Opinion
No. 26560-9-III.
December 4, 2008.
Appeal from a judgment of the Superior Court for Spokane County, No. 05-1-01571-4, Salvatore F. Cozza, J., entered October 31, 2007.
Affirmed in part, reversed in part, and remanded by unpublished opinion per Sweeney, J., concurred in by Schultheis, C.J., and Brown, J.
This prosecution for robbery, assault, unlawful imprisonment, and burglary follows a home invasion robbery by the defendant and his cohorts. The defendant argues on appeal that the evidence is legally insufficient to support some of his convictions, or that certain crimes (unlawful imprisonment) should have merged with others (robbery), and that the court failed to conclude that some of his crimes constituted the "same criminal conduct" for sentencing purposes. We reject these assignments of error. We do, however, reverse the imposition of the firearm enhancements based on the jury's finding that he was armed with a deadly weapon. And we remand for resentencing based on the jury's verdict.
FACTS
Steven Unruh and three women, Karen Applegate, Dalinda Combs, and Pamela Drake, planned to rob a Spokane residence. Mr. Unruh and Ms. Applegate knocked on Edward and Virginia Pringle's front door and asked Mr. Pringle if they could use his telephone because Ms. Applegate injured her ankle. Mr. Unruh then forced Mr. Pringle inside by pushing a gun into his ribs.
Once inside, Mr. Unruh pulled the clip out of his gun and showed Mr. Pringle that the clip was loaded. Meanwhile, Ms. Pringle tried to call 911 with a cell phone in the kitchen. Mr. Unruh grabbed the cell phone from her hand. He left the kitchen briefly and, when he returned, he pointed his gun at Ms. Pringle's face. He then ordered the Pringles to sit at the kitchen table. And he demanded that Mr. Pringle give him his wallet. Mr. Pringle complied. Mr. Unruh grabbed the wallet from Mr. Pringle's hand.
Ms. Combs and Ms. Drake entered the Pringles' home next. Mr. Unruh stood by the Pringles with the gun in his hand and told Ms. Applegate, Ms. Combs, and Ms. Drake to "do their thing." Report of Proceedings (RP) at 289. Mr. Unruh and the three women eventually left the Pringles' home with the Pringles' cell phone, jewelry, wallet, and credit cards. They later buried the cell phone.
The State charged Mr. Unruh with two counts of first degree robbery, two counts of second degree assault, two counts of unlawful imprisonment, and one count of first degree burglary. It alleged that Mr. Unruh was armed with a firearm during the course of each crime.
The trial court, however, instructed the jury on deadly weapon special verdicts:
For purposes of a special verdict on Counts 1, 2, 3, 4, 5, 6 or 7 the State must prove beyond a reasonable doubt that the defendant was armed with a deadly weapon at the time of the commission of the crimes stated in Counts 1, 2, 3, 4, 5, 6 and 7.
. . . .
A pistol, revolver, or any other firearm is a deadly weapon whether loaded or unloaded.
Clerk's Papers (CP) at 85.
The jury found Mr. Unruh guilty of all charged crimes. It also found that Mr. Unruh was armed with a deadly weapon when he committed the crimes.
The sentencing judge concluded that Mr. Unruh's unlawful imprisonment and robbery convictions did not merge. And he concluded that they did not constitute the same criminal conduct for sentencing.
DISCUSSION
Sufficiency of the Evidence — First Degree Robbery
Mr. Unruh first argues that the State failed to show that he unlawfully took personal property from Ms. Pringle. He argues that the evidence shows that he held Mr. and Ms. Pringle at gunpoint at the kitchen table while the women took Ms. Pringle's personal property from other parts of the house. He maintains that he did not physically take any of Ms. Pringle's personal property. Mr. Unruh also notes that the trial court did not instruct the jury on accomplice liability; therefore, he argues the women's actions cannot be attributed to him. From this, he urges us to reverse his conviction for robbing Ms. Pringle (count 2).
Mr. Unruh's challenge raises a question of law — whether he can be held legally responsible for actions of his cohorts, absent an instruction on accomplice liability. But the evidence here easily supports Mr. Unruh's conviction for robbery even without considering the actions of his accomplices. So we need not, then, address his specific assignment of error.
A person commits robbery when he unlawfully takes personal property from another against her will by the use of force. RCW 9A.56.190. The offender must use force to obtain possession of the property. Id. Any force which induces the owner to part with her property is sufficient. State v. Handburgh, 119 Wn.2d 284, 293, 830 P.2d 641 (1992).
