IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON STATE OF WASHINGTON, Respondent,

v. LARRY EUGENE MULANAX, Appellant. NO. 68467-1-1 DIVISION ONE

UNPUBLISHED OPINION
FILED: February 18, 2014 »>s» ,-o ea C/>o JC- 

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Leach, C.J. — Larry Mulanax appeals his convictions for possession of cocaine with intent to manufacture or deliver, with a firearm allegation; assault in 

### the second degree with intent to commit unlawful imprisonment; unlawful imprisonment; and intimidating a witness. He claims that the trial court erred by imposing a firearm enhancement when the jury found only that he possessed a 

### deadly weapon. He also contends that his convictions for both unlawful imprisonment and second degree assault with intent to commit unlawful imprisonment violated the prohibition against double jeopardy. He challenges the admission ofevidence of his prior misconductto show modus operandi under ER 404(b) and the sufficiency of the evidence supporting his conviction for intimidating a witness. Finally, he alleges prosecutorial misconduct. We find noNO. 68467-1-1/2

merit in Mulanax's arguments about ER 404(b), sufficiency, and prosecutorial misconduct. However, the State concedes error in the firearm enhancement, and Mulanax's convictions for both unlawful imprisonment and assaultwith intent to commit unlawful imprisonment put him in double jeopardy. We affirm Mulanax's convictions for possession, assault with intent to commit unlawful imprisonment, and intimidating a witness. But we vacate the firearm enhancement and the conviction for unlawful imprisonment and remand for resentencing. FACTS InJuly 2011, Kaylynn Swanson, Richard Ace Brown, Mary Schuman, and Jennifer Bertalan were staying with Larry Mulanax at his home. Swanson, Bertalan, Brown, and Schumann all used illegal drugs. Mulanax provided and allowed the use ofcocaine in his house. Around noon on July 30, 2011, Schumann gave Swanson permission to borrow her car. Swanson agreed to have itback by 5:00 p.m. but did not return until after midnight. Brown, Schuman, Bertalan, and Mulanax discussed "what kind of revenge should happen." Mulanax, Brown, and Bertalan wanted to cut her hair; Schuman wanted to beat her up. When Swanson returned, she went back to Schuman's bedroom to return 

### her keys and explain her absence. Brown came into the bedroom and
-2-NO. 68467-1-1/3



### confronted Swanson. He ordered herto undress and used his pocketknife to cut 

### offherponytail. Mulanax entered the room andtold Swanson that she "had a choice to eitherhave the rest of her hair cut off orget beat up really bad." Brown and Bertalan cut and shaved the rest of Swanson's hair. Brown told Swanson not to move or he would hurt her. Bertalan told Swanson, "Don't worry honey, 

### this happened to metoo." Mulanaxwatched andtold Brown andBertalan when 

### to stop cutting Swanson's hair. Mulanax said to Swanson, "God, don't be so distressed. You are lucky [T]he lasttwo girls Iseen this happened to, they 

### beat the living hell out oftoo, andyou ain'tgot a mark onyou." Then Mulanax tookpicturesofSwanson nakedwith her head shaved andtold Swansonthatthe pictures were for his own use and benefit. Swanson testified that she knew what was going to happen because she 

## was presentsometimeearlierwhen Mulanaxordered othersto shaveBertalan's head and beatherup aftershestolefrom him.1 Swansonwas presentwhenthe two individuals returned and when Mulanax paid them with crack cocaine. She 

### later saw a photo ofBertalanwith a shaved head andblackeyes. After Mulanax took photos, Brown and Mulanax drove Swanson to a 

### friend's house at herrequest. Swanson said,"Acefirstthreatened me thatifthey 

### were tothink for any reason Iwas going to call anyone orcall the police, that 1 Bertalan testified at trial that this occurred while she was staying at a motel in Everett in May 2011. -3-NO. 68467-1-1/4 they wouldn't let me go" and that Mulanax said, "[l]fhe thought for any reason I
was going to be telling anyone, that he wouldn't let me go." Two days later, Swanson reported the incident to police. In a subsequent search of Mulanax's home, police found 22 small "baggies" of cocaine, digital scales, drug paraphernalia, and two firearms. They also found the photographs of Swanson and Swanson's ponytail in Mulanax's safe. Mulanax had the keys to the safe in his pocket. Police recovered a photograph of Bertalan's shaved head on Mulanax's computer hard drive. The State charged Mulanax with possession of a controlled substance with intent to manufacture or deliver, with a firearm allegation; second degree assaultwith intent to commit unlawful imprisonment; unlawful imprisonment; and 

