IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON, No. 69543-6-1
Respondent, DIVISION ONE
v.
ZACHARY DANIEL NGUYEN, UNPUBLISHED
Appellant. FILED: April 28, 2014
Cox, J. - Zachary Nguyen appeals his judgment and sentence entered
after his convictions for first degree burglary, attempted first degree robbery, and
second degree assault. The State properly concedes that the assault conviction
must be vacated under the merger doctrine, and we accept this concession. But
a unanimity jury instruction was not required because the evidence indicates an
ongoing course of conduct. Nguyen makes additional claims in his Statement of
Additional Grounds, but none have merit.
We vacate the assault conviction and remand for resentencing. We affirm
the other two convictions.
In 2011, Philip Maxie had a party at his home while his parents were out of
town. M.M. and B.C. attended this party.
The next day M.M. and B.C. were with Nguyen and three other males.
The group went to Maxie's home, and M.M. and B.C. knocked on the door.
No. 69543-6-1/2
While M.M. and B.C. were talking with Maxie, three of the males, including
Nguyen, entered the home.
Maxie testified that a male with a gun told him to "get on the ground." He
heard the gun click but no shot was fired. The male then hit him with the gun.
Maxie was eventually able to run to a neighbor's home and call for help.
M.M. and B.C. testified that Nguyen hit Maxie with the gun.
After the incident, Maxie told the prosecutor that nothing was missing from
the home. M.M. testified that the three males were mad because "they didn't get
anything out of the house." Maxie's mother testified that when she returned to
her home after being out of town, she discovered that she was missing property.
By amended information, the State charged Nguyen with first degree
burglary, first degree robbery, and second degree assault, each with firearm
enhancements. The jury was instructed on these charges along with the lesser-
included offense of first degree attempted robbery.
The jury convicted Nguyen of first degree burglary, attempted first degree
robbery, and second degree assault. It also found that Nguyen was armed with a
firearm for these convictions.
Nguyen appeals.
MERGER DOCTRINE
Nguyen argues that his conviction for second degree assault "violated the
prohibition against double jeopardy, when the assault merged into the attempted
robbery conviction." The State concedes this point, and we accept the
concession.
No. 69543-6-1/3
"The guaranty against double jeopardy protects against multiple
punishments for the same offense."1 A determination of whether a defendant's
double jeopardy rights were violated turns on whether the legislature intended to
authorize multiple punishments for the crimes at issue.2 "If the legislature
authorized cumulative punishments for both crimes, then double jeopardy is not
offended."3
For double jeopardy claims, a court engages in a "three-part test" to
determine the legislature's intent:
First, the court searches the criminal statutes involved for any
express or implicit legislative intent. Second, if the legislative intent
is unclear, the court turns to the "same evidence" Blockburqer test,
which asks if the crimes are the same in law and in fact. Third, the
merger doctrine may be an aid in determining legislative intenU41
Here, the parties concentrate only on the third part of this test—the merger
doctrine. Thus, we focus our analysis on this doctrine.
Under the merger doctrine, "when the degree of one offense is raised by
conduct separately criminalized by the legislature, we presume the legislature
1 State v. Esparza. 135 Wn. App. 54, 59, 143 P.3d 612 (2006).
3 State v. Freeman, 153 Wn.2d 765, 771, 108 P.3d 753 (2005).
4 State v. Chesnokov. 175 Wn. App. 345, 349, 305 P.3d 1103 (2013)
(citing State v. Kier. 164 Wn.2d 798, 804, 194 P.3d 212 (2008); State v. Calle.
125 Wn.2d 769, 776, 888 P.2d 155 (1995); Blockburqer v. United States, 284
U.S. 299, 304, 52 S. Ct. 180, 76 L. Ed. 306 (1932); Freeman, 153 Wn.2d at 772-
73).
