Filed
Washington State
Court of Appeals
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
Division Two
DIVISION II October 6, 2015
STATE OF WASHINGTON, No. 45772-5-II
Respondent, UNPUBLISHED OPINION
v.
MICHAEL ANTHONY BRUCE,
Appellant.
BJORGEN, J. — The State charged Michael Anthony Bruce with first degree burglary,
third degree theft, residential burglary, and several violations of a domestic violence court order,
based on conduct against his former intimate partner Heather Reid. A jury returned guilty
verdicts on all counts. Bruce appeals, arguing that the trial court erred by (1) joining certain of
the charges for trial and denying his subsequent motion to sever those charges and (2) entering
convictions for both first degree burglary and residential burglary based on a single unlawful
entry into Reid’ s apartment, thus putting Bruce in double jeopardy. Accepting the State’ s
concession, we reverse the residential burglary conviction on double jeopardy grounds, but
otherwise affirm.
FACTS
Bruce and Reid had a dating relationship for two or three years during which Bruce lived
at Reid’ s ground-level apartment in Vancouver, Washington for about six months. Reid broke
up with Bruce in October 2012, and Bruce moved out of Reid’ s apartment. Reid broke off the
relationship completely in January 2013. Bruce refused to accept her decision to terminate the
relationship.
No. 45772-5-II
On January 17, 2013, the District Court of Clark County entered an order prohibiting
Bruce from contacting Reid or knowingly coming within 250 feet of her residence, and the same
court entered a similar order on April 5. Both orders bore Bruce’ s signature and by their terms
remained in effect for two years from the date of entry with the court.1
1. The Events of June 28 to 30, 2013
On the night of June 28, Bruce showed up at Reid’ s apartment after her children had gone
to bed. Reid told him to leave, but let him in after he threatened to “ make a scene.” 1 Verbatim
Report of Proceedings (VRP) at 68. Bruce asked if Reid’ s children would be at her apartment
the following night, and Reid said they would not. Reid and Bruce argued, but Bruce stayed at
Reid’ s apartment until the morning.
The following night, June 29, Reid awoke to Bruce touching her arm. Bruce told Reid to
be quiet and not get mad. Bruce grabbed Reid’ s wrists, held her down, and covered her nose
and mouth with his hand to stop her from yelling. Reid could not breathe, so she stopped
yelling, hoping that Bruce would remove his hand from her mouth.
Bruce released her, and Reid jumped out of bed, again yelling for him to leave. At some
point, Reid turned on the bedroom light and could clearly see Bruce. Bruce then cornered Reid
in the bathroom adjoining her bedroom, telling her to stop yelling and to be quiet. When Reid
did not stop yelling, Bruce punched her in the jaw. Reid began crying, and Bruce finally left the
apartment.
1
The trial court admitted certified copies of the orders at trial, but they do not appear in the
record. These facts come from the trial testimony of the district court office manager, who
authenticated the certified copies. Bruce did not dispute at trial that the orders existed or that he
knew of them.
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In the morning, Reid could not find her cell phone, but did find a vase of flowers in her
bathroom that she did not recognize. She later found flowers in various other places around her
apartment, including in her daughter’ s bedroom.
Reid used her mother’ s cell phone to send text messages to her own phone number,
demanding return of the phone and threatening to call the police if not returned. She did not
receive a reply, so she called the police. Clark County Sheriff’ s Deputy Doug Paulson met Reid
at her apartment and interviewed her and her mother. Paulson noticed “ some light bruising” on
Reid’ s right wrist. 1 VRP at 36.
Reid’ s missing cell phone had a Facebook application that allowed the user to access
Reid’ s account without entering a password. Reid discovered that someone had sent messages
from her Facebook account, time stamped after her cell phone went missing, to four men on her
contact list. The content of the messages included, for example, “ I told you to stop talking to
Heather,” “ I can’ t believe you would do this,” “ I thought you were the [ sic] homie,” 1 VRP at
48, “ How could you do this?” 1 VRP at 49, and demands that the recipients leave Reid alone.
Similarly, Reid’ s cousin Shayleen Migneault received a text message from Reid’ s cell
phone number the next day, July 1, stating, “ I’m not okay. I need mental help. I need help.”