### intimidating a witness. Mulanax moved to exclude the evidence associated with the attack on Bertalan, butthe trial court admitted the evidence under ER 404(b) forthe purpose ofshowing a modus operandi. 

### The jury found Mulanax guilty as charged and also found in a special verdict that Mulanax was armed with a deadly weapon when he committed the 

### crime ofpossession with intent to deliver. Mulanax appeals.

-4-NO. 68467-1-1/5

ANALYSIS ER 404(b) Mulanax argues that the trial court improperly admitted under ER 404(b) the "brutally prejudicial" evidence associated with the uncharged assault against Bertalan. He contends that "[t]he purported 'modus operandi' was insufficiently 

### proven and not probative where identity was not an issue." He argues further that the prosecutor misused the evidence by urging the jury to convict Mulanax for both incidents, though one was uncharged. 

### Interpretation of a rule of evidence presents a question of law that we 

### reviewde novo.2 Ifthetrial courtcorrectly interpreted therule, this courtreviews the trial court's decision to admit orexclude evidencefor an abuse ofdiscretion.3 A trial court abuses its discretion if itbases its decision on untenable grounds or reasons.4 

### "ER404(b)5 is a categorical bar toadmission of evidenceforthe purpose of proving a person's character and showing that the person acted in conformity 2Statev. Foxhoven. 161 Wn.2d 168, 174, 163 P.3d 786 (2007). 3 Foxhoven. 161 Wn.2d at 174; State v. Gresham, 173 Wn.2d 405, 419, 269 P.3d 207 (2012). 

### 4State v. VvThanq. 145 Wn.2d 630, 642, 41 P.3d 1159 (2002). 

### 5ER 404(b)provides, infull:

Evidence of other crimes, wrongs, or acts is not admissible to 

### prove the character of a person in order to show action in 

### conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, 

### preparation, plan, knowledge, identity, or absence of mistake or accident. -5-NO. 68467-1-1/6 

## with that character."6 Though "there areno 'exceptions' to this rule,"7 the rule permits a court to admit prior misconduct for certain other purposes, such as 

### proofofmotive, plan, oridentity.8 Toadmitsuchevidence, thetrialcourtmust(1) find by a preponderance of the evidence that the misconduct occurred, (2) identify the purpose for which the evidence is offered, (3) determine if the evidence is relevantto prove an elementof the crime charged, and (4) weigh the 

## probative value ofthe evidence against its prejudicial effect.9 The court must conductitsanalysison therecord.10 Evidence of prior bad acts introduced to establish a modus operandi is 

### relevant to the charged crime"only ifthe method employed in the commission of both crimes is 'so unique' that proof that an accused committedoneof the crimes 

### creates a high probabilitythat he also committed the other crimeswith which he 

### ischarged"11 and"when thefocus oftheinquiry is theidentity of theperpetrator, 

### notwhetherthecharged crime occurred."12 The modus operandi alleged "'must

6Gresham, 173 Wn.2d at420. 7Gresham, 173 Wn.2d at421. 8 Foxhoven, 161 Wn.2d at 175; State v. Evervbodvtalksabout, 145 Wn.2d 456, 465-66, 39 P.3d 294 (2002). 9 In re Pet, of Coe. 175 Wn.2d 482, 493, 286 P.3d 29 (2012) (quoting Foxhoven, 161 Wn.2d at 175). 

