,
        dagger, pistol, revolver or any other firearm, any knife having a blade
        longer than three inches, any razor with an unguarded blade, and
        any metal pipe or bar used or intended to be used as a club.

CP at 85 (Emphasis added.) The second sentence of this instruction provided the jury

with the statutory list of deadly weapons per se, and the first sentence provided them

with the statutory definition for deadly weapons that are not included on the per se list.

RCW 9.94A.825. Bradley did not object to this instruction. Therefore, the jury was

entitled to consider whether the aluminum bat was a deadly weapon under either prong

of the definition. The jury could have found that an aluminum bat qualifies as a deadly

weapon per se because it meets the definition of "any metal pipe or bar used or

intended to be used as a club." We uphold the deadly weapon sentencing

enhancement.

                                                Obstruction


        Bradley argues that his conviction for obstructing a law enforcement officer must

be reversed because he had a constitutionally protected right to refuse warrantless

police entry into the shed where he was hiding.1 He contends that "passive refusal to



        1"A person is guilty of obstructing a law enforcement officer if the person willfully hinders, delays,
or obstructs any law enforcement officer in the discharge of his or her official powers or duties." RCW
9A. 76.020(1).
No. 71647-6-1/6


consent to a warrantless search is privileged conduct which cannot be considered as

evidence of criminal wrongdoing." U.S. v. Prescott. 581 F.2d 1343, 1351 (9th Cir. 1978).

The State argues that the right to refuse a warrantless entry does not apply to toolsheds

on other people's property. This argument lacks merit, because the record clearly

shows that Bradley was hiding in a shed in his own backyard.

       However, Bradley did not move to dismiss the obstruction charge below based

on his right to refuse warrantless police entry into his shed. The record shows that

defense counsel merely made a cursory oral motion to dismiss the charge based on

insufficient evidence, which the trial court promptly denied without further argument.2

Under RAP 2.5(a), an issue first raised on appeal may be reviewed by an appellate
court where it is a manifest error affecting a constitutional right. For this exception to

apply, Bradley must show that "(1) the error implicates a specifically identified
constitutional right, and (2) the error is 'manifest' in that it had 'practical and identifiable
consequences' in the trial below." State v. Bertrand. 165 Wn. App. 393, 400, 267 P.3d
511 (2011) review denied. 175Wn.2d 1014, 287 P.3d 10 (2012). We cannot conclude

thatthe alleged error is "manifest." Bradley's argument is based on the premise that,
absent a warrant, he was not obligated to respond to the officer's commands. But it is

not clear that police needed a warrant in this situation. Bradley's housemate Elizabeth
Blankenship testified that she gave consent for the police to search the home, and told
them that Bradley was hiding in the shed. Nor is it clear that Bradley had a reasonable


        2The State correctly observes that Bradley does not challenge the sufficiency ofthe evidence as
to any of the elements of the crime of obstructing a law enforcement officer. He carefully couches his
argument in terms of the insufficiency of the evidence based on his constitutional right to refuse
warrantless entry, without assigning error orarguing that the evidence was otherwise insufficient to
support the conviction. Accordingly, we do not address the question of whether Bradley's behavior was
sufficient to support the obstruction conviction.
                                                     6
No. 71647-6-1/7



expectation of privacy in the shed. Because the warrantless entry issue was not raised

below, the record on these fact-specific issues is undeveloped. Accordingly, we cannot

further analyze the warrantless entry question. "RAP 2.5(a) does not mandate appellate

review of a newly-raised argument where the facts necessary for its adjudication are not

in the record and therefore where the error is not 'manifest'." State v. Riley. 121 Wn.2d

22, 31,846P.2d 1365(1993).

                                           Theft

      "Theft" means "[t]o wrongfully obtain or exert unauthorized control over the

property or services of another or the value thereof, with intent to deprive him or her of

such property or services     " RCW 9A.56.020(1 )(a). "A person is guilty of theft in the

third degree if he or she commits theft of property or services which (a) does not exceed

seven hundred and fifty dollars in value. . .." RCW 9A.56.050(1).

       Bradley contends that there was insufficient evidence of his intent to deprive

Sanchez of the leaf blower and truck keys because he merely moved the leaf blower to

the front porch, dropped the keys on the couch, and then left the home, knowing that

Sanchez was nearby and could easily recover the items. See State v. Walker. 75 Wn.