No. 69543-6-1/4
intended to punish both offenses through a greater sentence for the greater
crime."5
There is an exception to this doctrine. Even if two convictions appear to
be for the same offense or for charges that would merge, "ifthere is an
independent purpose or effect to each, they may be punished as separate
offenses."6
In State v. Zumwalt, a consolidated case within State v. Freeman, the
supreme court considered whether Zumwalt's convictions for first degree robbery
and second degree assault merged.7 There, Zumwalt punched the victim in the
face and robbed her.8 The robbery charge was based on the infliction of bodily
injury, and the assault charge was based on the reckless infliction of bodily
harm.9
First, the supreme court looked to the statutes and concluded that there is
"no evidence that the legislature intended to punish second degree assault
separately from first degree robbery when the assault facilitates the robbery."10
Then, the court noted that in order to prove first degree robbery as charged and
proved by the State, the State had to prove that Zumwalt committed an assault in
5 Freeman, 153 Wn.2d at 772-73.
6 Id, at 773.
7 153 Wn.2d 765, 770, 108 P.3d 753 (2005).
*\±
9 State v. Zumwalt, 119 Wn. App. 126, 131 -32, 82 P.3d 672 (2003).
10 Freeman, 153 Wn.2d at 776.
No. 69543-6-1/5
furtherance of the robbery.11 Accordingly, the court concluded that the merger
doctrine applied.12 Finally, the court determined that because there was no
evidence in the record that the violence used to complete the robbery had some
independent purpose or effect, the exception to merger did not apply.13
Here, as the State properly concedes, Nguyen's convictions for attempted
first degree robbery and second degree assault violate double jeopardy. As
charged and proved, Nguyen was guilty of attempted first degree robbery
because he inflicted bodily injury on Maxie. The State was required to prove that
Nguyen engaged in conduct amounting to second degree assault in order to
elevate his attempted robbery conviction to the first degree. Additionally, the
evidence at trial established that the assault on Maxie had no purpose other than
to further the attempted robbery.
Because the second degree assault conviction merges with the attempted
first degree robbery conviction, the proper remedy is to vacate the assault
conviction and remand for resentencing.14
UNANIMITY JURY INSTRUCTION
Nguyen next argues that his constitutional rights were violated because
the jury instructions failed to require unanimity as to what act constituted the
11 ]d at 778.
12 Id,
13 Id, at 779.
14 See State v. Portrev, 102 Wn. App. 898, 906-07, 10 P.3d 481 (2000);
Freeman, 153 Wn.2d at 774-76.
No. 69543-6-1/6
"substantial step" toward the commission of attempted robbery in the first degree.
We disagree.
Criminal defendants have a right to a unanimous jury verdict.15 Where the
State alleges multiple acts and any one of them could constitute the crime
charged, the jury must be unanimous as to which act or incident constitutes the
crime.16 The constitutional requirement of unanimity is assured by either (1)
requiring the State to elect the act upon which it will rely for conviction, or (2)
instructing the jury that it must be unanimous that the same criminal act has been
proved beyond a reasonable doubt.17 The instruction is based on State v.
Petrich and its progeny.18
The Petrich rule applies "only where the State presents evidence of
'several distinct acts.'"19 It does not apply where the evidence indicates a
"'continuing course of conduct.'"20 To determine whether criminal conduct
constitutes one continuing act, the facts must be evaluated in a commonsense
manner.21 Courts may consider whether the acts occurred at different times or
15 State v. Kitchen, 110 Wn.2d 403, 409, 756 P.2d 105 (1988) (citing U.S.
Const, amend. 6; Const, art. 1, § 22).
16 Id, at 411.
17 State v. Barrinqton. 52 Wn. App. 478, 480, 761 P.2d 632 (1988).
18 101 Wn.2d 566, 683 P.2d 173 (1984).
19 State v. Handran, 113 Wn.2d 11, 17, 775 P.2d 453 (1989) (internal
quotation marks omitted) (quoting Petrich, 101 Wn.2d at 571).
20 jd. (quoting Petrich, 101 Wn.2d at 571).
21 Id
No. 69543-6-1/7
places, whether they involved the same victim, and whether in each act the
defendant intended to secure the same objective.22
Here, viewing the evidence in a commonsense manner, it shows a series
of acts that intended to achieve the objective of taking property from the Maxie
home. Moreover, these acts occurred during a short timeframe and involved the
same victim. Because the evidence indicates an ongoing course of conduct, the
Petrich rule does not apply.