### ^"Foxhoven, 161 Wn.2d at 175. 11 Thang, 145 Wn.2d at 643 (quotingState v. Russell, 125 Wn.2d 24, 66- 67, 882 P.2d 747 (1994)). 12 Statev. DeVincentis, 150Wn.2d 11, 21, 74 P.3d 119 (2003). -6-NO. 68467-1-1/7


### be so unusual and distinctive as to be like a signature.'"13 Asufficiently unique method does not require each feature of the crime to be unique; seemingly
common features, especially when combined with a lack of dissimilarities, can 

### combineto create a unique signature.14 Butwhen toomany dissimilarities exist, 

### the evidence should be excluded.15 "'Whether the prior offenses are similar enough to the charged crime to warrant admission is left to the discretion ofthe trial court.'"16 Following the State's offer of proof, the trial court (1) found by a preponderance of the evidence that the prior misconduct involving Bertalan occurred; (2) identified the purpose for the evidence as modus operandi; (3) determined that the evidence was relevant to prove Mulanax's identity and involvement in the charged crime; and (4) found that the evidence of the prior act, though undoubtedly prejudicial, was not more heinous than the charged 

### crime, and consequently that its probative value outweighed its prejudicial effect. 

### 13 Foxhoven, 161 Wn.2d at 176(internal quotation marksomitted) (quoting State v. Coe, 101 Wn.2d 772, 777, 684 P.2d 668 (1984)). 

### 14 Coe, 175 Wn.2d at 494 (citing Thanq. 145 Wn.2d at 644); see also State v. Bradford. 56 Wn. App. 464, 468-69, 783 P.2d 1133 (1989) (finding sufficient similarities where burglaries committed by two black males driving small blue pickup truck, one or both wearing baseball caps, at night in mobile 

### home display lots, using channel lock pliers to twist off doorknobs); State v. Jenkins, 53 Wn. App. 228, 237, 766 P.2d 499 (1989) (finding sufficient similarities where burglaries committed by offender driving brown Camaro, at onlyground floor units, withpartner, using pipe wrench to open door). 

### 15 Coe, 175Wn.2d at 494 (citing Thanq, 145Wn.2d at 645). 16 Foxhoven, 161 Wn.2d at 177(quoting Jenkins. 53Wn. App. at236). -7-NO. 68467-1-1/8 

### The court found "strong" similarities between the prioract and the charged crime and thatthey supported the ruling. 

### Mulanax first contends that because he does not dispute his presence at the assault on Swanson, evidence of a prioract has little or no probative value to 

### prove identity. The defendant in State v. Fualaau17 argued that because the State had two live witnesses who would testify that he committed the current 

### offenses, the evidence of priorcrimes was not necessary to prove identity and should be excluded. Because Fualaau's alibi defense "placed the question of identity squarely at issue," however, the trial court admitted the evidence, and we 

### affirmedthetrial court'sruling.18 InState v. VvThanq.19the trialcourt admitted evidence ofthe defendant's prior assaultconviction for the purpose ofproving identity at his murdertrial. Like Mulanax, Thang denied committing the crime but admitted he was present at the 

### scene.20 The Washington Supreme Court held that the trial court erred in admitting evidence of the prior crime, but not because Thang's undisputed presence destroyed the evidence's relevance to show identity. Rather, the admission was erroneous because the merely general similarities between the



### 17 155Wn. App. 347, 353-54, 228P.3d771 (2010). 18 Fualaau. 155Wn. App. at 354, 356. 19 20Thanq. 145Wn.2d at640-41 145 Wn.2d 630, 640-41, 41 P.3d 1159 (2002). 8-NO. 68467-1-1/9



### two crimes were not sufficiently signature-like to constitute modus operandi.21 Whether the defendant presents an alibi defense or concedes he was present, denial of all involvement in a crime admittedly committed puts the identity ofthe 

### perpetrator at issue. In each instance, the defendant necessarily asserts that

someone else committed the crime. Thus, evidence of a prior bad signature-like 

### act by the defendant becomes relevant. The trial court properly interpreted ER 404(b) to conclude that Mulanax's undisputed presence did not destroy the relevance ofevidence of his prior actoffered to show modus operandi. 