1 VRP at 111. The following day, July 2, Migneault received an angry, threatening call that her
phone identified as originating from Reid’ s cell phone number, but recognized Bruce as the
caller by his voice, with which she was familiar.
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2. The Events of September 5, 2013
In the early afternoon of September 5, a witness observed Bruce knocking on the door of
Reid’ s residence. Linda McCluskey, who was supervising one of Reid’ s children, heard the
knocking but did not answer. Bruce kept knocking and started ringing the doorbell over and
over until McCluskey answered the door. She told Bruce that he was not supposed to be there
and that she was going to call 911. Bruce swore at her and left. McCluskey called the police and
gave a statement.
Bruce returned to Reid’ s residence later that evening, after Reid had arrived home. He
knocked on the window and asked to come in. Reid told him to leave. Bruce started continually
ringing the doorbell and demanding to come in, at which point Reid called 911. When officers
arrived they arrested Bruce outside Reid’ s apartment building.
When Clark County Sheriff’ s Deputy Daniel Fronk, one of the responding officers,
questioned Bruce about his activities on June 29 and 30. Bruce denied visiting Reid’ s apartment
on those occasions and claimed to have an alibi. Bruce told Fronk that he had been at Cathedral
Park, but did not identify anyone who could corroborate his alibi.
3. September to October Postcards
A few days after the September 5 incident, Reid received a handwritten postcard from
Bruce addressed to Bruce’ s daughter at Reid’ s mailing address. Reid received another six such
postcards over the next month. On October 23, Reid called 911 to report the postcards and
eventually turned them over to police.
Clark County Sheriff’ s Deputy Robert Anderson responded to the call and questioned
Bruce, who admitted to sending the postcards, but told Anderson that he had sent them to his
daughter. When Anderson pointed out that Bruce had sent the letters to Reid’ s address, Bruce
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responded, “ I wasn’ t trying to violate no order or anything.” 2 VRP at 168-69. Bruce also
claimed to have mistakenly addressed the postcards to Reid and claimed that his daughter lived
at Reid’ s apartment when he sent the postcards.
PROCEDURAL HISTORY
In September 2013, the State filed charges against Bruce for first degree burglary, felony
domestic violence court order violation, and third degree theft based on the June 29 and 30, 2013
incident at Reid’ s apartment. On November 21 the State filed a motion to consolidate these
charges with Bruce’ s four counts of misdemeanor violations of a domestic violence court order,
based on his September 2013 visit to Reid’ s residence and the subsequent postcards. After
considering Bruce's memorandum in opposition, the trial court granted the motion to consolidate
the charges. The State amended the information accordingly and added a domestic violence
residential burglary charge.
Bruce pled not guilty and proceeded to a jury trial. The State called Reid, Kraft,
Migneault, McCluskey, and various law enforcement officers, who testified to the facts as set
forth above. Reid testified also that Bruce’ s daughter had never lived at Reid’ s residence.
A number of inconsistencies in Reid’ s statements also emerged at trial. Clark County
Sheriff’ s Deputy Doug Paulson, one of the investigating officers, testified that Reid initially told
him that Bruce was left-handed and had hit her on the right side of her face. At trial, Reid
testified that she did not remember whether Bruce was right or left-handed. Reid also admitted
that she initially told police and the defense investigator that she had not seen Bruce for some
time prior to the night of July 29. Reid explained that she lied because she was embarrassed,
thought she “ would get in trouble” for violating the no contact orders, and “ wanted to say
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No. 45772-5-II
whatever it took to make sure that . . . an incidence [sic] like this d[id] not happen to [her]
children ever again.” 1 VRP at 94.
Following Reid’ s testimony, Bruce moved to sever the four counts arising out of the
September 2013 events, pointing out that Reid had testified that Bruce's pattern of behavior on
June 30 was the same as his behavior on September 5 and arguing that severance was justified by
the risk the jury would decide guilt concerning the latter incident based on evidence of the
former. The trial court denied the motion, stating that it was familiar with the issue from the
previous hearing and argument and didn't see anything new presented.
After the State rested, Douglas and Michelle Schmer, friends of Bruce’ s with whom he
lived from January to mid-August 2013, testified that they remembered the weekend of June 28
to 30 because they were preparing for their twins’ birthday party. They admitted, however, that
they did not become aware of the significance of the weekend until the following September.
