FILED
COURT OF APPEALS
IN THE COURT OF APPEALS OF THE STATE OF WASHINGT& IISIO'i II
2015 JUN —4
DIVISION II Ati 8: 34
STA aGT OPd
STATE OF WASHINGTON,
Respondent,
No. 43762 -7 -II
consolidated with
No. 45418 -1 - II
Y Ult
EPU
v.
LA' JUANTA LE' VEAR CONNER, UNPUBLISHED OPINION
Appellant.
MELNICK, J. — La'Juanta Le'Vear Conner appeals his 24 convictions based on, or related
to, a series of home invasion robberies and burglaries.' Conner argues ( 1) the trial court abused
its discretion when it allowed the State to exercise a peremptory challenge after the trial started,
2) the trial court erred by allowing improper opinion testimony, ( 3) his attorney' s failure to object
to improper opinion testimony provided him ineffective assistance of counsel, ( 4) the trial court
erred when it provided a missing witness instruction to the jury, ( 5) the trial court improperly
commented on the evidence, and ( 6) the trial court erroneously imposed a fourteenth firearm
enhancement related to a charge of which Conner was acquitted. In his statement of additional
grounds ( SAG), Conner asserts insufficient evidence exists to support his convictions of unlawful
possession of a firearm and possession of a stolen firearm. He further asserts prosecutorial
misconduct.
Conner filed a personal restraint petition (PRP) that is consolidated with this direct appeal.
In his PRP, Conner argues ( a) the State' s second amended information is invalid because the State
1 Conner was convicted of one count of conspiracy to commit burglary in the first degree, two
counts of unlawful possession of a firearm in the second degree, two counts of possession of a
stolen firearm, eight counts of robbery in the first degree, five counts of burglary in the first degree,
four counts of theft in the second degree, one count of theft in the third degree, and one count of
theft of a firearm.
43762 -7 -II / 45418 -8 -II
did not file an amended statement of probable cause, ( b) the jury instructions relieved the State of
its burden to prove all elements of the crimes beyond a reasonable doubt, ( c) the State vindictively
prosecuted him, ( d) the trial court erred when it sentenced him by imposing an exceptional
sentencing without findings, by failing to conduct a same criminal conduct analysis, and by
violating his double jeopardy rights.
We hold that the trial court erred when it allowed the State to exercise a peremptory
challenge after the jury was sworn, but that the error did not prejudice Conner. We also hold that
the trial court erred by instructing the jury using a missing witness instruction, but that the error
was harmless. We vacate Conner' s theft in the third degree conviction because it violates the
prohibition against double jeopardy. We affirm Conner' s remaining convictions. Additionally,
we hold that the trial court erroneously sentenced Conner on one firearm enhancement related to
a charge of which he was acquitted. We remand for resentencing on the remaining convictions
and twelve firearm enhancements.
FACTS
I. HOME INVASIONS AND ARREST
The State, by second amended information, charged Conner with 26 separate offenses
based on a series of home invasion robberies and burglaries in Kitsap County, 14 of which included
firearm enhancements.
A. Twelfth Street ( I)
On September 15, 2010, Robert and Aaron Dato were present at their apartment on Twelfth
Street in Bremerton that they shared with Thomas Harveson, who was not home at the time.
Conner, Kevion Alexander, Anthony Adams, and Troy Brown entered the apartment wearing
bandanas, carrying guns, and making demands for property. They took the Datos' personal
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property from their persons or in their presence, and they took property that belonged to Harveson.
Conner carried a Hi -Point .40 pistol during the commission of this crime. Based on this incident,
the State charged Conner with two counts of robbery in the first degree, one count of burglary in
the first degree, and one count of theft in the second degree. The State alleged three firearm
enhancements.
B. Twelfth Street ( II)
On September 28, 2010, the Datos and a friend, Jeffrey Turner, were at the Twelfth Street
apartment in Bremerton. Harveson was not at home. Conner, Alexander, and Adams entered the
apartment wearing bandanas, carrying guns, and making demands for money. They took personal
property from the Datos. They also took personal property belonging to Harveson. Based on this
incident, the State charged Conner with three counts of robbery in the first degree, one count of
burglary in the first degree, and one count of theft in the second degree. The State alleged four
firearm enhancements.
C. Shore Drive
On September 28, 2010, Brett Cummings was in his studio apartment on Shore Drive in
Bremerton. Conner stood outside while Alexander and Adams entered Cummings' s apartment
carrying guns and making demands for property. Either Alexander or Adams pushed Cummings
to the ground and Conner and Adams hit him over the head with the butt of their guns. They took
Cummings' s personal property. Conner carried a Hi -Point . 40 pistol during the commission of
this home invasion. Based on this incident, the State charged Conner with one count of robbery
in the first degree, one count of burglary in the first degree, and one count of theft in the third
degree. The State alleged two firearm enhancements.
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D. Weatherstone Apartments
On the night of October 2, 2010, Conner, Alexander, Adams, and Jerrell Smith entered
Kimberly Birkett' s apartment at the Weatherstone Apartments. They took Birkett' s personal
property. Conner carried a Hi -Point .40 pistol. Based on this incident, the State charged Conner
with one count of burglary in the first degree and one count of theft in the second degree. The
State alleged one firearm enhancement.
E. Wedgewood Lane
On the night of November 3, 2010, Aaron Tucheck, Ann Tucheck, and Keefe Jackson,
were at their residence on Wedgewood Lane. Conner, Alexander, and Brown entered the residence
carrying guns, making demands for property, and ordering Aaron to open a safe. They took
personal property, including a firearm and a debit card, belonging to the Tuchecks and Jackson.
Conner carried a Hi -Point . 40 pistol during the commission of these crimes. A co- defendant
carried a Taurus . 44 revolver during the commission of the Wedgewood Lane home invasion.
Based on this incident, the State charged Conner with two counts of robbery in the first degree,
one count of burglary in the first degree, one count of theft of a firearm, and one count of theft of
an access device in the second degree. The State alleged three firearm enhancements.
F. Arrest
On November 17, 2010, the police arrested Conner during a high -risk traffic stop. Conner
was a passenger in the truck occupied by two of his co- defendants. Prior to the stop, Conner sat
in the passenger seat when the driver of the vehicle said, "[ W] e got two gats locked and loaded
ready to go." VI Report of Proceedings ( RP) at 869. Law enforcement executed a search warrant
on the truck and found a bag in the bed of the truck containing two loaded firearms, a Hi -Point .40
pistol with a filed off serial number and a Taurus . 44 revolver. Law enforcement also located a
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baggies of marijuana in the cab of the truck where a co- defendant had been sitting. Based on this
incident, the State charged Conner with one count of conspiracy to commit burglary in the first
degree, two counts of unlawful possession of a firearm in the second degree, two counts of
unlawful possession of a stolen firearm, and one count of possession of marijuana. The State
alleged one firearm enhancement.