### Our inquiry does not end with relevance, however. As we noted in Fualaau. "The critical determination for the trial court to make is whether there
are sufficient similarities between the crimes to make evidence of the prior crime 

## probative ofthe defendant's identity as the perpetratorofthe crime charged."22 In Fualaau. both the currently charged and prior assaults shared a number of similar features consistent with a ritual punishment. We concluded that the 

### distinctive ritualistic qualities shared by the two crimes made evidence that the



### 21 Thanq, 145 Wn.2d at 643-45 (concluding that theft of a purse and jewelry, elderlyvictims who were kicked, perpetrator's allegedly similar remarks were not probative of modus operandi, especially where there was no geographic or temporal proximity, and collecting cases showing absence or presence of modus operandi). 

### 22 Fualaau. 155Wn. App. at 357. -9-NO. 68467-1-1/10

defendant committed the first "strongly probative of his identity as the perpetrator 

### ofthe second,notwithstanding anydissimilaritiesbetweenthetwoevents."23 Though it does not demonstrate a particular tradition or ritual as in Fualaau, the record here reveals distinctive and unusual similarities between the earlier uncharged assault against Bertalan and the charged assault against Swanson. Both involved young women with drug addictions who appeared to be under Mulanax's patronage and/or control. Others carried out both assaults, allegedly at Mulanax's direction, to punish the unauthorized taking or holding of property. Both involved the cutting and shaving ofthe victim's hair, accompanied by a beating or the threat of a beating. Both women said they were warned not 

### to go tothe police. Mulanax admitted photographing both women sometime after their heads were shaved, and police seized evidence of both incidents from Mulanax's safe and computer hard drive. Moreover, there was temporal and 

### geographic proximity between the incidents: Bertalan's took place in Everett, sometime around May 2011; Swanson's occurred in Stanwood, a city in the 

### samecounty, at the end ofJuly2011.24 Havingfound byapreponderanceofthe evidence that the assault on Bertalan occurred, the trial court did not abuse its 

### 23 Fualaau, 155Wn. App. at 358. 24 See also Russell. 125 Wn.2d at 68 (allowing joinder of two signature like murders occurring a few weeks apart in Bellevue-Kirkland area). Contra Thanq. 145 Wn.2d at 644 (finding proximity factor not satisfied when crimes committed 18 months apart, on opposite sides ofstate). -10-NO. 68467-1-1/11

discretion in concluding that the peculiar similarities between the two incidents warranted admission ofthe prioract under ER 404(b). We reject Mulanax's assertion that the prosecutor's references to this evidence in closing argument were improper and "tainted the trial." The prosecutor argued in closing that Mulanax "ruined lives with his assaults. He ruined lives with his threats." The prosecutorthen urged thejury to "take control 

### away from him" and "find him guilty of all four crimes." Mulanax argues thatthis
was reversible error because the prosecutor "urge[d] a conviction based on Mulanax's propensity or potential for dangerous behavior," violating ER 404(b)'s "categorical bar" againstpropensityevidence. 

### During closing argument, the prosecutorhas "wide latitude in drawing and 

### expressing reasonable inferences from the evidence."25 The prosecutor's comments here were tied to the properly admitted evidence at trial. "[A]ll four crimes" referred to the four charged crimes. Mulanax fails to demonstrate prosecutorial misconduct. Sufficiency: Intimidating a Witness 

### Mulanax also challenges the sufficiency of the evidence supporting his conviction for intimidating a witness. He contends that his remarks to Swanson after the incident were "about past events, where [he] described his prior


### 25 State v. Gentry. 125 Wn.2d 570, 641, 888 P.2d 1105 (1995). -11-NO. 68467-1-1/12
thoughts" and do not show an intent to prevent Swanson from reporting the crimes. He also argues that the remarks are vague and "do not express the required intentto inflictharm inthe future essential for a true threat." Courts review constitutional questions de novo, and in a case involving pure speech engage in an independent review of the record to ensure a 

### conviction is not a "'forbidden intrusion on thefield of freeexpression.'"26 RCW 9A.72.110(1) defines the offense of intimidating a witness as the use of a threat against a current or prospective witness to influence testimony, induce the witness to elude legal process or absent herself, or not report the offense. 