The Schmers testified that Bruce was at their house on June 28 until dark and that they all
watched movies together before going to bed.
Douglas Schmer testified that on June 29, he and Bruce attended a friend’ s party at
Cathedral Park, returned to the Schmers’ home together, then went to bed sometime after 11:00
p.m. or 12:00 a.m. that night. Reid’ s mother, Laura Sweider, testified that she attended the party
and saw Bruce and Douglas there. The Schmers testified that Bruce could not have left their
house without setting off the security alarm, which did not go off.
Bruce testified on his own behalf, averring that he did not leave the Schmers’ house or go
to Reid’ s apartment on June 28. Bruce denied going to Reid’ s apartment on the night of June 29,
as well, testifying consistently with Douglas’ s account.
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Bruce also called defense investigator Steven Teply. Teply testified that Reid made
various statements to him that were inconsistent with her trial testimony and statements to police.
For example, Reid told Teply that her relationship with Bruce ended much later than she
adverted to in her trial testimony: Reid told the investigator that she had broken off the
relationship a week before the events of June 29 and 30, 2013, and later told him it ended two
weeks or a month before those events.2 Teply also testified that, when he interviewed Reid, she
told him that she believed Bruce was right-handed.3
With respect to the multiple charges, the court instructed the jury as follows: “A separate
crime is charged in each count. You must decide each count separately. Your verdict on one
count should not control your verdict on any other count.” Clerk’ s Papers ( CP) at 134. The jury
returned guilty verdicts on all counts. The court entered convictions on all charges, including
third degree theft, residential burglary, and first degree burglary, and imposed the maximum
standard range sentence. Bruce appeals.
ANALYSIS
We first address Bruce’ s claim that consolidating the charges arising out of the June
incident with those arising out of the September incident and the subsequent postcards deprived
him of a fair trial. We then consider whether entry of convictions for both first degree burglary
and residential burglary placed him in double jeopardy.
2
Reid testified at trial that she broke off her relationship with Bruce in January 2013.
3
Paulson testified that Reid initially told him that Bruce was left-handed and had hit her on the
right side of her face.
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No. 45772-5-II
I. CONSOLIDATION OF THE CHARGES
Bruce argues that the trial court erred by (1) granting the State’ s motion to join the four
charges arising from the June incident with the remaining charges and (2) denying his
subsequent severance motion. The State maintains that the trial court did not abuse its
discretion. We agree with the State.
Washington’ s liberal joinder rule allows charges to be consolidated in a charging
document if they are “ based on the same conduct or on a series of acts connected together or
constituting parts of a single scheme or plan.” CrR 4.3(a)( 2); State v. Thompson, 88 Wn.2d 518,
525, 564 P.2d 315 (1977), overruled on other grounds by State v. Thornton, 119 Wn.2d 578, 835
P.2d 216 (1992). A statute similarly provides in relevant part that, “[ w]hen there are several
charges against any person . . . for two or more acts or transactions connected together, or for
two or more acts or transactions of the same class of crimes or offenses, which may be properly
joined, . . . the court may order such indictments or informations to be consolidated.” RCW
10.37.060. We construe the joinder rule expansively to promote the public policy of conserving
judicial and prosecutorial resources. State v. Bryant, 89 Wn. App. 857, 864, 950 P.2d 1004
1998).
We review a trial court’ s denial of a motion to sever for a manifest abuse of discretion.
Bryant, 89 Wn. App. at 864. The trial court abuses its discretion if its decision is manifestly
unreasonable or based upon untenable grounds or reasons. State v. Blackwell, 120 Wn.2d 822,
830, 845 P.2d 1017 (1993). Untenable grounds or reasons exist where the trial court relied on
facts unsupported in the record, applied the wrong legal standard, or adopted a view that “‘ no
reasonable person would take.’” State v. Rohrich, 149 Wn.2d 647, 654, 71 P.3d 638 (2003)
quoting State v. Lewis, 115 Wn.2d 294, 298-99, 797 P.2d 1141 (1990)).