App. 101, 879 P.2d 957 (1994), Bradley asserts that theft requires a taking with the

intent to deprive the owner of the property for a substantial period of time. Bradley is

mistaken. In Walker, the court held that the statutes regarding taking a motor vehicle

without permission and theft in the first degree are not concurrent. In reaching that
holding, the court noted that "the joyriding statute proscribes the initial unauthorized use
of an automobile, while the theft statute proscribes the continued or permanent

unauthorized use of an automobile." \± at 108. Walker cannot be read as support for
No. 71647-6-1/8


the proposition that there is a minimum period of time that must pass before the intent

element of theft is established.

       Moreover, Bradley's argument that he lacked the intent to deprive because

Sanchez could have easily returned to Bradley's house to collect the leaf blower and

keys is not persuasive. Sanchez fled the scene after Bradley chased him with a

baseball bat. Witnesses testified that Bradley removed the leaf blower from Sanchez's

truck and placed it on the porch, and that he removed the keys from Sanchez's truck,

brought them inside, and dropped them on the couch. Sanchez testified that he did not

give Bradley permission to do this. The evidence is sufficient to support the conviction.

       Bradley further argues that reversal is required because the jury heard evidence

of two separate alleged takings and it was not instructed that it must unanimously agree

on the act constituting the theft. Where multiple acts are alleged, any one of which could

constitute the crime charged, the State must either elect the act on which it relies, or the

court must instruct the jury that they must reach a unanimous verdict on at least one

particular criminal act. State v. Kitchen. 110 Wn.2d 403, 411, 756 P.2d 105 (1988).

However, no unanimity instruction is required ifthe acts were part of a continuing

course of conduct. State v. Handran. 113 Wn.2d 11, 17, 775 P.2d 453 (1989). "To

determine whether there is a continuing course of conduct, we evaluate the facts in a

commonsense manner including (1) the time separating the criminal acts and (2)

whether the criminal acts involved the same parties, location, and ultimate purpose."

State v. Brown. 159 Wn. App. 1, 14, 248 P.3d 518 (2010). Here, it is clear that the theft

of the leaf blower and keys were a continuing course of conduct. The takings occurred

consecutively during the same incident, between the same parties at the same location,

                                             8
No. 71647-6-1/9


and were for the purpose of extracting value from Sanchez. Moreover, there was ample

evidence to support a conviction on both counts. Kitchen. 110 Wn.2d at 412 (unanimity

instruction required where a rational juror could have entertained reasonable doubt as

to whether one or more of the acts occurred). No unanimity instruction was required.

                                    Double Jeopardy

       Bradley argues that his convictions for third degree theft and second degree

vehicle prowling violated double jeopardy. "We review alleged double jeopardy

violations de novo." State v. Lust. 174 Wn. App. 887, 890, 300 P.3d 846 (2013).

      The state and federal double jeopardy clauses protect a defendant from being

punished multiple times for the same offense. State v. Adel. 136 Wn.2d 629, 632, 965

P.2d 1072 (1998). "Where a defendant's act supports charges under two criminal

statutes, a court weighing a double jeopardy challenge must determine whether, in light

of legislative intent, the charged crimes constitute the same offense." In re Orange. 152

Wn.2d 795, 815, 100 P.3d 291 (2004).

       Here, because the statutes do not expressly disclose legislative intent, we apply

the "'same evidence'" test to determine whether the prohibition against double jeopardy

has been violated. Orange. 152 Wn.2d at 816. "Under the 'same evidence' test,

offenses are not constitutionally the same and double jeopardy does not prevent

convictions for both offenses if each offense, as charged, includes an element not

included in the other and proof of one offense would not necessarily prove the other."

State v. Fuentes. 150 Wn. App. 444, 450, 208 P.3d 1196 (2009) (citing State v. Calle.

125 Wn.2d 769, 777, 888 P.2d 155 (1995). "We are to consider the elements of the
No. 71647-6-1/10


crimes both as charged and as proved." State v. Nvsta. 168 Wn.App. 30, 47, 275 P.3d

1162 (2012), review denied. 177 Wn.2d 1008, 302 P.3d 180 (2013)).