Law enforcement subsequently searched the apartment of Conner' s romantic partner,
Rachel Duckworth, and found stolen property from the crimes described above. Based on this
search and seizure, the State charged Conner with one count of possession of stolen property in
the third degree.
II. TRIAL
A. Peremptory Challenge
After the parties selected a jury but before the court swore them in, juror 4 stated that she
remembered that the judge had presided over the trial where her son was convicted of attempted
murder. The State asked the trial court, but not the juror, whether the juror testified at her son' s
trial. The trial court replied in the negative. Following additional questioning, the trial court found
that juror 4 showed no bias or prejudice. The State neither challenged the juror for cause nor
exercised. its remaining peremptory challenge. The judge swore in juror 4 with the rest of the
panel.
The State began its case in chief and presented witnesses. Two days later, the State
informed the trial court it learned juror 4 had testified in her son' s trial and that the prosecutor had
accused her of lying and manipulating testimony. The State also asserted that the juror indicated
she had talked to a family member about Conner' s trial, which caused her to remember that the
judge presided over her son' s trial. The State moved to excuse the juror, but the trial court ruled
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that the juror had not clearly violated the trial court' s orders and that it "[ could not] excuse her for
cause based upon answers to questions that she provided earlier because we had already addressed
that issue before impaneling her." VI RP at 651. The trial court took the State' s motion under
advisement.
The next day, the State asked to exercise its remaining peremptory challenge to excuse
juror 4. Conner objected. The State argued that it relied on the trial court' s faulty recollection that
the juror had not been a witness in her son' s trial and it would have struck her if the State had been
aware she testified. Relying on State v. Williamson, 100 Wn. App. 248, 996 P. 2d 1097 ( 2000), the
trial court allowed the State to exercise its remaining peremptory challenge and it excused juror 4.
Following this juror' s excusal, 12 jurors and one alternate remained.
B. Opinion Testimony
Detective Mike Davis testified about his post- arrest questioning of Conner. During cross -
examination, Conner elicited from Detective Davis that he used a " ruse" when questioning Conner.
V RP at 605. On redirect, Detective Davis explained he employs a ruse when questioning suspects
t]o elicit the truth" and when he " believe[ s] that [ the facts say] otherwise what the person is
telling me." VI RP at 730. Detective Davis said he uses a ruse " to get the facts. That is what I
am is a fact -finder." VI RP at 730. Conner did not object to this testimony.
C. Missing Witness Instruction
The State presented evidence that Duckworth exhibited hostility towards Detective Davis.
The State also played recordings of jail calls between Conner and Duckworth in which Conner
made many comments including that he was " done with all that [ explicative]" and " changing [ his]
ways." Supp. Clerk' s Papers ( CP) at 355, 360. Conner testified that the recordings meant he
would be leaving the streets behind and quit selling drugs.
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The State requested a missing witness instruction. It argued that Duckworth, identified as
a defense witness, exhibited hostility to law enforcement, could have supported Conner' s version
of the jail calls, and could have testified regarding the stolen property found in her apartment.
Conner argued that the State could have called Duckworth.
The trial court found that Duckworth' s testimony would have been material and not
cumulative, Duckworth' s absence was not adequately explained, Duckworth was particularly
within Conner' s control; Conner did not adequately explain Duckworth' s absence, and
Duckworth' s testimony would neither have infringed on Conner' s constitutional rights to remain
silent nor shifted the burden to Conner to prove his innocence. Thus, the trial court instructed the
jury using a missing witness instruction and permitted the State to argue Duckworth' s absence in
its closing argument.
D. Closing Argument
During closing argument, Conner argued that the police and prosecutor' s office coached
witnesses regarding their testimony. The State objected:
DEFENSE COUNSEL:] Mr. Smith is no fool. Like any kid, he' s just been told
what direction to take with his lies. Mook Alexander went through the same thing,
whether he got it from the prosecutor' s office, when they interviewed him from the
detectives, from his own lawyer —
PROSECUTOR]: Objection, Your Honor. These are facts not in evidence.
THE COURT: Sustained. Move on, [ Defense Counsel].
DEFENSE COUNSEL]: Mr. Alexander knew which way that he needed to go. At
the time that he came forth in March, and they needed to cut his sentence way down,
he knew, and in trial the only person that they had to get was Mr. Conner.
PROSECUTOR]: Objection, Your Honor. Move to strike.
THE COURT: Members of the jury, you will disregard the last argument of
Counsel.
DEFENSE COUNSEL]: Mr. Conner was the person left that they did not have the
evidence that they needed, and Mook Alexander —
PROSECUTOR]: Objection, Your Honor. Move to strike.
THE COURT: Sustained. Move on, [ Defense Counsel].
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XVII RP at 2590 -91. Conner later argued that Smith and Alexander changed their stories because
they are experienced liars. The State objected:
DEFENSE COUNSEL:] Once lying, they don' t stop lying....
they start So they
are very quick, and they move very quick. So it' s almost like shadow boxing
because they know how to do it because they are experienced in it. They have been
doing it a long time.
PROSECUTOR]: Objection, Your Honor.
THE COURT: Sustained. Move on.
DEFENSE COUNSEL]: I submit that the evidence shows that when you look in
your record in terms of what Mr. Mook Alexander' s record is, that he talks about
on the stand —
PROSECUTOR]: Objection, Your Honor. Facts not in evidence.
XVIII RP at 2613 -2614.
Outside ofthe jury' s presence, the State argued that the record contained nothing to suggest
Alexander has been a liar for a long time. Conner argued that Alexander' s prior crimes of
dishonesty meant that he was an experienced liar. The trial court sustained the objection because
the statement "' they have been lying for a long time' is improper argument based upon the facts
that are in evidence." XVIII RP at 2616. The trial court noted that Smith had no prior convictions
and that " one can be a theft [ sic], which is dishonest, and one can be a liar." XVIII RP at 26.15-
16. The trial court sustained the objection and instructed the jury to disregard Conner' s counsel' s
last remarks.