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A. Joinder
We have held that connections between charged offenses much less substantial than those
presented here sufficient to justify joinder. E.g., State v. Gatalski, 40 Wn. App. 601, 606, 699
P.2d 804 (1985), overruled on other grounds as stated in State v. Harris, 121 Wn.2d 317, 849
P.2d 1216 (1993); State v. Weddel, 29 Wn. App. 461, 465, 629 P.2d 912 (1981). Notably, in
Gatalski, where the State charged the defendant with attempted rape and attempted kidnapping
based on incidents five months apart and involving different victims, we held joinder proper
because both involved use of force against female victims, sexual connotations, and the victims
allegedly made voluntary romantic overtures toward the defendant. Gatalski, 40 Wn. App. at
603-06.
All the charges here stemmed from conduct involving the same victim and, as shown by
the facts recited above, were animated by the same motive: that of attempting to reestablish
contact after a failed relationship. Thus, under CrR 4.3(a)( 2) and implementing case law, noted
above, they were sufficiently connected to warrant joinder. Consequently, even though the trial
court's order on consolidation did not express its reasoning, it met the governing standards and
cannot be deemed a manifest abuse of discretion.
B. Severance
CrR 4.4 gives a trial court discretion to sever counts joined or consolidated under CrR 4.3
if it “determines that severance will promote a fair determination of the defendant’ s guilt or
innocence of each offense.” CrR 4.4(b); State v. Bythrow, 114 Wn.2d 713, 717, 790 P.2d 154
1990). A defendant seeking severance of charges must demonstrate that a joint trial would be
so manifestly prejudicial as to outweigh the concern for judicial economy.” Bythrow, 114
Wn.2d at 718. Circumstances posing a risk of prejudice sufficient to merit severance include
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No. 45772-5-II
those where (1) the defendant “ may become embarrassed or confounded in presenting separate
defenses,” or the jury (2) may “ cumulate the evidence of the various crimes charged and find
guilt when, if considered separately, it would not so find,” or (3) infer a criminal disposition
from evidence presented on some charges, then rely on that inference to find the defendant guilty
of others. Bythrow, 114 Wn.2d at 718 (internal quotation marks omitted).
Our Supreme Court has identified four considerations in determining whether charges
should be severed to avoid prejudice to a defendant: “‘( 1) the strength of the State’ s evidence on
each count; (2) the clarity of defenses as to each count; (3) court instructions to the jury to
consider each count separately; and (4) the admissibility of evidence of the other charges even if
not joined for trial.’” State v. Sutherby, 165 Wn.2d 870, 884-85, 204 P.3d 916 (2009) (quoting
State v. Russell, 125 Wn.2d 24, 63, 882 P.2d 747 (1994)). We address each factor in turn in
determining whether the trial court abused its discretion in denying Bruce's motion to sever.
1. Relative Strength of the State’ s Evidence on Different Counts
Where the State presents “ strong [ evidence] on each count, there is no necessity for the
jury to base its finding of guilt on any one count on the strength of the evidence of another.”
Bythrow, 114 Wn.2d at 721-22. But a disparity in the strength of the evidence on various
charges favors severance if “a jury is likely to be influenced in its determination of guilt or
innocence in the weak cases by evidence in the strong case.” State v. Hernandez, 58 Wn. App.
793, 801, 794 P.2d 1327 (1990).
In State v. Kalakosky, 121 Wn.2d 525, 538-39, 852 P.2d 1064 (1993), for example, our
Supreme Court upheld a trial court’ s refusal to sever five rape charges, each involving a different
victim, in part because strong physical evidence corroborated each victim’ s account. In
Hernandez, on the other hand, the State presented only uncorroborated testimony from a single
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No. 45772-5-II
eyewitness on two of three robbery counts, while three eyewitnesses independently identified
Hernandez with a high degree of confidence as the perpetrator of the crime charged in the
remaining count. 58 Wn. App. at 800-01. We reversed two of the three robbery convictions
because the “ jury [was] likely to be influenced in its determination of guilt or innocence in the
weak cases by evidence in the strong case.” Hernandez, 58 Wn. App. at 801.
Here, Bruce admitted to the jury that he went to Reid’ s apartment twice on September 5,
2013, and subsequently sent her the postcards. Thus, the evidence that he committed the crimes
charged in the counts relating to those incidents could hardly be stronger.
The evidence with respect to the charges arising from the June 30 incident is weaker.