The record shows that Mr. Unruh grabbed Ms. Pringle's cell phone out of her hand, left the Pringle house with it, and buried it. The cell phone was Ms. Pringle's. She used it to call 911. Mr. Unruh used force to take the phone against Ms. Pringle's will by grabbing it out of her hand. Mr. Unruh, then, robbed Ms. Pringle. Sufficient evidence supports his conviction on count 2. Two Counts of Robbery for a Single Taking
Mr. Unruh next argues that multiple counts of robbery may not be based on a single taking of property from, or from the presence of, multiple people even if each person has an interest in the property. State v. Tvedt, 153 Wn.2d 705, 720, 107 P.3d 728 (2005). Mr. Unruh contends that allowing multiple counts of robbery for a single taking create "incongruous results." Id. at 716 n. 4. He maintains that his taking and intent did not change with the number of victims.
Mr. Unruh claims that he should be convicted of only one count of robbery because his acts constituted one "taking." He cites Tvedt for support. The issue in Tvedt was whether the defendant's convictions on four counts of first degree robbery violated the constitutional prohibition against double jeopardy. Id. at 707-08. We review a claim of double jeopardy de novo. State v. Jackman, 156 Wn.2d 736, 746, 132 P.3d 136 (2006).
The constitutional prohibition against double jeopardy protects a defendant from being convicted multiple times for only one unit of a crime. Tvedt, 153 Wn.2d at 710. The Tvedt court concluded that "the unit of prosecution for robbery is each separate forcible taking of property from or from the presence of a person having an ownership, representative, or possessory interest in the property, against that person's will." Id. at 714-15. "Multiple convictions are proper only where the facts of the case support multiple units of prosecution committed." Id. at 717.
For example, Division Two of this court concluded that multiple convictions for two robberies were proper where the defendant robbed a couple at their home by taking a wallet from the husband and rings from the wife. State v. Turner, 31 Wn. App. 843, 846-47, 644 P.2d 1224 (1982).
The crimes must be the same in law and in fact to be the "same offense" under a proper double jeopardy analysis. State v. Zumwalt, 119 Wn. App. 126, 130, 82 P.3d 672 (2003). The offenses "are the same in fact if proof of the act charged in either count is sufficient to sustain a conviction under the other." Id. (citing State v. Springfield, 28 Wn. App. 446, 451, 624 P.2d 208 (1981)). But the offenses are not constitutionally the same, and double jeopardy does not apply, if the facts establishing one offense would not necessarily also prove the other. Id.
The two counts of robbery here are not the same in fact. Like the defendant in Turner, Mr. Unruh used force to obtain Ms. Pringle's cell phone by grabbing it from her hand. He then demanded that Mr. Pringle turn over his wallet and grabbed it from Mr. Pringle's hand. "These facts supported separate and independent charges of robbery. Each offense could stand alone." Turner, 31 Wn. App. at 847. Merger — Unlawful Imprisonment and Robbery Mr. Unruh next contends that his convictions for unlawful imprisonment merged with his robbery convictions because the unlawful imprisonment was used to effect the robbery.
We review de novo whether the merger doctrine applies. State v. Williams, 131 Wn. App. 488, 498, 128 P.3d 98 (2006), adhered to on remand, No. 23124-1-III, 2008 WL 4878905 (Wash.App. Nov. 13, 2008).
Central to a merger analysis is the question whether the legislature "intended to impose multiple punishments for a single act which violates several statutory provisions." State v. Vladovic, 99 Wn.2d 413, 419 n. 2, 662 P.2d 853 (1983). The merger doctrine applies only if the definition of one crime requires proof of the commission of another crime. In re Pers. Restraint of Fletcher, 113 Wn.2d 42, 51, 776 P.2d 114 (1989) (robbery and kidnapping do not merge). Offenses that could merge may, nonetheless, be punished separately if they have independent purposes or effects. Vladovic, 99 Wn.2d at 421.
Mr. Unruh was convicted of two counts of first degree robbery and two counts of unlawful imprisonment. We review the elements necessary for unlawful imprisonment and those necessary for first degree robbery to determine whether the legislature intended to separately punish the two crimes. Fletcher, 113 Wn.2d at 52; Williams, 131 Wn. App. at 498.