### "Importantly, only threats that are 'true' may be proscribed."27 Our Supreme Court has adopted an objective test of what constitutes a "true threat": "'[A]
statement made in a context or under such circumstances wherein a reasonable person would foresee that the statement would be interpreted
... as a serious expression of intention to inflict bodily harm upon or to take the life' of another 

### person."28 This objective standard focuses on the speaker, who need not

26 State v. Schaler. 169 Wn.2d 274, 282, 236 P.3d 858 (2010) (internal quotation marks omitted) (quoting State v. Kilburn. 151 Wn.2d 36, 49-50, 84 P.3d 1215(2004)). 27 Schaler. 169Wn.2d at283. 

### 28 Kilburn. 151 Wn.2d at 43 (alteration in original) (internal quotation marks omitted) (quoting Statev. Williams. 144 Wn.2d 197, 207-08, 26 P.3d 890 (2001)). -12-NO. 68467-1-1/13 

### actually intend to carry out the threat: "It is enough that a reasonable speaker wouldforesee that the threatwould be considered serious."29 Sufficiency of the evidence also presents a question of constitutional 

## magnitude that adefendant may raise for the first time on appeal.30 Sufficient evidence supports a conviction if, when viewed in a lightmost favorable to the 

### State, it permits any rational trier of fact to find the essential elements of the 

### crime beyond a reasonable doubt.31 A challenge to the sufficiency of the evidence admits the truth of the State's evidence and all reasonable inferences 

### from that evidence.32 A reviewing court need not be convinced of the defendant's guilt beyond a reasonable doubt, but only that substantial evidence 

### supports the State's case.33 We do not review issues of credibility or 

### persuasivenessoftheevidence.34 To define the elementofthreat inthe offense ofintimidating a witness, the trial court instructed thejury as follows: Threat means to communicate, directly or indirectly, the 

### intent to cause bodily injury to the person threatened or to any other person ....
29 Schaler. 169Wn.2d at 283. 

### 30 Statev. Alvarez. 128 Wn.2d 1,10, 904 P.2d 754 (1995). 31 State v. Green. 94 Wn.2d 216, 221, 616 P.2d 628 (1980) (quoting Jackson v. Virginia. 443 U.S. 307, 319, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979)). 32 Statev. Salinas. 119Wn.2d 192, 201, 829 P.2d 1068 (1992). 

### 33 Statev. Fiser. 99 Wn. App. 714, 718, 995 P.2d 107 (2000). 

### 34Fiser,99Wn.App. at 719. -13-NO. 68467-1-1/14
Threat also means to communicate, directly or indirectly, the intent immediately to use force against any person who is present at the time. To be a threat, a statement or act must occur in a context or under such circumstances where a reasonable person, in the position of the speaker, would foresee that the statement or act would be interpreted as a serious expression of intention to carry outthe threat ratherthan as something said injestoridle talk. 

### Mulanax relies on State v. Brown.35 where the defendant said in a phone conversation that he "had thought about shooting" thejudge who sentenced him for driving underthe influence ofan intoxicant. Mulanax argues that, like Brown's remarks, his words were not true threats but only past thoughts, which the State 

### maynotcriminalize.36 Brown is inapposite. Mulanax was not describing his pastthoughts about
an earlier event to an uninvolved third party. While Brown forced Swanson to submit to head-shaving and nude photographs, Mulanax told her that "the last two girls" he'd seen this happen to, "they beatthe living hell outof too." Swanson had seen a photograph ofBertalan with a shaved head and blackeyes. Mulanax also said that "ifhe thought for any reason [she] was going to be telling anyone, that he wouldn't let [her] go." Given the context ofthe statements, a reasonable person inthe speaker's position would foresee that Mulanax's statements would be interpreted not as past thoughts but as a serious expression of intention to


### 35 137Wn. App. 587,589-90, 154P.3d 302(2007). 36 See Brown. 137Wn. App. at591-92. -14-NO. 68467-1-1/15

carry out a threat of bodily harm. A reasonable juror could have found that Mulanax made the statements to influence Swanson against reporting the crime. Sufficientevidence supports Mulanax's conviction. Finally, Mulanax argues that by not including the words "true threat" in the "to-convict" instructions, the trial court omitted an "essential element" of the offense, thereby diluting the State's burden of proof. But the definition of an element is notthe element itself. "No Washington court has ever held that a true threat is an essential element of any threatening-language crime or reversed a conviction for failure to include language defining what constitutes a true threat in 