E. Verdict and Sentencing
The jury found Conner guilty on all counts except possession of marijuana and possession
of stolen property in the third degree. Additionally, the jury specially found that Conner was armed
with a firearm on all but one count alleged. The trial court imposed a standard range sentence of
1148. 5 months. Conner appeals. He also filed a PRP that is consolidated with this direct appeal.
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ANALYSIS
I. PEREMPTORY CHALLENGE
Conner argues that the trial court erred by allowing the State to exercise a peremptory
challenge after the jury had been sworn and witnesses had testified. He argues that the trial court
did not follow proper procedures. We hold that the trial court abused its discretion by allowing to
State to exercise its remaining peremptory challenge on juror 4, but no prejudice resulted.
We review a trial court' s decision to excuse a juror for abuse of discretion. State v. Elmore,
155 Wn.2d 758, 768, 781, 123 P. 3d 72 ( 2005); State v. Ashcraft, 71 Wn. App. 444, 461, 859 P. 2d
60 ( 1993). " A discretionary determination will not be disturbed on appeal without a clear showing
of abuse of discretion, that is, discretion that is manifestly unreasonable or exercised on untenable
grounds, or for untenable reasons." State v. Smith, 90 Wn. App. 856, 859 -60, 954 P. 2d 362 ( 1998).
A trial court abuses its discretion if its decision is based on a misunderstanding of the underlying
law. State v. Burke, 163 Wn.2d 204, 210, 181 P. 3d 1 ( 2008).
CrR 6. 4( e) sets forth the procedures for exercising peremptory challenges in criminal trials.
After prospective jurors have been passed for cause, peremptory challenges shall be exercised
alternately." CrR 6. 4( e)( 2). Once a party accepts the jury as presently constituted, that party may
only peremptorily challenge jurors later added to that group. CrR 6. 4( e)( 2). Here, the parties had
already accepted the jury; therefore, the State could not use a peremptory challenge on juror 4.
Because the trial court misapplied the court rule, it abused its discretion.2
2 The trial court relied on Williamson, 100 Wn. App. at 253. In that case, unforeseen circumstances
existed to justify the court' s action because a juror did not disclose that she knew the victim until
after the trial court swore in the jury and the State' s first witness began to testify. Williamson, 100
Wn. App. at 252. We do not have unforeseen circumstances in this case because juror 4 informed
the trial court that the judge presided over her son' s trial before the sworn jury started hearing the
case.
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However, the trial court' s error caused no prejudice. The Sixth Amendment of the United
States Constitution and article 1, section 22 of the Washington Constitution guarantee a defendant
the right to a fair trial by an impartial jury. State v. Latham, 100 Wn.2d 59, 62 -63, 667 P. 2d 56
1983). But the "[ d] efendant has no right to be tried by a particular juror or by a particular jury."
State v. Gentry, 125 Wn.2d 570, 615, 888 P. 2d 1105 ( 1995). The constitutional requirement of a
randomly selected jury is " satisfied by the initial random selection of jurors and alternate jurors
from the jury pool." State v. Coe, 109 Wn.2d 832, 842, 750 P. 2d 208 ( 1988).
If a juror becomes unable to perform his or her duty after formation of the jury, the trial
court may discharge the juror. CrR 6. 1( c). In such instance, an alternate juror may replace the
discharged juror. CrR 6. 5. Here, following juror 4' s excusal, 12 jurors plus an alternate remained.
The State and Conner selected all of the jurors and alternate jurors. Conner makes no showing and
does not argue that a biased jury heard his case. Therefore, no violation of Corner' s right to an
impartial jury occurred and he has demonstrated no prejudice that resulted from the excusal of
juror 4. The error was harmless.
II. OPINION TESTIMONY
Conner argues that the trial court erred by admitting Detective Davis' s testimony regarding
his use of a ruse. He argues that this testimony prejudiced him by allowing opinion testimony on
an ultimate issue for the jury and therefore his guilt. Conner initially elicited the testimony on use
of a ruse. Additionally, Conner did not object, move to strike, or ask that the jury be instructed to
disregard Detective Davis' s testimony on redirect. Therefore, Conner failed to preserve any
challenge to this testimony and we decline to review it. RAP 2. 5( a).
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III. INEFFECTIVE ASSISTANCE OF COUNSEL
Conner contends that he received ineffective assistance of counsel because his attorney did
not object to Detective Davis' s testimony regarding his use of a ruse. He argues that this failure
to object resulted in prejudice because " there was nothing preventing the jury from considering
that opinion [ that Conner was untruthful] when evaluating Conner' s credibility." Appellant' s Br.
at 40. We disagree and hold that Conner did not receive ineffective assistance of counsel.
A. Standard of Review
Ineffective assistance of counsel is a mixed question of law and fact we review de novo.
Strickland v. Washington, 466 U. S. 668, 698, 104 S. Ct. 2052, 80 L. Ed. 2d 674 ( 1984). A
defendant claiming ineffective assistance of counsel has the burden to establish that ( 1) counsel' s
performance was deficient and ( 2) the performance prejudiced the defendant' s case. Strickland,
466 U. S. at 687. Failure to establish either prong is fatal to an ineffective assistance of counsel
claim. Strickland, 466 U.S. at 700.
An attorney' s performance is deficient if it falls " below an objective standard of
reasonableness based on consideration of all the circumstances." State v. McFarland, 127 Wn.2d
322, 334 -35, 899 P. 2d 1251 ( 1995). Deficient performance prejudices a defendant if there is a
reasonable probability that, but for counsel' s deficient performance, the outcome of the
proceedings would have been different." State v. Kyllo, 166 Wn.2d 856, 862, 215 P. 3d 177 ( 2009).
Our scrutiny of counsel' s performance is highly deferential; we strongly presume reasonableness.
State v. Grier, 171 Wn.2d 17, 33, 246 P. 3d 1260 ( 2011). To rebut this presumption, a defendant
bears the burden of establishing the absence of any legitimate trial tactic explaining counsel' s
performance. Grier, 171 Wn.2d at 33.
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B. No Ineffective Assistance of Counsel
Even assuming, without deciding, that Detective Davis' s opinion testimony went to an
ultimate issue for the jury, Conner has not established the absence of any legitimate trial tactic to
explain his counsel' s performance. Conner' s lawyer first raised Detective Davis' s use of a ruse
on cross -examination. He asked Detective Davis if he lied to Conner when he told him that Smith
and Perez accused Conner of handling the Hi -Point .40 pistol. Detective Davis responded that he
used a ruse. Conner' s counsel followed up by asking, " That is something that you do in police
work ... you make people think that you have something when you don' t have something ?" V
RP at 608. Detective Davis answered, " That is correct." V RP at 608. On redirect, the State asked
Detective Davis to define ruse, and Conner' s counsel did not object. Conner fails to show that no
conceivable legitimate trial tactic explains his counsel' s performance. See Grier, 171 Wn.2d at
33. In fact, this line of questioning was consistent with Conner' s overall defense strategy of
denying his involvement in the crimes while implying that Conner became a target of the police.