        Bradley argues that the same evidence test applies because the two crimes were

based on the act of reaching into Sanchez's truck to remove the keys.3 To convict

Bradley of theft in the third degree, the State was required to prove that he wrongfully

obtained or exerted unauthorized control over the property or services of another,

valued at $750 or less, with intent to deprive the owner thereof. RCW 9A.56.050(1);

RCW 9A.56.020(1 )(a). To convict Bradley of second degree vehicle prowling, the State

was required to prove that he entered or remained unlawfully in a vehicle with intent to

commit a crime against a person or property therein. RCW 9A.52.100(1). Under the

facts of this case, the evidence required to support the conviction for third degree theft

was sufficient to also convict Bradley of second degree vehicle prowling. But each crime

requires proof of an element that is not necessary to prove the other. It is possible to

commit third degree theft without unlawfully entering a vehicle, and it is possible to

commit second degree vehicle prowling without wrongfully obtaining or exerting

unauthorized control over the property of another. This demonstrates legislative intent

that the act of unlawfully entering a vehicle be punished in addition to other criminal acts

that may be committed therein. Thus, the crimes are not identical in law, and double

jeopardy was not violated under the same evidence test.




        3 Because the leaf blower was removed from the bed of Sanchez's truck, Bradley did not commit
the crime of vehicle prowling when he removed it. The same is not true for the theft of the keys, which
required Bradley to enter the interior of the truck to remove them from the ignition. Accordingly, even ifwe
were to conclude that the theft of the keys merged with the crime of vehicle prowling, the theft of the leaf
blower would stand.
                                                    10
No. 71647-6-1/11


      Bradley also argues that double jeopardy was violated because the crimes

merged. "Merger is a judicial doctrine used to determine whether the Legislature

intended to impose multiple punishments for an act that violates more than one statute."

State v.L.U.. 137 Wn. App. 410, 415, 153 P.3d 894 (2007) (citing State v. Eaton. 82

Wn. App. 723, 729, 919 P.2d 116 (1996)). The merger doctrine applies "where the

degree of one offense is elevated by conduct constituting a separate offense." State v.

Kier. 164 Wn.2d 798, 804, 194 P.3d 212 (2008) (citing State v. Vladovic. 99 Wn.2d 413,

419, 662 P.2d 853 (1983)).

       Bradley, relying on State v. Lass. 55 Wn. App. 300, 308, 777 P.2d 539 (1989),

argues that the second degree vehicle prowling merged with the third degree theft

conviction. In Lass. Division Two held that the crime of second degree vehicle prowling

merged with the crime of taking a motor vehicle without permission because the

defendant had to unlawfully enter the vehicle in order to take itwithout permission and

no additional steps were required to complete both charges. Bradley similarly argues

that second degree vehicle prowling merged with third degree theft because he had to

unlawfully enter Sanchez's truck in order to wrongfully obtain the keys and leaf blower.
This argument is not persuasive. In LLL, 137Wn. App. at 416-17, we disagreed with
Lass and held that second degree vehicle prowling does not merge with the crime of

taking a motor vehicle without permission. In so holding, we noted that the test for
applying the merger doctrine is not whether additional steps were necessary to
complete both charges, butwhether proof ofone crime elevates another to a higher




                                            11
No. 71647-6-1/12


degree.4 L.U.. 137 Wn. App. at 416. Proof of second degree vehicle prowling does not

elevate the crime of theft to a higher degree. Thus, the merger doctrine does not apply.

                                     Legal Financial Obligations

        Bradley argued that the trial court impermissibly imposed legal financial

obligations (LFOs) based on a finding of his ability to pay that was not supported by the

record.5 But Bradley did not object to the imposition of costs at either of his sentencing

hearings. Therefore, he has waived his ability to challenge them on appeal.6 RAP

2.5(a): State v. Blazina. 174 Wn. App. 906, 911, 301 P.3d 492. review granted. 178

Wn.2d 1010,311 P.3d 27 (2013).

        We also agree with the State that the issue is not ripe for review. The defendant

may petition the court at any time for remission or modification of the payments on [the

basis of manifest hardship]. RCW 10.01.160(4); Baldwin. 63 Wn. App. at 310-11.

        The initial imposition of court costs at sentencing is predicated on
        the determination that the defendant either has or will have the
        ability to pay. RCW 10.01.160(3). Because this determination is
        clearly somewhat "speculative," the time to examine a defendant's
        ability to pay is when the government seeks to collect the obligation.




       4The Washington Supreme Court affirmed LLL on other grounds without reaching the double
jeopardy issue, noting that the State asked that the charge of second degree vehicle prowling be
dismissed. State v. Unaa. 165 Wn.2d 95, 113 196 P.3d 645 (2008).

