No. 26043-7-III.The Court of Appeals of Washington, Division Three.
May 1, 2008.
Appeal from a judgment of the Superior Court for Spokane County, No. 06-1-04163-2, Neal Q. Rielly, J., entered April 6, 2007.
Affirmed by unpublished opinion per Brown, J., concurred in by Kulik, A.C.J., and Thompson, J. Pro Tem.
BROWN, J.
Larry F. Reid appeals his first degree robbery and third degree assault convictions, contending the convictions violate double jeopardy principles. He argues the third degree assault conviction should either be dismissed or merged into his first degree robbery conviction. Alternatively, he contends the convictions are the “same criminal conduct” for sentencing purposes. Because the crimes are not the same in law or fact, and are supported by separate assaults, we affirm.
FACTS
In October 2006, police arrested Mr. Reid for assaulting and robbing Daniel Kask; the State charged him with first degree robbery and third degree assault.
According to Mr. Kask, Larry Reid approached him outside the House of Charity, asking him if he wanted to buy an illegal drug. Mr. Kask told him he was not interested, but Mr. Reid persisted. Mr. Kask pulled six dollars from his pocket to show Mr. Reid he did not have enough money. Mr. Kask testified Mr. Reid “[g]ot on top of [him] and choked [him],” saying “[g]ive me — give me your money.” Report of Proceedings (RP) (March 6, 2007) at 35. Mr. Reid took the money from Mr. Kask’s coat pocket and got up. As Mr. Kask sat up and tried to gather himself, Mr. Reid struck him with his fist “knock[ing] [him] out” and splitting his lip, requiring stitches. RP at 38.
According to William Tierney, House of Charity employee, he saw Mr. Reid hold Mr. Kask down with his forearm “kind of high on his neck/shoulder area,” taking money from his pocket. RP at 72. Mr. Tierney asked, “what was going on” and Mr. Reid stepped back saying “he was going to knock Mr. Kask out.” RP at 58. Mr. Tierney unsuccessfully attempted to calm Mr. Reid down before Mr. Reid punched Mr. Kask, knocking him over a bench. Mr. Reid walked down the street and got into a red convertible with Idaho plates. Mr. Tierney contacted the police. An outdoor surveillance camera captured the incident. The jury viewed the incident in court.
Police Officer David Adams stopped the red convertible 15 blocks from the House of Charity; Mr. Reid was a passenger in the car. According to Officer Adams and Police Officer Jay Kernkamp, both Mr. Tierney and Mr. Kask identified Mr. Reid as the assailant. Police Officer Devin Eriksen searched Mr. Reid and found seven dollars in cash. Mr. Reid admitted he “clocked” Mr. Kask out of anger, but denied taking his property. RP at 140.
During trial arguments, the prosecutor argued either the choking or the cut lip supported the bodily injury element of first degree robbery. A jury found Mr. Reid guilty of both charges. During sentencing, Mr. Reid stipulated to an agreed offender score of 5 on the robbery conviction and 4 on the assault conviction. Mr. Reid appeals.
ANALYSIS
A. Double Jeopardy and Merger
The issue is whether Mr. Reid’s separate convictions violate double jeopardy principles under the merger doctrine. Mr. Reid contends his third degree assault conviction should either be dismissed or merged into the first degree robbery conviction, as assault is an element of robbery. He argues the State fails to show the jury convicted him of both offenses based on separate acts of assault.
We review issues of double jeopardy and merger de novo. State v. Freeman, 153 Wn.2d 765, 770, 108 P.3d 753 (2005); State v. Zumwalt, 119 Wn. App. 126, 129, 82 P.3d 672 (2003), aff’d, 153 Wn.2d 765, 108 P.3d 753 (2005).
The constitutional guarantee against “double jeopardy” protects individuals from multiple convictions for the “same offense.” Freeman, 153 Wn.2d at 770; Zumwalt, 119 Wn. App. at 130. Legislative intent is the guiding principle in determining whether two or more charged crimes constitute the same offense. Freeman, 153 Wn.2d at 771.
Where legislative intent is neither express nor implicit, courts may consider whether the crimes constitute the same offense by considering whether they are the same in law and the same in fact under Blockburger.[1] Id. at 772. Criminal offenses are the same in law where the elements, as charged, are identical. Id. at 772, 777; Zumwalt, 119 Wn. App. at 130. Criminal offenses are the same in fact where “`the evidence required to support a conviction upon one of [the charged crimes] would have been sufficient to warrant a conviction upon the other.'” Freeman, 153 Wn.2d at 776, quoted in In re Pers. Restraint of Orange, 152 Wn.2d 795, 820, 100 P.3d 291 (2004).
“Another tool for determining legislative intent in the context of double jeopardy is the merger doctrine.” Id. at 777. The merger doctrine applies where “the degree of one offense is raised by conduct separately criminalized by the legislature,” “even [though the] two crimes have formally different elements.” Id. at 772-73, 777-78. Under the merger doctrine, the court “presume[s] the legislature intended to punish both offenses through a greater sentence for the greater crime.” Id. at 773. An exception exists allowing for multiple convictions “if there is an independent purpose or effect to each [offense],” resulting in separate injuries that are not incidental to one another. Id. at 773, 778-79.
An individual is guilty of first degree robbery “when in the commission of a robbery or in immediate flight therefrom he or she inflicts bodily injury.” Clerk’s Papers (CP) at 86; RCW 9A.56.200(1)(a)(iii). An individual is guilty of third degree assault “when he or she with criminal negligence causes bodily harm to another by means of a weapon or other instrument or thing likely to produce bodily harm.” CP at 91; RCW 9A.36.031(1)(d).
We reject Mr. Reid’s contentions and arguments. Even if we were to assume the jury relied on the same bodily injury causing act to support both convictions, a single act can support multiple convictions where the offenses are not the same in law and fact under Blockburger, and have independent purposes and separate injuries under the merger doctrine. The offenses here are not the same in law and fact, and the record shows an independent purpose for the separate injury inflicted after the robbery; Mr. Reid punched Mr. Kask out of anger after the robbery, not to facilitate the robbery.
B. Same Criminal Conduct
The issue is whether Mr. Reid can raise a “same criminal conduct” challenge for the first time on appeal considering his stipulation to an agreed upon offender score and his failure to raise the discretionary matter during sentencing.
We review sentencing matters for abuse of discretion or misapplication of the law. State v. Castro, 141 Wn. App. 485, 494, 170 P.3d 78
(2007). The determination of whether two or more offenses constitute the “same criminal conduct” “involves both factual determinations and the exercise of discretion.” In re Pers. Restraint of Goodwin, 146 Wn.2d 861, 875, 50 P.3d 618 (2002). The failure to raise factual and discretionary matters in the trial court acts as a waiver of the matter on appeal. Id.
Here, Mr. Reid stipulated to an agreed offender score and he failed to raise the discretionary “same criminal conduct” issue at sentencing. He has waived any “same criminal conduct” challenge to his offender score Id. at 874-75.
Affirmed.
A majority of the panel has determined this opinion will not be printed in the Washington Appellate Report, but it will be filed for public record pursuant to RCW 2.06.040.
Kulik, A.C.J. and Thompson, J. Pro Tem., Concur