### a charging documentor 'toconvict' instruction."37 In itsjury instructions, thetrial courtcorrectly stated the requirement of a serious expression ofintention to inflict bodily harm. We affirm Mulanax's conviction for intimidating a witness. Prosecutorial Misconduct In her closing argument, the prosecutor characterized the law of accomplice liabilityas "the easiestway to think ofthis is sort of in for a penny, in for a pound." Mulanax contends that this statement misrepresents the law and 

### constitutes prosecutorial misconduct.38 Because Mulanax did notobject to the 37 State v. Tellez. 141 Wn. App. 479, 483, 170 P.3d 75 (2007); see also State v. Allen. 176Wn.2d 611, 628, 294 P.3d 679 (2013). 

### 38 See In re Pers. Restraint ofWilson. 169Wn. App. 379, 392, 279 P.3d 990 (2012) (finding prejudicial cumulative errorthat included the prosecutor's use of the "now-discredited argument of 'in for a penny, in for a pound'"), review denied. No. 87901-0 (Wash. Mar. 1, 2013). -15-NO. 68467-1-1/16 

### alleged misconduct at trial, he cannot raise this issue on appeal unless the misconduct was "so flagrant and ill intentioned" as to cause enduring prejudice that could not have been cured by instruction to the jury and had a substantial 

### likelihoodofaffectingtheverdict.39 Though we have characterized the "in for a penny" explanation as "discredited," these remarks are not the type of comments that the Washington 

### Supreme Courthasfound to beinflammatory.40 In thetwo cases Mulanaxcites 

## in support of his position, In re Personal Restraint of Wilson41 and State v. Cronin.42 the prejudicial error that thiscourt and the Supreme Courtfound was not primarily the "in for a penny" remark, but rather the improper arguments, 

### erroneous instructions,43 and "meager evidence" supporting the accomplice
convictions. 

### Here, the prosecutorfollowed the general "in for a penny" illustrationwith

a specific application ofthe law: 

### 39 State v. Emery. 174 Wn.2d 741, 760-61, 278 P.3d 653 (2012). 

### 40 Emery. 174 Wn.2d at 763 (collecting cases where prosecutor's inflammatory comments prejudiced defendant); see also State v. Monday. 171 Wn.2d 667, 678-79, 257 P.3d 551 (2011) (holding prosecutor's appeal to racial bias was improperand prejudicial). 

### 41 169 Wn. App. 379, 392, 279 P.3d 990 (2012), review denied. No. 87901-0 (Wash. Mar. 1, 2013). 

### 42 142 Wn.2d 568, 578-79, 14 P.3d 752 (2000). 43 Prosecutors in both cases stated that accomplice liability attaches when the defendant knows that he or she is aiding inthe commission ofany crime, not 

### "the" crime charged, as the statute requires. In Wilson, the obsolete jury instruction likewise said "a crime." 169Wn. App. at 390. -16-NO. 68467-1-1/17

The defendant is legally accountable for the actions ofAce and for the actions of Jennifer because he helped plan this. He directed their actions. He supervised it. He stood by ready to lend them aid. And he finished it up by taking pictures and telling [Swanson] that ifshe told anyone what happened there, they weren't going to let her go. That makes the defendant an accomplice to what happened in that room . . . because it all happened under his supervision. This stated the law ofaccomplice liabilitycorrectly. Thejury also received proper instruction from the trial court. We reject Mulanax's prosecutorial misconduct claim. Double Jeopardy Mulanax asserts that his convictions for both unlawful imprisonment and assault inthe second degree with intent to commit unlawful imprisonment violate the prohibition against double jeopardy. According to Mulanax, "The unwanted touching necessary to prove the assault charge was the same evidence used to prove the restraintelement ofthe unlawful imprisonmentallegation." 