Conner cannot demonstrate deficient performance; therefore, we need not address the second
prong. See Grier, 171 Wn.2d at 33.
IV. MISSING WITNESS INSTRUCTION
Conner argues that his convictions should be reversed because the trial court misapplied
the missing witness doctrine and improperly instructed the jury. He also argues that the trial court
improperly permitted the prosecutor to argue this doctrine. We hold that that the trial court
misapplied the missing witness doctrine, but the error was harmless.
A. Standard of Review
W] hether legal error in jury instructions could have misled the jury is a question of law,
which we review de novo." State v. Montgomery, 163 Wn.2d 577, 597, 183 P. 3d 267 ( 2008). We
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review a trial court' s rulings on improper prosecutorial argument for abuse of discretion.
Montgomery, 163 Wn. 2d at 597. " A discretionary determination will not be disturbed on appeal
without a clear showing of abuse of discretion, that is, discretion that is manifestly unreasonable
or exercised on untenable grounds, or for untenable reasons." Smith, 90 Wn. App. at 859 -60.
B. Missing Witness Doctrine
In general, the State may not comment on the defendant' s lack of evidence because the
defendant has no duty to present evidence. State v. Cheatam, 150 Wn.2d 626, 652, 81 P. 3d 830
2003). The missing witness doctrine is an exception: it applies where a party failed to produce a
witness particularly within its control. State v. Blair, 117 Wn.2d 479, 485 -86, 816 P. 2d 718 ( 1991).
When applicable, this doctrine permits both a prosecutor to comment on a defendant' s failure to
produce evidence and a jury to infer that the missing evidence or testimony would have been
unfavorable to the party who failed to produce it. Blair, 117 Wn.2d at 485 -86.
The missing witness doctrine applies in a criminal case when: ( 1) the absent witness is
particularly within the defense' s ability to produce, ( 2) the missing testimony is not merely
cumulative, ( 3) the witness' s absence is not otherwise explained, (4) the witness is not incompetent
or her testimony privileged, and ( 5) the testimony does . not infringe on the defendant' s
constitutional rights. Cheatam, 150 Wn. 2d at 652 -53. The doctrine does not apply where the
missing witness' s testimony, if favorable to the party who would naturally have called the witness,
would necessarily be self - incriminatory. Blair, 117 Wn.2d at 489 -90. The State may only
comment on the defendant' s failure to call a witness where the defendant has unequivocally
implied that the missing witness would have corroborated his theory of the case and it is clear the
defendant could produce the witness. State v. Contreras, 57 Wn. App. 471, 476, 788 P. 2d 1114
1990)..
43762 -7 -II / 45418 -8 -II
C. The Trial Court Misapplied the Missing Witness Doctrine
Over Conner' s objection, the trial court allowed the State to argue that Duckworth would
have provided unfavorable testimony and it gave a missing witness instruction to that effect. The
trial court misapplied the missing witness doctrine.3
Conner never unequivocally implied that Duckworth would have corroborated his theory
of the case or his version of the recorded jail phone calls. The record does not demonstrate that
Duckworth was peculiarly within the defendant' s ability to produce. Despite her romantic
relationship with Conner and hostility towards the State, the record contains no evidence that the
State could not have called her as a witness. The record also does not demonstrate that Duckworth
could provide material testimony. Although she could have testified about what Conner meant
when he stated he was " done with all that" and " changing [ his] ways" in the jail calls with
Duckworth, she could have only testified as to her understanding of Conner' s statements. Supp.
CP at 355, ,360. Duckworth' s absence was adequately explained: she did not want to incriminate
herself. Therefore, relying on all the Cheatam factors, the trial court misapplied the missing
witness doctrine and erred by instructing the jury using the missing witness instruction. 150 Wn.2d
at 652 -53.
3 The parties both argue that the trial court based its ruling in part on a mistaken belief that Conner' s
counsel stated in opening that Duckworth would testify. While the trial court did ask Conner' s
counsel why he said Duckworth was going to testify, implying a mistaken belief that he had done
so, the trial court' s ruling the next day does not indicate that this was a factor in its decision. The
trial court stated:
Conner' s counsel] argued in his opening statement that the jury would hear about
Rachel Duckworth and would hear about the safe that was found in her apartment.
XVI RP at 2415 -16 ( emphasis added). From this statement, it is clear that the trial court did not
actually base its ruling on a mistaken beliefthat Conner' s counsel argued Duckworth would testify.
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D. The Error is Harmless
Although the trial court erred by allowing the missing witness instruction, the error was
harmless. As long as the jury is properly instructed on the State' s burden, an improper jury
instruction may be harmless error. Montgomery, 163 Wn.2d at 600. ' An erroneous instruction
is harmless if from the record in [ the] case, it appears beyond a reasonable doubt that the error
complained of did not contribute to the verdict obtained.' Whether a flawed jury instruction is
harmless error depends on the facts of a particular case." Montgomery, 163 Wn.2d at 600 ( quoting
State v. Carter, 154 Wn.2d 71, 81, 109 P. 3d 823 ( 2005)).
Here, the trial court properly instructed the jury on the State' s burden. The State
emphasized its burden during closing arguments. And the State did not make repeated references
to Duckworth' s absence.
Because other evidence tied Conner to each of the home invasion robberies and burglaries,
4
we hold the instructional error was harmless. It did not contribute to the verdict. Conner' s co-
defendant, Alexander, testified about Conner' s involvement in the Twelfth Street ( I) and ( II)
crimes. Alexander testified Conner wore a bandana and carried a Hi -Point .40 pistol during both
incidents. Another co- defendant, Smith, testified that Conner stored stolen property from both
incidents with Smith. Though the victims did not identify Conner at trial, one of them corroborated
Alexander' s testimony.
4
We summarized only a portion of the evidence that inculpates Conner. Additional evidence of
Conner' s guilt also exists in the record.
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Alexander also testified as to Conner' s involvement in the Shore Drive crime. He related
how Conner participated in using force against Cummings. Smith also testified that Conner told
him about the incident and how it did not go as planned because the victim was home. Although
Cummings did not identify Conner at trial, he corroborated the events.