Unlawful imprisonment requires proof that a person knowingly restrained another person. RCW 9A.40.040(1). "Restrain" is defined as restricting "a person's movements without consent and without legal authority in a manner which interferes substantially with his liberty. Restraint is 'without consent' if it is accomplished by . . . physical force, intimidation, or deception." RCW 9A.40.010(1)(a).
Robbery requires the unlawful taking of personal property from another against his or her will by the use or threatened use of force, violence, or fear of injury to a person or property. RCW 9A.56.190. The "force or fear must be used to obtain . . . possession of the property, or to prevent or overcome resistance to the taking." Id. First degree robbery requires the State to prove that a person is armed with a deadly weapon in the commission of the robbery in addition to the elements of robbery. RCW 9A.56.200(1)(a)(i).
Unlawful imprisonment could be the "force" used to accomplish a robbery. Restraining another may prevent or overcome resistance to a taking. See RCW 9A.56.190. The robbery and unlawful imprisonment convictions here merge if (1) the force Mr. Unruh used to rob the Pringles is the same force he used to restrain them; and (2) the force Mr. Unruh used to restrain the Pringles has no separate purpose or effect. Zumwalt, 119 Wn. App. at 132.
But the force Mr. Unruh used to rob Ms. Pringle was not the same force he used to restrain her. Mr. Unruh did not use his gun to obtain possession of Ms. Pringle's cell phone. See RCW 9A.56.190 ("force or fear must be used to obtain . . . possession of the property"). He, instead, "ran up and grabbed the phone from [Ms. Pringle] and went downstairs, back downstairs." RP at 316. Mr. Unruh then used his gun and physical presence to restrain Ms. Pringle to the kitchen table by intimidation. The crimes of robbery and unlawful imprisonment against Ms. Pringle do not merge because Mr. Unruh used a separate act of force to accomplish each crime. Zumwalt, 119 Wn. App. at 132.
Mr. Unruh, however, used his gun and physical presence to restrain Mr. Pringle and obtain possession of his wallet. But restraining Mr. Pringle had an independent purpose or effect — it prevented Mr. Pringle from stopping Mr. Unruh's accomplices from robbing him. The merger doctrine does not apply here either, and these two offenses may also be punished separately because they had independent purposes and effects. Vladovic, 99 Wn.2d at 421. Same Criminal Conduct — Unlawful Imprisonment and Robbery
Mr. Unruh also argues that his unlawful imprisonment and robbery convictions constitute the same criminal conduct. He argues that the offenses do not need to share the same elements and that his intent for the crimes was the same — to restrain Mr. and Ms. Pringle so he could rob them. The application of a statute (here RCW 9.94A.589(1)(a)) to the facts is a question of law that we review de novo. State v. Ayala, 108 Wn. App. 480, 484, 31 P.3d 58 (2001).
Two or more crimes encompass the same criminal conduct when they (1) require the same criminal intent, (2) are committed at the same time and place, and (3) involve the same victim. RCW 9.94A.589(1)(a). The offenses do not constitute the same criminal conduct if any element is missing. State v. Maxfield, 125 Wn.2d 378, 402, 886 P.2d 123 (1994).
Two offenses share the same criminal intent when the offender's intent, objectively viewed, does not change from one crime to the next. State v. Vike, 125 Wn.2d 407, 411, 885 P.2d 824 (1994). We view intent objectively. State v. Rodriguez, 61 Wn. App. 812, 816, 812 P.2d 868 (1991). We look at the underlying statutes and the intent necessary to commit each crime. Id. We then look at the facts. Id. And we consider whether the crimes were intimately related, whether the criminal objective changed substantially from one crime to the next, and whether one crime furthered the other. State v. Burns, 114 Wn.2d 314, 318, 788 P.2d 531 (1990).
First degree robbery and unlawful imprisonment do not share statutory intent elements. First degree robbery does not have a statutory intent element. See RCW 9A.56.200. And the unlawful imprisonment statute requires proof that the defendant knowingly restrained the victim. RCW 9A.40.040(1).
Moreover, when we view the facts here objectively, Mr. Unruh's intent changed from when he robbed Ms. Pringle to when he unlawfully imprisoned her. And robbing Ms. Pringle did not further the unlawful imprisonment offense. The facts show that Mr. Unruh stole Ms. Pringle's cell phone to prevent her from calling for help. His objective then shifted to facilitating his accomplices' robberies and getaways by restricting Ms. Pringle's movements to the kitchen table. Stealing Ms. Pringle's cell phone was not essential to effectively restrict her movements. We, therefore, conclude that Mr. Unruh's offenses against Ms. Pringle do not share the same criminal intent. And the offenses, then, do not encompass the same criminal conduct. RCW 9.94A.589(1)(a).