### Adoublejeopardyclaim presents a question oflaw reviewed de novo.44 The guaranty againstdoublejeopardy inthe United States and Washington State 

### Constitutions protects againstmultiple punishments for the same offense.45 A defendant may raise a doublejeopardy challenge for thefirst time onappeal.46 Multiple convictions may constitute a double jeopardy violation even when 

### 44 State v. Frodert. 84Wn. App. 20, 25, 924 P.2d 933 (1996). 45 State v. Calle. 125Wn.2d 769, 776, 888 P.2d 155 (1995). 46State v. Adel. 136Wn.2d629,631-32, 965 P.2d 1072(1998). -17-NO. 68467-1-1/18



### sentences run concurrently because separate convictions implicate other 

### adversecollateral consequences.47 Within constitutional limits, a legislature has the powerto define prohibited 

### conduct and to assign punishment.48 To analyze a double jeopardy claim, a court must determine what punishments the legislative branch has authorized 

### and if it intended to impose separate punishments for the acts that led to the 

### defendant's convictions.49 This court applies a three-part test todetermine ifthe legislature intended to impose multiple punishments for the same criminal 

### conduct.50 First, the court examines the statutory language to determine if it 

## expressly authorizes multiple convictions for a single act.51 Second, if the relevant statutes do not reveal an express intentto impose multiple punishments, 

### Washington courts apply a "same evidence test" that is similar to the rule set forth in Blockburger v. United States:52 offenses are the "same offense" for

47 Calle. 125Wn.2d at773-74. 

### 48 Calle. 125Wn.2dat776. 

### 49 Calle. 125Wn.2d at 776 (citing Whalen v. United States, 445 U.S. 684, 688, 100 S. Ct. 1432, 63 L. Ed. 2d 715 (1980)); State v. Baldwin. 150 Wn.2d 448, 454, 78 P.3d 1005 (2003). 

### 50 State v. Martin. 149 Wn. App. 689, 698, 205 P.3d 931 (2009); see also Calle. 125 Wn.2d at 776-80. 

### 51 Calle. 125 Wn.2d at 776; Martin, 149 Wn. App. at 698. RCW 9A.52.050, where the legislature explicitly provided for cumulative punishments for crimes committed during a burglary, is an example of this express authorization. 

### 52 284 U.S. 299, 304, 52 S. Ct. 180, 76 L. Ed. 306 (1932). -18-NO. 68467-1-1/19 

### purposes of double jeopardy when the crimes are the same in fact and in law.53 "Offenses are the same infact when they arise from the same act or transaction. They are the same in law when proof of one offense would also prove the 

### other."54 The Washington Supreme Court has emphasized that when courts apply the Blockburger-"same evidence" test, they must compare elements ofthe 

### offenses notinthe abstract, but as charged andproved attrial.55 Third, when two offenses satisfy the Blockburger-"same evidence" test, courts look for any evidence of contrary legislative intent that would rebut the 

### presumption that multiple convictions are appropriate.56 Where the degree of

one offense depends on conduct constituting a separate offense, the merger doctrine may help determine legislative intent, and the court will examine ifthe commission of the "included" crime had an independent purpose or effect from 

### the other crime.57 "[W]hen separately criminalized conduct raises another offense to a higher degree, we presume that the legislature intended to punish



### 53 State v. Vladovic. 99Wn.2d413,423, 662 P.2d 853 (1983). 

### 54 Martin, 149Wn. App. at 699(citing Calle. 125Wn.2d at777-78). 55 In re Pers. Restraint of Orange. 152 Wn.2d 795, 818, 100 P.3d 291 (2004); see also Martin. 149Wn. App. at 699-700. 56 Calle. 125 Wn.2d at780. 

### 57 State v. Freeman. 153Wn.2d 765, 778-79, 108 P.3d 753 (2005); Martin. 149Wn. App. at 699. -19-NO. 68467-1-1/20

both offenses only once, namely, for the more serious crime with the greater sentence."58 

### The Staterelies heavilyon Statev. Frohs.59 inwhichthis courtconsidered
a challenge to separate convictions for assault inthe fourth degree and unlawful imprisonmentand affirmed both convictions. Importantfacts inFrohs distinguish it. The assaultwas inthe fourth degree and was therefore the lesser offense. It


### was not predicated on the unlawful imprisonment; the courtemphasized thatthe defendant had already assaulted and injured the victim before he told her she would be shot ifshetried to leave.60 

### We consider State v. Leming61 more analogous. There, the jury found defendant Leming guilty of multiplecharges that included felony harassment and 

### second degree assault "predicated on felony harassment."62 The court noted thatto prove the felony harassment charge, "the State had to prove that Leming 

### (1) threatened to kill [the victim] and (2) that she feared he would carry out the 

### threat."63 To prove the assault in the second degree charge, the State had to
58 State v. Leming. 133 Wn.App. 875, 882, 138 P.3d 1095 (2006) (citing Freeman, 153 Wn.2d at 772-73). 