Nguyen does not explain how the State presented evidence of "'several
distinct acts,' each of which could be the basis for a criminal charge."23 Instead,
he argues that "the prosecutor never elected which act or acts it was relying upon
to establish a 'substantial step' for the inchoate offense." But the prosecutor did
not need to make such an election because, as just discussed, the evidence
indicates a continuing course of conduct. A unanimity instruction was not
required "because there [was] no danger that some jurors would have found the
occurrence of one crime while other jurors found the occurrence of a different
crime."24
STATEMENT OF ADDITIONAL GROUNDS
Nguyen raises a number of issues in his statement of additional grounds.
None are persuasive.
22 State v. Fiallo-Lopez, 78 Wn. App. 717, 724, 899 P.2d 1294 (1995).
23 Petrich, 101 Wn.2d at 571.
24 State v. Simonson, 91 Wn. App. 874, 884, 960 P.2d 955 (1998).
No. 69543-6-1/8
First, Nguyen argues that the prosecutor committed misconduct because
she expressed a personal opinion about the credibility of two of the State's
witnesses. To establish a prosecutorial misconduct claim, the State must show
misconduct and resulting prejudice.25 "Counsel are permitted latitude to argue
the facts in evidence and reasonable inferences."26 Additionally, "counsel may
comment on a witness' veracity as long as he does not express it as a personal
opinion and does not argue facts beyond the record."27
Here, there was no misconduct. The prosecutor did not give her personal
opinion about the witnesses. Rather, she was explaining the circumstances of
the pre-trial interviews with the witnesses, which was part of the witnesses'
testimony. Thus, this argument fails.
Second, Nguyen asserts that a witness testified about an unrelated
incident in this case, which violated an order in limine. Nguyen does not
specifically identify the "unrelated incident" in his brief, but the part of the record
he cites references a prior conviction. A review of the witness's testimony shows
that the witness did not actually discuss any unrelated incident. The witness
asked for clarification of a question during cross-examination without revealing
any unrelated incident. Thus, this argument is not persuasive.
Third, Nguyen contends that his right to due process was violated
because one juror saw him in shackles, and the trial court did not conduct "an
25 State v. Smith, 104 Wn.2d 497, 510, 707 P.2d 1306 (1985).
26 id,
27 Id. at 510-11.
No. 69543-6-1/9
inquisition to detect if the jury pool was tainted by the juror." After a court recess
during the voir dire process, an officer informed the court that "Juror No. 7 was
sitting outside the courtroom and saw Mr. Nguyen brought up in restraints." The
trial court decided that the proper remedy was to dismiss Juror No. 7. Counsel
agreed with this remedy.
Nguyen cites no authority to support his assertion that an "inquisition" of
the jury pool was necessary. Moreover, "Passing glimpses of a defendant in
restraints are insufficient on their own to find the existence of prejudice."28 For
these reasons, this argument fails.
Fourth, Nguyen claims his counsel was ineffective because he failed to
move for a mistrial after the juror saw him in restraints or to request an
"inquisition" of the jury pool. But, given the previous discussion, Nguyen is not
able to show that his counsel's performance fell below an objective standard of
reasonableness and that this prejudiced his trial.29 Thus, this claim also fails.
Fifth, Nguyen argues that a unanimity jury instruction should have been
given at trial. We need not address this argument as it is adequately addressed
in his appellate counsel's brief.30
28 In re Crace, 157 Wn. App. 81, 103, 236 P.3d 914 (2010). reversed on
other grounds, 174 Wn.2d 835, 280 P.3d 1102 (2012).
29 Strickland v. Washington. 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed.
2d 674 (1984); State v. McFarland. 127 Wn.2d 322, 334-35, 899 P.2d 1251
(1995).
30 See, e.g., State v. Gomez, 152 Wn. App. 751, 754, 217 P.3d 391 (2009)
(refusing to review a defendant's statement of additional grounds because he
raised no new issues).
No. 69543-6-1/10
We vacate the assault conviction and remand for resentencing. We affirm
the other two convictions.
6cxt J~-
WE CONCUR:
^J^^dlJL.
10
State Of Washington v. Zachary D. Nguyen
Combined Opinion