The State’ s case relied primarily on the testimony of Reid, the only eyewitness to that incident.
As Bruce points out, inconsistencies between Reid’ s trial testimony and her prior statements cast
doubt on her credibility as a witness. Reid admitted she had lied to police because she would
say whatever it took to make sure that . . . an incidence [sic] like this d[id] not happen to [her]
children ever again.” 1 VRP at 94.
Some physical evidence tended to corroborate Reid’ s version, such as the bruises visible
on her arm and the flowers around her apartment, although it did not specifically point to Bruce
as the perpetrator. Migneault’ s testimony, that she received a call from Bruce of which her caller
identification service identified as originating from Reid’ s missing cell phone, more directly
implicated Bruce. On the other hand, two witnesses corroborated Bruce’ s alibi for the night in
question.
Although the State presented substantial evidence as to the charges stemming from the
June incident, it had a much stronger case with respect to the charges based on the September
incident and the postcards. Thus, a joint trial posed some risk that the jury would find Bruce
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No. 45772-5-II
guilty of the former charges based on the evidence presented on the latter. This factor weighs in
favor of severance.
2. Clarity of Defenses
The second factor concerns the possibility that failure to sever charges will force
defendants to present antagonistic defenses. The defendant bears the burden of showing
specific prejudice” from any possible antagonistic defenses. State v. Grisby, 97 Wn.2d 493,
507, 647 P.2d 6 (1982).
Bruce presented an alibi defense for the charges arising from the June 30 events, but
admitted to the remaining charges.4 Bruce argues that the presentation of his admission to some
charges together with his denial and alibi defense to the others likely confused the jury.
In Russell, the defendant denied committing all the charged crimes and argued on appeal
that the trial court should have severed the counts. 125 Wn.2d at 64-65. In holding that the
clarity-of-defenses factor weighed against severance, our Supreme Court noted that “[ t]he
likelihood that joinder will cause a jury to be confused as to the accused’ s defenses is very small
where the defense is identical on each charge” and quoted with approval the trial court’ s
distinction between Russell’ s case and one where “ there will be an admission of one [ charge
and] denial of another.” Russell, 125 Wn.2d at 64-65.
Here, however, we see little likelihood of jury confusion from these clearly differentiated
defenses. Further, Bruce’ s admission as to one set of charges and denial as to the other do not
qualify as irreconcilable so as to make severance mandatory: accepting Bruce’ s concession as to
one set of charges does not of logical necessity require the jury to reject his alibi defense to the
4
At the hearing on the State’ s joinder motion, Bruce informed the court that he did not anticipate
calling any witnesses in defense against the charges arising from the September incident and the
subsequent postcards.
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No. 45772-5-II
others. See State v. Johnson, 147 Wn. App. 276, 285, 194 P.3d 1009 (2008) (“ For defenses to be
irreconcilable, they must be ‘ mutually exclusive to the extent that one [defense] must be believed
if the other [defense] is disbelieved.’”) ( quoting State v. McKinzy, 72 Wn. App. 85, 90, 863 P.2d
594 (1993)). On the other hand, where a defendant admits to certain charges while denying
others, the jury may improperly rely on the admission to find the denial incredible.
The clearly differentiated and reconcilable nature of these defenses weighs against
severance, while the risk that the jury would rely on Bruce’ s admission to the latter charges to
reject his alibi defense to the June charges weighs in favor of severance. This criterion does not
clearly weigh in either direction.
3. Instruction To Decide Each Count Separately
The third factor concerns the trial court’ s instructions. As discussed, the trial court gave
the standard instruction that the jurors “ must decide each count separately” and that their “ verdict
on one count should not control [their] verdict on any other count.” CP at 134. We presume that
jurors follow such instructions. State v. Swan, 114 Wn.2d 613, 661-62, 790 P.2d 610 (1990).
Given this presumption, this factor weighs against severance.