       5 RCW 10.01.160(3) provides that "[t]he court shall not order a defendant to pay costs unless the
defendant is or will be able to pay them. In determining the amount and method of payment of costs, the
court shall take account of the financial resources of the defendant and the nature of the burden that
payment of costs will impose."

        6 In State v. Bertrand. 165 Wn.App. 393, 395, 267 P.3d 511 (2011), the court allowed a disabled
defendant to challenge the imposition of discretionary LFOs on appeal, despite her failure to raise the
issue below as required by RAP 2.5(a). We are not compelled to do the same in this case. Blazina, 174
Wn.App. at 911.
                                                    12
No. 71647-6-1/13


State v. Smits. 152 Wn. App. 514, 523-24, 216 P.3d 1097 (2009). Bradley may

challenge the trial court's imposition of LFOs when the government seeks to collect

them.


                             Statement of Additional Grounds

        In a statement of additional grounds for review, Bradley argues that there was

insufficient evidence to convict him of second degree assault. "A person is guilty of

assault in the second degree if he or she ... [a]ssaults another with a deadly weapon."

RCW 9A.36.021(1)(c). "[S]pecific intent either to create apprehension of bodily harm or

to cause bodily harm is an essential element of assault in the second degree." State v.

Bvrd. 125 Wn.2d 707, 713, 887 P.2d 396 (1995).

        Bradley contends that the evidence shows his intention was to get paid, not to

create apprehension of bodily harm. He points out that he never tried to hit Sanchez

with the bat and ended the chase when Sanchez agreed to pay. But criminal intent may

be inferred "from conduct that plainly indicates such intent as a matter of logical

probability." State v. Abuan. 161 Wn. App. 135, 157, 257 P.3d 1 (2011). The record

shows that Bradley struck Sanchez's truck three times while standing a few feet from

Sanchez, then chased Sanchez across the street and around two vehicles while

brandishing the bat and demanding money. The evidence was sufficient to support the

conviction.

        Bradley also argues that the prosecutor made false statements regarding the

definition of assault during rebuttal closing argument. "Where, as here, defense counsel

does not object to the alleged misconduct, we deem the defendant to have waived the

issue on appeal unless the misconduct is 'so flagrant and ill-intentioned that it evinces

                                            13
No. 71647-6-1/14


an enduring and resulting prejudice' incurable by a jury instruction." State v. Larios-

Lopez. 156 Wn. App. 257, 260, 233 P.3d 899 (2010) (quoting State v. Gregory. 158

Wn.2d 759, 841, 147 P.3d 1201 (2006)).

       During closing argument, defense counsel argued that Bradley did not commit

second degree assault because Bradley directed his anger at the truck, not Sanchez.

He therefore urged the jury to consider a lesser included offense: "I think if you are

inclined to find any crime as it relates to Mr. Bradley, the bat against Mr. Sanchez, it's

unlawfully displaying a weapon. .. . This is an intimidation situation involving a weapon

which is the lesser included here." VRP (01/18/13) at 455. In rebuttal, the prosecutor

argued:

              But let's assume for the sake of argument that he wasn't
       intending to injure Sage Sanchez, but just to intimidate, as defense
       counsel says. Fine. It's still assault. And this is very key: Defense
       counsel told you in their opening statement, there is no assault here
       because the Defendant never hit Sage, and there is no assault here
       because the Defendant never got close enough to hit Sage. The
       defendant, there is no assault here because the Defendant had no
       intent to hit Sage.

             The fact is, let's say that those are all true, and they are true.
       There is still an assault. What they failed to point out to you is that
       none of those are elements of the crime. I don't have to prove that
       he hit Sage. I don't have to prove that he was close enough to hit
       Sage. I don't have to prove that he did not intend to hit Sage. I only
       have to prove that he intended to create fear of injury. And that was
       proven.


 VRP (01/18/13) at 463-64.

       Bradley contends that the prosecutor relieved the State of the burden to prove

his intent beyond a reasonable doubt by implying that intimidation is an element of

assault and that his intent was irrelevant. Bradley misunderstands the prosecutor's

argument. Viewed in context, it is apparent that the prosecutor responded appropriately
                                             14
No. 71647-6-1/15


to defense counsel's argument by pointing out that the State did not need to prove that

Bradley actually intended to injure Sanchez, but only that he intended to create fear of

injury.

          Affirmed.




WE CONCUR:




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