Smith testified that he participated in the crime at the Weatherstone Apartments at Conner' s
invitation. Alexander related that they targeted this residence because Conner knew the victim,
and that Conner carried the victim' s personal property from the apartment.
Alexander also testified about Conner' s involvement in the Wedgewood Lane crime. He
related that Conner helped plan the crime and that Conner participated by scoping out the
apartment earlier in the day. Conner wore a black hoodie and bandana, and carried the Hi -Point
40 pistol. The victims corroborated this testimony. The record contains overwhelming evidence
of Conner' s guilt, and the erroneous instruction did not contribute to the verdict.
V. COMMENT ON THE EVIDENCE
Conner argues that the trial court improperly commented on the evidence when it sustained
some of the State' s objections during closing arguments. We disagree.
A. Judicial Comments on the Evidence Prohibited
Article 4, section 16 of the Washington Constitution prohibits judges from commenting on
the evidence. State v. Swan, 114 Wn.2d 613, 657, 790 P. 2d 610 ( 1990), cert. denied, 498 U. S.
1046 ( 1991). " A statement by the court constitutes a comment on the evidence if the court's
attitude toward the merits of the case or the court's evaluation relative to the disputed issue is
inferable from the statement." State v. Lane, 125 Wn.2d 825, 838, 889 P. 2d 929 ( 1995). A court' s
conduct violates the constitution only if its attitudes are "` reasonably inferable from the nature or
manner of the court' s statements. "' State v. Elmore, 139 Wn.2d 250, 276, 985 P. 2d 289 ( 1999)
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quoting State v. Carothers, 84 Wn.2d 256, 267, 525 P. 2d 731 ( 1974)). " A court does not comment
on the evidence simply by giving its reasons for a ruling." In re Det. ofPouncy, 144 Wn. App.
609, 622, 184 P. 3d 651 ( 2008), alld, 169 Wn.2d 382 ( 2010).
B. No Comment on the Evidence
Conner argues that there are two instances where the trial court commented on the evidence
when it sustained the State' s objections during Conner' s closing argument. First, Conner argued
to the jury that the police and prosecutor' s office directed Conner' s co- defendants to lie. The State
objected and the trial court sustained the objection. In ruling, the trial court simply stated,
Sustained. Move on, [ Conner' s counsel]." XVII RP at 2591. Following this ruling, Conner
almost immediately made another argument that implied the State manipulated a co- defendant' s
testimony. In ruling on that objection, the trial court stated, " Members of the jury, you will
disregard the last argument of [c] ounsel." XVII RP at 2591. Because the trial court judge did not
convey to the jury her personal opinion regarding the truth or falsity of any evidence introduced at
trial, it did not impermissibly comment on the evidence. See Lane, 125 Wn.2d at 838. The trial
court merely ruled on the objections.
Second, the trial court sustained the State' s objection to Conner' s argument that two of the
co- defendants were experienced liars. In ruling on that objection, the trial court stated, " I have
sustained the objection, and you are instructed to disregard the last remarks of [c] ounsel." XVIII
RP at 2616 -17. Again, the trial court did not convey to the jury its personal opinion regarding
merits of the case or its evaluation of disputed evidence. We hold that the trial court did not
17
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impermissibly comment on the evidence and, therefore, did not violate Conner' s constitutional
rights.5
VI. Firearm Enhancement on Weatherstone Apartment Incident
Conner argues, and the State concedes, that the trial court erred when it imposed a 60 month
firearm enhancement on his burglary in the first degree conviction arising from the Weatherstone
Apartment incident. The jury did not find beyond a reasonable doubt that Conner was armed with
a firearm during the commission of burglary in the first degree of the Weatherstone Apartment;
therefore, we accept the State' s concession and remand to the trial court to strike the firearm
enhancement and to resentence Conner.
VII. STATEMENT OF ADDITIONAL GROUNDS
In his SAG, Conner asserts that insufficient evidence exists to support two convictions for
unlawful possession of a firearm in the second degree and two convictions for possession of a
stolen firearm. He also asserts the prosecutor committed misconduct by relying on coerced and
false testimony. We hold that sufficient evidence exists for the unlawful possession of a firearm
convictions and the possession of a stolen firearm convictions and that the prosecutor did not
commit misconduct.
A. SUBSTANTIAL EVIDENCE
Conner asserts that his convictions for unlawful possession of a firearm in the second
degree ( Hi -Point . 40 pistol), possession of a stolen firearm ( Hi -Point . 40 pistol), unlawful
possession of a firearm in the second degree ( Taurus . 44 revolver), and possession of a stolen
5 To the extent that Conner argues that the trial court' s rulings on the State' s objections amounted
to instructing the jury to disregard Conner' s defense theory, this claim is without merit. The trial
court instructed the jury only to disregard an improper statement by defense counsel during closing
argument, not to disregard the defendant' s theory of the case.
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firearm ( Taurus . 44 revolver) are not supported by substantial evidence. Specifically, he argues
that sufficient evidence does not support the jury' s finding that he possessed the firearms or that
he knew they were stolen. Viewed in the light most favorable to the State, the evidence is sufficient
to convince the jury beyond a reasonable doubt that Conner possessed the Hi Point .40 pistol and
the Taurus . 44 revolver, and that Conner knew both firearms were stolen.
1. Standard of Review
The test for determining the sufficiency of the evidence is whether, after viewing the
evidence in the light most favorable to the State, any rational trier of fact could have found guilt
beyond a reasonable doubt." State v. Salinas, 119 Wn.2d 192, 201, 829 P. 2d 1068 ( 1992). " A
claim of insufficiency admits the truth of the State's evidence and all inferences that reasonably
can be drawn therefrom." Salinas, 119 Wn.2d at 201. Circumstantial evidence and direct evidence
are equally reliable. State v. Delmarter, 94 Wn.2d 634, 638, 618 P. 2d 99 ( 1980). " Credibility
determinations are for the trier of fact and cannot be reviewed on appeal." State v. Camarillo, 115
Wn.2d 60, 71, 794 P. 2d 850 ( 1990).
2. Possession
Conner first asserts that the State failed to prove beyond a reasonable doubt that he
possessed both firearms. Possession can be actual or constructive. State v. Staley, 123 Wn.2d 794,
798, 872 P. 2d 502 ( 1994). Actual possession means the firearms were in Conner' s personal
custody. Staley, 123 Wn.2d at 798. Constructive possession means that Conner had dominion and
control over the firearms. Staley, 123 Wn.2d at 798; State v. Summers, 107 Wn. App. 373, 384,
28 P. 3d 780 ( 2001). Dominion and control over the premises where the item was found creates a
rebuttable inference of dominion and control over the item itself. State v. Cantabrana, 83 Wn.