### ^S Wn. App. 803, 804-05, 924P.2d 384 (1996). 60 Frohs, 83 Wn. App. at 815. The courtcontinued, "We doubt that [the victim] wouldagree that she suffered no separate injuryfrom the assaultthat was distinct from the injury ofunlawful restraint." Frohs, 83 Wn. App. at 815. 

### 61 133Wn. App. 875, 138 P.3d 1095(2006). 62 Leming, 133Wn.App. at 880. 

### 63 Leming, 133Wn. App. at 889. -20-NO. 68467-1-1/21

prove that Leming assaulted his victim "by intending to place her in fear that he would carry out his threat to kill her. In short, the State had to prove the same 

### factsforboth crimes, namely, thatLeming committedfelony harassment."64 The court held that these two convictions "predicated on the same acts of felony harassment" resulted in multiple punishments for the same offense and thereby violated Leming's federal and state constitutional rights by putting him in double 

### jeopardy.65 Thecourt reversed Leming's conviction for felony harassment, the lesser offense, because "the felony harassment conviction was incidental to the 

### second degree assaultconviction."66 The State charged Mulanax with an assaultthat was raised to the second 

### degree by intentto commit unlawful imprisonment. The lesseroffense is notthe 

### assault, as in Frohs, but theunlawful imprisonment.67 An abstractexamination of the elements of assault and of unlawful imprisonment does satisfy the "same evidence" test; proof of an assault is not necessary to prove unlawful 

### imprisonment.68 Butas in Leming, wherethetwo convictionswerepredicatedon the same acts of felony harassment, here the two convictions are predicated on the same act of unlawful imprisonment. This violates the prohibition against 

### 64 Leming, 133Wn. App. at 889. 65 Leming, 133Wn. App. at 889. 66 Leming. 133Wn. App. at 887. 67Assaultinthe second degree is a class Bfelony. RCW9A.36.021 (2)(a). Unlawful imprisonmentis a class C felony. RCW 9A.40.040(2). 

### 68 Frohs, 83Wn. App. at 814. -21-NO. 68467-1-1/22

double jeopardy. We affirm Mulanax's conviction for assault with intent to commit unlawful imprisonment but vacate his conviction for unlawful 

### imprisonmentas the lesseroffense.69
Firearm Enhancement Thejury found that Mulanax was armed with a deadly weapon at the time of the commission of the crime of possession with intent to deliver a controlled substance. The trial court imposed a firearm enhancement of 36 months. The State concedes thatthis was erroneous. When the trial court instructs thejury on 

### aspecificenhancement, thecourtisbound bythejury'sfinding.70 Here, thejury verdict authorized only a deadly weapon enhancement, not the more severe firearm enhancement. We remand for resentencing consistent with the jury's 

### finding ofadeadlyweaponenhancement.71
CONCLUSION Because the trial court properly admitted ER 404(b) evidence to show 

### modus operandi, sufficient evidence supported Mulanax's conviction for 

### intimidating a witness, and Mulanax fails to show any prejudicial error in the prosecutor's closing argument, we affirm his convictions for possession of cocaine with intent to deliver, assault inthe second degree with intentto commit 

### 69 See Martin, 149Wn. App. at 701. 70 Statev.Williams-Walker, 167 Wn.2d 889, 899, 225 P.3d 913 (2010). 71 Williams-Walker, 167 Wn.2d at 897. -22-NO. 68467-1-1/23


### unlawful imprisonment, and intimidating a witness. But we vacate Mulanax's conviction for unlawful imprisonment and the firearm enhancement and remand for resentencing. 

# /^Oudt O,

WE CONCUR: 

# 6zn{iJ^

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