4. Admissibility of Evidence on Different Charges in Separate Trials
The final factor requires us to consider whether the evidence on particular charges would
be admissible in a separate trial on the other charges. Where the State could introduce the
evidence relating to each charge even if tried separately, the defendant incurs no additional risk
of unfair prejudice in a joint trial. See State v. Smith, 74 Wn.2d 744, 756, 446 P.2d 571 (1968),
judgment vacated in part by Smith v. Washington, 408 U.S. 934 (1972). The State argues that
the trial court could have properly admitted evidence concerning the September/October charges
in a separate trial on the June charges because “ Bruce’ s frightening behavior on September 5th
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No. 45772-5-II
showed a common scheme on his part of showing up at [ Reid’ s] apartment unannounced and
uninvited and behaving threateningly, if not violently, while seeking entry or after gaining
entry.” Br. of Resp’ t at 17.
ER 402 provides that “[ e] vidence which is not relevant is not admissible.” 5 ER 403
provides that the trial court may exclude even relevant evidence “ if its probative value is
substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading
the jury.” Finally, ER 404(b) forbids the admission of propensity evidence; that is, “[ e] vidence
of other crimes, wrongs, or acts . . . to prove the character of a person” for the purpose of
showing that the person acted in conformity with that character on some other occasion.
ER 404(b) also states that evidence “ may . . . be admissible for other purposes, such as
proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of
mistake or accident.” ER 404(b). Our Supreme Court has held evidence of other acts admissible
under the rule if it “serves a legitimate purpose, is relevant to prove an element of the crime
charged, and, on balance, the probative value of the evidence outweighs its prejudicial effect.”
State v. DeVries, 149 Wn.2d 842, 848-49, 72 P.3d 748 (2003). The court has also specified,
however, that “[ i]n cases where admissibility is a close call, ‘the scale should be tipped in favor
of the defendant and exclusion of the evidence.’” Sutherby, 165 Wn.2d at 886-87 (quoting State
v. Smith, 106 Wn.2d 772, 776, 725 P.2d 951 (1986)).
Trial courts may admit evidence under ER 404(b) of a defendant’ s other acts “ to show
the existence of a common scheme or plan” in two circumstances: ( 1) “‘ where several crimes
constitute constituent parts of a plan in which each crime is but a piece of the larger plan’” and
5
ER 401 defines relevant evidence as “ evidence having any tendency to make the existence of
any fact that is of consequence to the determination of the action more . . . or less probable than
it would be without the evidence.”
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2) where “‘ an individual devises a plan and uses it repeatedly to perpetrate separate but very
similar crimes.’” State v. Gresham, 173 Wn.2d 405, 421-22, 269 P.3d 207, 214 (2012) (quoting
State v. Lough, 125 Wn.2d 847, 854-55, 889 P.2d 487 (1995)). The State’ s argument appears to
rely on the latter type of circumstance, focusing on the similarities between the June and
September incidents.
We rejected a similar argument in State v. Harris, 36 Wn. App. 746, 747-48, 751, 677
P.2d 202 (1984), where the defendants faced charges stemming from two very similar rapes in
the same trial. There, the State argued that the rapes were parts of a common scheme or plan
because “ both victims voluntarily entered vehicles with the defendants and in both instances the
defendants drove the victims against their will to a location where the rapes occurred.” Harris,
36 Wn. App. at 751. The Harris court noted that “ the State has fallen into the common error of
equating acts and circumstances which are merely similar in nature with the more narrow
common scheme or plan.” Harris, 36 Wn. App. at 751.
Our Supreme Court subsequently held that “ admission of evidence of a common scheme
or plan requires substantial similarity between the [ other] acts and the charged crime.” State v.
DeVincentis, 150 Wn.2d 11, 21, 74 P.3d 119 (2003). Other than the fact that it involved the
same victim, Bruce’ s conduct giving rise to the September/October charges, demanding that she
let him in, and sending postcards from jail, has little in common with the June incident, where he
entered Reid’ s home at night while she slept, brought flowers, assaulted her, and took her phone.
The incidents are not sufficiently similar to qualify as a common scheme or plan where an
individual devises a plan and uses it repeatedly to perpetuate separate but very similar crimes.
Gresham, 173 Wn.2d at 422.