App. 204, 208, 921 P. 2d 572 ( 1996). The State must show more than mere proximity, but need
19
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not show exclusive control. State v. George, 146 Wn. App. 906, 920, 193 P. 3d 693 ( 2008).
However, knowledge of the presence of contraband, without more, is insufficient to show
dominion and control to establish constructive possession. State v. Hystad, 36 Wn. App. 42, 49,
671 P. 2d 793 ( 1983). The trial court instructed the jury, without objection, that "[ a] ctual
possession occurs when the item is in the actual physical custody of the person charged" and that
c] onstructive possession occurs when ... there is dominion and control over the item." CP at
258.
a. Hi -Point .40 Pistol
To convict Conner of unlawful possession of the Hi -Point . 40 pistol, the State needed to
prove that he possessed it " on or between September 15, 2010 and November 17, 2010." CP at
262. Viewed in the light most favorable to the State, any rational trier of fact could have found
beyond a reasonable doubt that Conner actually possessed the Hi -Point . 40 pistol between
September 15 and November 17. Testimony established that Conner carried the Hi -Point .40 pistol
on his person during the commission of four of the home invasion robberies and burglaries.
Therefore, sufficient evidence exists to uphold this conviction.
b. Taurus . 44 Revolver
To convict Conner of unlawful possession of the Taurus . 44 revolver, the State needed to
prove that Conner possessed it "on or between November 1, 2010 and November 17, 2010." CP
at 264. Viewed in the light most favorable to the State, any rational trier of fact could have found
beyond a reasonable doubt that Conner actually possessed the Taurus . 44 revolver between
November 1 and November 17. The State presented evidence that the Taurus . 44 revolver was
stolen on November 1. Testimony established that Conner actually possessed and handled the
Taurus .44 revolver on numerous occasions, including when Adams initially showed it to him after
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it was stolen and when Conner held it while sitting in the front seat of Adams' s truck. Therefore,
sufficient evidence exists to uphold this conviction.
3. Knowledge that the Firearms were Stolen
Conner next asserts that the State failed to prove beyond a reasonable doubt that he knew
both firearms were stolen. " Knowledge" means that a person " is aware of a fact, facts, or
circumstances or result described by a statute defining an offense; or ... has information which
would lead a reasonable person in the same situation to believe that facts exist which facts are
described by a statute defining an offense." RCW 9A.08. 010( 1)( b).
a. Hi -Point .40 Pistol
Viewing the evidence in the light most favorable to the State, a rational trier of fact could
have found beyond a reasonable doubt that Conner knew the Hi -Point .40 pistol was stolen. The
firearm' s true owner testified that the firearm went missing after Brown and Conner visited his
home. Alexander testified that the Hi -Point .40 pistol was " stolen" and that another co- defendant
gave it to Conner on September 5 as " payment" for broken property. XII RP at 1683, 1685. The
serial number was filed off. Detective Davis testified that in his training and experience, the only
reason to file a serial number off any weapon is to conceal its stolen identity. Conner carried this
firearm during the majority of the home invasion robberies and burglaries. The State produced
sufficient evidence to convince a rational jury beyond a reasonable doubt that Conner had
knowledge the firearm was stolen at the time he possessed it.
b. Taurus .44 Revolver
Viewing the evidence in the light most favorable to the State, a rational trier of fact could
have found beyond a reasonable doubt that Conner knew the Taurus .44 revolver was stolen. The
firearm' s true owner testified that the firearm went missing after his home was burglarized on
21
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November 1. The firearm' s true owner also identified the firearm at trial by its appearance and
serial number. Alexander testified that Conner was present when Adams discussed acquiring the
Taurus . 44 semiautomatic by stealing it in " a lick [ which is] .... [ a] burglary or robbery, some
type of breaking and entering." XII RP at 1685. The State produced sufficient evidence to
convince a rational jury beyond a reasonable doubt that Conner had knowledge the firearm was
stolen at the time he possessed it.
C. PROSECUTORIAL MISCONDUCT
Conner asserts the prosecutor committed misconduct by relying on Smith' s " false and
6
coerced testimony" and Alexander' s false testimony. SAG at 11. We disagree and hold that no
prosecutorial misconduct occurred.
The due process clause of the Fourteenth Amendment to the United States Constitution
imposes on prosecutors a duty not to introduce perjured testimony or use evidence known to be
false to convict a defendant. State v. Finnegan, 6 Wn. App. 612, 616, 495 P. 2d 674 ( 1972). This
duty requires the prosecutor to correct State witnesses who testify falsely. Finnegan, 6 Wn. App.
at 616 ( citing Napue v. Illinois, 360 U. S. 264, 79 S. Ct. 1173, 3 L. Ed. 2d 1217 ( 1959)). To succeed
on his claim that the prosecutor used false evidence to convict him, Conner must show that "( 1)
the testimony ( or evidence) was actually false, ( 2) the prosecutor knew or should have known that
the testimony was actually false, and ( 3) that the false testimony was material." United States v.
Zuno Arce, 339 F. 3d 886, 889 ( 9th Cir. 2003). Conner fails to make the necessary showing for
the first of these elements regarding both Smith' s and Alexander' s testimony.
6
Additionally, Conner argues that the police coerced Smith into making a statement. Any fact
related to Smith' s custodial interrogation is outside of this record on appeal. We do not address
issues relying on facts outside the record on direct appeal. McFarland, 127 Wn.2d at 338 n.5.
22
43762 -7 -II / 45418 -8 - II
The record does not support any of Conner' s assertions that the State relied on false
testimony. Conner offers no evidence to demonstrate the falsity of Smith' s or Alexander' s
testimony other than his own version of events. Conflicting testimony is not evidence of falsity.
See Camarillo, 151 Wn.2d at 71 ( Credibility determinations are for the trier of fact and are not
subject to review.). Because there is no support in the record that the State introduced false
testimony, Conner' s assertion relating to prosecutorial misconduct is without merit.