Mr. Unruh's objective criminal intent also changed when he unlawfully imprisoned and then robbed Mr. Pringle. Mr. Unruh restricted Mr. Pringle's movements to the kitchen table so Mr. Pringle could not call for help, making it easier for Mr. Unruh's accomplices to rob the Pringles' home. But Mr. Unruh did not further prevent Mr. Pringle from calling for help when he took Mr. Pringle's wallet. His intent changed to stealing Mr. Pringle's property. We conclude that Mr. Unruh's offenses against Mr. Pringle do not constitute the same criminal conduct because his criminal objectives changed from one crime to the next. Blakely Problem — Deadly Weapon/Firearm
Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004).
The sentencing court imposed a five-year firearm enhancement despite a jury finding of a deadly weapon (requiring a two-year enhancement). Whether the trial court erred when it imposed a firearm sentencing enhancement based on a deadly weapon verdict is a question of law that we review de novo. Mohr v. Grant, 153 Wn.2d 812, 823, 108 P.3d 768 (2005).
Mr. Unruh contends that his sentence enhancements are unconstitutional because the trial court imposed firearm enhancements even though the jury found that he was armed only with a deadly weapon.
A deadly weapon enhancement adds two years to a sentence for a class A felony. RCW 9.94A.533(4)(a). A firearm enhancement adds five years. RCW 9.94A.533(3)(a). First degree robbery and first degree burglary are class A felonies. RCW 9A.56.200(2); RCW 9A.52.020(2).
We have already concluded on analogous facts that a deadly weapon finding is not enough to justify a firearm sentencing enhancement. Williams, 131 Wn. App. at 500. And the Supreme Court has held that "it can never be harmless to sentence someone for a crime not charged, not sought at trial, and not found by a jury." State v. Recuenco, 163 Wn.2d 428, 442, 180 P.3d 1276 (2008).
In Williams, the State alleged that the defendant was armed with a firearm when he committed robbery and burglary. 131 Wn. App. at 500. However, the special verdicts asked only whether the defendant was armed with a deadly weapon. Id. We reversed the firearm enhancements and remanded for resentencing because the verdict supported only a deadly weapon enhancement, not a firearm enhancement. Id. at 500-01.
The State here also alleged that Mr. Unruh was armed with a firearm while he committed robbery and burglary. And, like the special verdicts in Williams, the special verdicts in this case ask only whether Mr. Unruh was armed with a deadly weapon at the time he committed each crime. The trial court, nonetheless, imposed firearm enhancements. The sentencing court here erred when it imposed these enhancements because they were not supported by the verdict. The sentence enhancement special verdicts supported only a deadly weapon enhancement. The error is not harmless. Recuenco, 163 Wn.2d at 442. Statement of Additional Grounds
Mr. Unruh notes that his former attorney scheduled a pretrial hearing on a motion to suppress identification evidence but that the hearing never took place. He argues that his trial attorney failed to suppress the identification evidence. And he maintains that the identification evidence presented at trial showed a substantial likelihood of irreparable misidentification. Mr. Unruh also alleges that the State committed prosecutorial misconduct by offering his first attorney a job at the public defender's office and by creating a conflict of interest between him and his second attorney when it said it would call a codefendant as a witness but never did.
Mr. Unruh's statement raises three questions:
(1) Did the trial court err when it did not hold a hearing or rule on Mr. Unruh's motion to suppress identification evidence?
(2) Did Mr. Unruh's trial counsel provide ineffective assistance when he engaged in and did not object to the admissibility of the identification testimony offered by Mr. and Ms. Pringle?
(3) Did the State commit prosecutorial misconduct when it allegedly offered Mr. Unruh's first attorney a job as a public defender and created a conflict of interest between him and his second attorney by adding a witness to the witness list?
We address each in order.
Motion to Suppress. We review the trial court's application of a court rule de novo. State v. Neal, 144 Wn.2d 600, 607, 30 P.3d 1255 (2001).
CrR 3.6 provides the procedures for suppressing identification evidence. A party who moves to suppress identification evidence must file a motion, affidavit, and a memorandum of authorities. CrR 3.6(a). The court must then determine whether a hearing is required. Id. And it must enter a written order setting forth its reasons for concluding that no hearing is required. Id.