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The conduct underlying the charges, however, does qualify as a common scheme or plan
where several crimes constitute constituent parts of a plan in which each crime is but a piece of
the larger plan, the other set of circumstances described in Gresham, 173 Wn.2d at 422. That is,
the evidence indicates that all of Bruce’ s efforts to contact Reid served his overarching goal of
convincing or compelling her to resume their intimate relationship. Further, Bruce denied
entering Reid’ s apartment on the night of June 29, assaulting her, leaving flowers, or taking her
phone. His subsequent visits to Reid’ s apartment and the mailing of postcards strongly indicated
that, months later, he remained so determined to resume a relationship with her that he would
disregard the no-contact orders and take extreme measures to rekindle the relationship. The
subsequent visits and the postcards were thus probative as to the veracity of his alibi defense
against the charges arising from the June incident.
The trial court could have admitted evidence of one set of charges in a separate trial on
the other set. Thus, Bruce fails to show that he necessarily incurred any additional risk of unfair
prejudice by facing the charges in a single trial. This factor also weighs against severance.
As set out above, a trial court abuses its discretion if its decision is manifestly
unreasonable or based upon untenable grounds or reasons. As just shown, the trial court's denial
of severance is consistent with the criteria in Sutherby. Further, Bruce fails to meet his burden
of establishing prejudice of the kinds identified in Bythrow, 114 Wn.2d at 718, that require
severance as a matter of law. Thus, the trial court did not abuse its discretion by denying Bruce’ s
severance motion.
II. DOUBLE JEOPARDY
Bruce argues that entry of convictions for first degree burglary and residential burglary
placed him in double jeopardy because the residential burglary conviction rested on the same
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No. 45772-5-II
evidence used to prove the first degree burglary. He therefore asks us to reverse and dismiss the
residential burglary conviction. The State concedes the error and agrees as to the remedy. We
accept the State’ s concession.
Because the burglary statutes do not expressly permit multiple punishments for the same
underlying conduct, 6 we determine whether the two convictions amount to double jeopardy using
the “ same evidence” test. State v. Hughes, 166 Wn.2d 675, 681-82, 212 P.3d 558 (2009). Under
this test, “ if the crimes, as charged and proved, are the same in law and in fact, they may not be
punished separately absent clear legislative intent to the contrary.” State v. Freeman, 153 Wn.2d
765, 777, 108 P.3d 753 (2005). In this inquiry, we must “ consider the elements of the crimes as
charged and proved, not merely at the level of an abstract articulation of the elements.”
Freeman, 153 Wn.2d at 777. Absent a clear showing of contrary legislative intent, multiple
punishments for the same act violate the prohibition against double jeopardy if “‘the evidence
required to support a conviction upon one of [the charged crimes] would have been sufficient to
warrant a conviction upon the other.’” In re Pers. Restraint of Orange, 152 Wn.2d 795, 820, 100
P.3d 291 (2004) (emphasis omitted) (alteration in original) (quoting State v. Reiff, 14 Wash. 664,
45 P. 318 (1896)).
As relevant here, a person commits first degree burglary if “with intent to commit a crime
against a person or property therein, he or she enters or remains unlawfully in a building
and . . . , while in the building . . . assaults any person.” RCW 9A.52.020. A person commits
residential burglary “ if, with intent to commit a crime against a person or property therein, the
6
A statute does expressly authorize punishment for both a burglary and the crime committed
inside a building that makes the unlawful entry or remaining qualify as a burglary. RCW
9A.52.050. The statute does not purport, however, to allow for two separate burglary
convictions based on the same unlawful entry.
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No. 45772-5-II
person enters or remains unlawfully in a dwelling.” RCW 9A.52.025. These may at first appear
different in law, as the first requires proof of an assault, which the second does not, and the
second requires proof of unlawful entry or remaining in a dwelling, while the first requires only
unlawful entry into or remaining in a building.
As charged and proved here, however, they are the same both in law and fact. The only
building the State alleged Bruce unlawfully entered was Reid’ s residence, a “ dwelling.” RCW
9A.52.025. Thus, the evidence proving the first degree burglary charge plainly sufficed to prove
the residential burglary charge.
We can discern no clear legislative intent to impose multiple burglary convictions based
on a single unlawful entry. Under the facts presented here, entry of convictions for both
residential burglary and first degree burglary placed Bruce in double jeopardy.
We reverse and dismiss the residential burglary conviction. We affirm the trial court in
all other respects.
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 pursuant to RCW 2.06.040, it
is so ordered.
BJORGEN, J.
We concur:
JOHANSON, C.J.
SUTTON, J.
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