VI PERSONAL RESTRAINT PETITION
In his PRP, Conner argues ( a) the State' s second amended information is invalid because
the State did not file an amended statement of probable cause, ( b) the jury instructions relieved the
State of its burden to prove all elements of the crimes beyond a• reasonable doubt, ( c) the State
vindictively prosecuted. Conner, and ( d) the trial court erred by imposing an exceptional sentence
without findings, by failing to conduct a same criminal conduct analysis, and by violating his
double jeopardy rights. We vacate Conner' s theft in the third degree conviction on double jeopardy
grounds and remand for resentencing, but hold that the remainder of his claims are without merit.
Because we remand for resentencing, we do not reach Conner' s same criminal conduct claim.
A. Standard of Review
We consider the arguments raised in a PRP under one of two different standards, depending
on whether the argument is based on constitutional or nonconstitutional grounds. In re Pers.
Restraint of Davis, 152 Wn.2d 647, 671 - 72, 101 P. 3d 1 ( 2004). A petitioner raising constitutional
error must show that the error caused actual and substantial prejudice. Davis, 152 Wn.2d at 672.
In contrast, a petitioner raising nonconstitutional error must show a fundamental defect resulting
in a complete miscarriage of justice. In re Pers. Restraint ofElmore, 162 Wn.2d 236, 251, 172
P. 3d 335 ( 2007). Additionally, Conner must support his claims of error with a statement of the
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facts on which his claim of unlawful restraint is based and the evidence available to support his
factual allegations. RAP 16. 7( a)( 2); In re Pers. Restraint of Williams, 111 Wn.2d 353, 365, 759
P. 2d 436 ( 1988); see also In re Pers. Restraint of Cook, 114 Wn.2d 802, 813 -14, 792 P. 2d 506
1990). Conner must present evidence showing his factual allegations are based on more than mere
speculation, conjecture, or inadmissible hearsay. In re Pers. Restraint of Rice, 118 Wn.2d 876,
886, 828 P. 2d 1086, cert. denied, 506 U. S. 958 ( 1992). Bald assertions and conclusory allegations
are not sufficient. Rice, 118 Wn.2d at 886.
B. Probable Cause
Conner argues that the State' s second amended information is invalid because the State did
not file an amended statement of probable cause. Conner fails to cite any authority for this
proposition, and we could find none. Thus, Conner cannot demonstrate a fundamental defect
resulting in a complete miscarriage ofjustice.
C. Jury Instructions
Conner argues that the " to convict" instructions relieved the State of its burden to prove all
elements of the crimes beyond a reasonable doubt because some instructions lacked the specific
names of co- conspirators, names of victims, and addresses. We disagree.
We review de novo allegations of constitutional violations or instructional errors. State v.
Lynch, 178 Wn.2d 487, 491, 309 P. 3d 482 ( 2013); State v. Brown, 132 Wn.2d 529, 605, 940 P. 2d
546 ( 1997). Jury instructions suffice where, when taken as a whole " they correctly state applicable
law, are not misleading, and permit counsel to argue their theory of the case." Brown, 132 Wn.2d
at 618.
Conner first .argues that instruction 10, the " to convict" instruction for conspiracy to
commit burglary, is defective because it does not name co- conspirators. We disagree. A
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43762 -7 -II / 45418 -8 -I1
conspiracy instruction may not be more far -reaching than the charge in the information. State v.
Brown, 45 Wn. App. 571, 575 -76, 726 P. 2d 60 ( 1986). The naming of co- conspirators is not an
element of the crime. See RCW 9A.28. 040. Therefore, the instruction need not name specific co-
conspirators. The instruction included all of the elements.
Conner next argues that several of the instructions for burglary and theft are deficient
because they do not name the victims or contain addresses. We disagree. The names of victims
and addresses are not essential elements of the crimes charged. Therefore, we hold that these
claims are without merit.
D. Prosecutorial Vindictiveness
Conner argues that the prosecutor acted vindictively and retaliated against Conner by
adding charges in the second amended information. The crux of Conner' s argument is that the
prosecutor deprived of him of his right to a fair trial because adding additional criminal counts and
sentencing enhancements amounted to prosecutorial vindictiveness. We disagree.
We will reverse a conviction due to prosecutorial misconduct only if the defendant
establishes that the conduct was both improper and prejudicial. State v. Monday, 171 Wn.2d 667,
675, 257 P. 3d 551 ( 2011). " Constitutional due process principles prohibit prosecutorial
vindictiveness." State v. Korum, 157 Wn.2d 614, 627, 141 P. 3d 13 ( 2006). "` [ A] prosecutorial
action is vindictive only if designed to penalize a defendant for invoking legally protected rights.'
Korum, 157 Wn.2d at 614 ( quoting United States v. Meyer, 810 F.2d 1242, 1245 ( D.C. Cir. 1987).
Actual vindictiveness must be shown by the defendant through objective evidence that a prosecutor
acted in order to punish him for standing on his legal rights. Meyer, 810 F. 2d at 1245. A
presumption of vindictiveness arises when a defendant can prove that ' all of the circumstances,
when taken together, support a realistic likelihood of vindictiveness. ' Korum, 157 Wn.2d at 627
25
43762 -7 -I1 / 45418 -8 - II
quoting Meyer, 810 F. 2d at 1245). The mere filing of additional charges after a defendant refuses
a guilty plea cannot, without more, support a finding of vindictiveness. Korum, 157 Wn.2d at 629,
631.
Here, the State' s filing of the amended information does not support Conner' s assertion of
vindictiveness. The prosecutor has discretion to determine the number and severity of charges to
bring against a defendant. State v. Rice, 174 Wn.2d 884, 901, 279 P. 3d 849 ( 2012). Conner has
failed to show the State acted vindictively by filing additional charges. Therefore, we hold that
the prosecutor did not act vindictively or retaliate against Conner.
E. Sentencing
1. Exceptional Sentence
Conner argues that the trial court imposed an exceptional sentence without entering written
findings in support of that exceptional sentence. However, the trial court did not impose an
exceptional sentence. Conner' s sentences were within the standard range, and the trial court ran
the underlying offense sentences concurrent with each other. Because the trial court did not impose
an exceptional sentence, no findings were required and this claim is without merit.
2. Double Jeopardy
Conner argues that the trial court violated his right to be free from double jeopardy under
the United States Constitution and the Washington Constitution. The State correctly concedes that
the robbery and theft from Cummings, during the Shore Drive incident, were the same in law and
fact. We accept the State' s concession, reverse Conner' s conviction of theft in the third degree,
and remand for resentencing. We disagree with Conner regarding to all other charges.
7 Conner also argues that the trial court erred by not conducting a same criminal conduct analysis.
Because we remand for resentencing, we do not address this issue.