Mr. Unruh complains, "I never had or went to [the motion for suppression] hearing." Statement of Additional Grounds, at 2. Mr. Unruh moved to suppress all out-of-court and in-court identifications made by the Pringles.
Mr. Unruh did not complain or give the trial court a chance to correct its error. He did not repeat his request for a hearing; he did not object to Mr. Pringle's in-court identification testimony (RP at 296); he did not object to Ms. Pringle's in-court identification testimony (RP at 323-24); and he had a CrR 3.5 hearing. RP at 7. In short, there is no showing that Mr. Unruh made any attempt to preserve this objection. More importantly, the prejudice shown in other cases that address suggestive identification procedures is not present here. State v. Traweek, 43 Wn. App. 99, 715 P.2d 1148 (1986); State v. Maupin, 63 Wn. App. 887, 822 P.2d 355 (1992). Mr. Unruh's accomplice testified without equivocation that Mr. Unruh robbed the Pringles.
Ineffective Assistance. We review ineffective assistance of counsel claims de novo. State v. Meckelson, 133 Wn. App. 431, 435, 135 P.3d 991 (2006) (citing Strickland v. Washington, 466 U.S. 668, 698, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984)), review denied, 159 Wn.2d 1013 (2007).
Mr. Unruh argues that the identification evidence presented at trial showed a substantial likelihood of irreparable misidentification.
We apply the Strickland two-part test to evaluate claims of ineffective assistance of counsel. Strickland, 466 U.S. at 687; State v. Thomas, 109 Wn.2d 222, 225, 743 P.2d 816 (1987). To prevail, a defendant must prove that (1) defense counsel's conduct was deficient because it fell below an objective standard of reasonableness, and (2) the deficient conduct was prejudicial. Thomas, 109 Wn.2d at 226. Prejudice is established where there is a reasonable probability that, except for counsel's unprofessional errors, the result of the proceeding would have been different. State v. McFarland, 127 Wn.2d 322, 334-35, 899 P.2d 1251 (1995). "A failure to establish either element of the test defeats the ineffective assistance of counsel claim." In re Pers. Restraint of Davis, 152 Wn.2d 647, 673, 101 P.3d 1 (2004).
Mr. Unruh has failed to establish the prejudice prong here. His attorney did not object when the State asked Mr. Pringle to identify the person who robbed his home. And Mr. Unruh suggests no grounds for any such objection. Mr. Unruh's counsel challenged Ms. Pringle's identification of Mr. Unruh as the perpetrator. But the State produced sufficient evidence, independent of the Pringles' identification testimony, to prove that Mr. Unruh was the person who entered the Pringles' home and robbed them. A codefendant, Ms. Drake, testified that Mr. Unruh was involved in robbing the Pringle home. The results of this trial, then, would not have changed, even without Mr. and Ms. Pringles' identification testimony. There was, then, no ineffective assistance of counsel.
Prosecutorial Misconduct. We review assignments of manifest constitutional error de novo. State v. Curtis, 110 Wn. App. 6, 11, 37 P.3d 1274 (2002).
An assignment of error based on prosecutorial misconduct is generally waived on appeal if the defendant fails to object at trial. State v. Russell, 125 Wn.2d 24, 86, 882 P.2d 747 (1994); RAP 2.5(a). We will review the claim only if the challenged conduct rose to the level of a manifest constitutional error, i.e., it was "'so flagrant and ill intentioned that it evinces an enduring and resulting prejudice that could not have been neutralized by an admonition to the jury.'" State v. Gentry, 125 Wn.2d 570, 640, 888 P.2d 1105 (1995) (quoting State v. Hoffman, 116 Wn.2d 51, 93, 804 P.2d 577 (1991); RAP 2.5(a)(3).
Mr. Unruh did not object to any of the prosecutor's alleged conduct. He also has not produced evidence that supports his allegations, and we find none in this record. He, therefore, fails to satisfy his burden of showing manifest constitutional error. Mr. Unruh waived his prosecutorial misconduct claim. Conclusion
We affirm Mr. Unruh's convictions and the court's merger and same criminal conduct decisions. We reverse the firearm enhancements and remand for imposition of deadly weapon enhancements.
A majority of the panel has determined that 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.
SCHULTHEIS, C.J. and BROWN, J., concur.