26
43762 -7 -II / 45418 -8 -II
Double jeopardy violations are questions of law we review de novo. State v. Womac, 160
Wn.2d 643, 649, 160 P. 3d 40 ( 2007). The federal and state constitutions prohibit being punished
twice for the same crime. U. S. CONST. amend. V; WASH. CONST. art. I, § 9; State v. Freeman, 153
Wn.2d 765, 770 -71, 108 P. 3d 753 ( 2005). Multiple convictions whose sentences are served
concurrently may still violate the rule against double jeopardy. State v. Turner, 169 Wn.2d 448,
454 -55, 238 P. 3d 461 ( 2010). Absent clear legislative intent to the contrary, two convictions
constitute double jeopardy when the evidence required to support a conviction for one charge is
also sufficient to support a conviction for the other charge, even if the more serious charge has
additional elements. See Freeman, 153 Wn.2d at 776 -77. Thus, two convictions constitute the
same offense if they are the same in law and in fact. State v. Calle, 125 Wn.2d 769, 777, 888 P. 2d
155 ( 1995). If each conviction includes elements not included in the other, or requires proof of a
fact that the other does not, the offenses are different. Calle, 125 Wn.2d at 777.
Conner first argues that his burglary convictions should be reversed because they were the
same in law and in fact as the thefts and robberies. We disagree. A trial court does not violate
double jeopardy protections if it enters convictions for multiple crimes that the legislature
expressly intends to punish separately. State v. Elmore, 154 Wn. App. 885, 900, 228 P. 3d 760
2010). The legislature enacted the burglary antimerger statute that expressly allows for a
defendant to be convicted and punished separately for burglary and all crimes committed during
that burglary. RCW 9A.52.050; Elmore, 154 Wn. App. at 900. The fact that the State can establish
multiple offenses with the same conduct does not alone violate double jeopardy. State v.
Mandanas, 163 Wn. App. 712, 720 n. 3, 262 P. 3d 522 ( 2011). Therefore, the trial court may punish
burglary separately from other crimes because of the plain language of RCW 9A.52. 050.
27
43762 -7 -II / 45418 -8 -II
Accordingly, the trial court did not violate Conner' s right to be free from double jeopardy when it
treated the burglaries as separate criminal conduct for sentencing purposes.
Conner next argues that we should vacate his separate convictions of three counts of theft
in the second degree and one count of theft in the third degree because they were the same in law
and in fact as his convictions of eight counts of robbery in the first degree. We vacate only
Conner' s conviction of theft in the third degree because this theft was the functional equivalent of
a lesser included of robbery in the first degree of Cummings.
A person is guilty of robbery in the first degree if
i] n the commission of a robbery or of immediate flight therefrom, he . [ i] s armed
with a deadly weapon; or [ d] isplays what appears to be a firearm or other deadly
weapon; or [ i] nflicts bodily injury.
RCW 9A. 56. 200. RCW 9A.56. 190 defines " robbery," in pertinent part, as follows:
A person commits robbery when he or she unlawfully takes personal property from
the person of another or in his or her presence against his or her will by the use or
threatened use of immediate force, violence, or fear of injury to that person or his
or her property or the person or property of anyone. Such force or fear must be
used to obtain or retain possession of the property, or to prevent or overcome
resistance to the taking; in either of which cases the degree of force is immaterial.
A person is guilty of theft in the second degree if he commits theft of property which
exceeds $ 750 in value but does not exceed $ 5, 000 in value, or an access device. RCW
9A.56. 040( 1)( a) and ( d). A person is guilty of theft in the third degree if he commits theft of
property that does not exceed $ 750 in value. RCW 9A.56. 050. RCW 9A. 56. 020( 1)( a) defines
theft," in pertinent part, as follows:
To 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.
A person is guilty of theft of a firearm if he commits a theft of any firearm, regardless of the value
of the firearm. RCW 9A.56. 300.
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43762 -7 -II / 45418 -8 -II
Conner' s convictions arising from the Twelfth Street, (I) incident were robbery in the first
degree and theft in the second degree. Conner' s convictions do not constitute double jeopardy.
Although both crimes require the taking of another person' s property, the victims in this incident
were different. Robert Dato and Aaron Dato were both victims of the robberies. Harveson, who
was not present during the home invasion, was not a robbery victim. However, because Conner
took Harveson' s property, he was a theft victim. The crimes were different in fact because proof
of one offense would not necessarily prove the other. State v. Lust, 174 Wn. App. 887, 891, 300
P. 3d 846 ( 2013); State v. Smith, 124 Wn. App. 417, 432, 102 P. 3d 158 ( 2004) affd, 159 W.2d 778
2007) ( for purposes of double jeopardy analysis, the same criminal conduct cannot occur where
there are multiple victims). We hold that these convictions do not constitute double jeopardy.
Conner' s convictions from the Twelfth Street ( II) incident, robbery in the first degree and
theft in the second degree do not constitute double jeopardy because, again, the victims were
different. Robert Dato, Aaron Dato, and Turner, were robbery victims. Harveson, a victim of theft
but not robbery, was not present during the home invasion. The crimes were different in fact
because proof of one offense would not necessarily prove the other. We hold that these convictions
do not constitute double jeopardy.
The State concedes that Conner' s convictions from the Shore Drive incident, robbery in
the first degree and theft in the third degree, constituted a violation of double jeopardy. Even
though the statutory elements differ, under the facts of this incident, both crimes involved the
taking of property from the same victim at the same time. We accept the State' s concession and
reverse the theft in the third degree conviction.
Conner' s convictions from the Wedgewood Lane incident, robbery in the first degree, theft
of a firearm, and theft in the second degree by taking a debit card, do not constitute a violation of
29
43762 -7 -II / 45418 -8 -II
double jeopardy. Different people were victims. Aaron Tucheck and Keefe Jackson were robbery
victims. Conner took Ann Tucheck' s property, the firearm and debit card, but not in her presence,
and not with force or the threatened use of force. Therefore, she was a theft victim and not a
robbery victim. Additionally, theft of a firearm and theft of a debit card are neither factually nor
legally identical because proof of one offense would not necessarily prove the other. We hold that
these convictions do not constitute double jeopardy.
We vacate Conner' s theft in the third degree conviction and affirm his remaining
convictions. We remand for resentencing on the remaining convictions and twelve firearm
enhancements.
A majority of the panel having determined that this opinion will not be printed in the
Washington Appellate Reports, but will be filed for public record in accordance with RCW 2. 06. 040,
it is so ordered.
We concur:
CJ
rgen, C. J.
30