### IN THE COURT OFAPPEALS OF THE STATE OF WASHINGTON STATE OF WASHINGTON, Respondent,

v. SANDOR RIVERA, Appellant. No. 68914-2-1 DIVISION ONE

UNPUBLISHED OPINION FILED: January 13, 2014 o

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### Becker, J. —SandorRivera challenges the sentence imposed following 

### his convictions for firstdegree assault, firstdegree robbery, firstdegree burglary, and intimidating a witness, all withdeadly weapon enhancements. He argues thatthe assault, robbery, and burglary convictions constituted the same criminal conductfor purposes ofcalculating his offender score. Because the trial court 

### did not abuse its discretion in counting the three convictions separately and because the arguments in Rivera's statement ofadditional grounds for review are without merit, we affirm.
FACTS On February 14, 2010, Gary Cook, a manager at Radio Shack in Federal Way, arrived to open the store for the day's business. He saw Sandor Rivera waiting outside the store. Rivera was wearing a Radio Shack uniform and an official company name tag. He told Cook that he was an employee atthe RadioNo. 68914-2-1/2



### Shack inAuburn and explained he was there for an "intracompany stock transfer," meaning that he would pick up some merchandise from the Federal 

### Way store and transfer it to the Auburn store. Thinking Rivera was a legitimate employee on routine business, Cook unlocked the store, and Rivera followed him
to the stockroom. 

### As Cook turned to open the security cage inthe stockroom where highend electronics were kept, Rivera struck Cook in the back ofthe head several times with a knife with a large blade. Cookfell to the floor and crawled as far away from Rivera as he could. He touched the back of his neck and felt bone; when he removed his hand it was covered in blood. Cook told Rivera that he would not fight back and that Rivera could take whatever he wanted from the stockroom. As Cook lay on the floor, Rivera took Cook's store keys, car keys, 

### and cell phone. Cook explained to Rivera how to unlock the security cage. Cook heard Rivera taking things and putting them inplastic shopping bags. Cook became concerned about the amount of blood he was losing and 

### begged Rivera to hurry and finish so that he could get medical attention. Rivera went intothe employee lunchroom and got an ice pack and some papertowels, which he gave to Cook. Rivera then leftthe stockroom and went into the main store area, where Cook could hear him tearing open packaging. Rivera soon returned to the stockroom and tied Cook up with zip ties he found inthe store.No. 68914-2-1/3

Rivera continued to take items from the stockroom. Rivera then left the 

### stockroom again briefly, but returned and hit Cook two orthree more times in the back ofthe head with the knife, using a downward chopping motion. Cook 

### begged Rivera to stop, reiterating that he would notprevent Rivera from taking the merchandise. Rivera told Cookthat he would stop hitting him and that "it'll all 

### be over real quick." Cook thought Rivera was referring to the robbery, but Rivera then knelt on Cook's body and began poking a screwdriver into Cook's scalp wounds. Afraid Rivera meantto kill him, Cook managed to break out ofthe zip ties and knock the screwdriver from Rivera's hand. 

### Rivera then ordered Cook into the employee bathroom, where he took Cook's wallet. Rivera removed Cook's driver's license and told Cook that ifCook 

### identified him to the police, Rivera would come to his home and kill hisfamily. Rivera tied Cook up with a vacuum cleanerextension cord and put a plastic 

### shopping bag over Cook's head, which he secured around Cook's neckwith a zip tie. Rivera leftthe bathroom and was gone for a longerperiod of time than 

### before, butreturned and began hitting Cook in the back of the head again. Rivera admitted that he did not wantto killCook but also did not want to leave a 

### witness to the crime. Rivera then pressed the knife to Cook's throat. Cook 

### attempted to pushRivera away as Rivera swung the knife athim, slashing at his head and cutting his ear. Rivera again promised hewould stop hitting CookifNo. 68914-2-1/4



### Cook stayed in the bathroom for an hour to give Rivera time to escape. Cook stayed in the bathroom, counting the seconds, until he began experiencing confusion and was afraid that he would lose consciousness. Cook called out and, hearing no answer, determined that Rivera had leftthe store. Cook crawled to his office, called 911, and passed out. 

### The State charged Rivera with one count of first degree assault, one count 

### of firstdegree robbery, one count of first degree burglary and one count of 

### intimidating a witness, all withdeadly weapon enhancements. Thejury convicted Rivera as charged. At sentencing, Rivera argued that all four convictions constituted the same criminal conduct and asked the courtto countthem as only one offense for the purposes of his offender score. The trial court disagreed: There doesn't seem to be a dispute as to whether or not of the three criteria that the Court must look at that the acts occurred atthe same time and did occur inthe same place, which was Radio Shack. Iwill find as to the Burglary charge that there were two victims, that was Mr. Cook as well as the business ofRadio Shack.Iam going to furtherfind that the antimerger statute does apply as itrelates to the facts inthis case. Iam going to find thatthere are differing intents as to the othercharges. Looking at the charge of Burglary, if you will, there certainly was the intentto enter into the store; and the charge of Burglary inthe First Degree once there was an assault. Iwill find that that intent was committed. The issue of Robbery, Iwill find that although he did enter and remain in the store, which this Courtfollowing the assaultfinds

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is burglary, that there further was the intentto commit a Robbery with force. He did, in fact, turn his attention on Mr. Cook, took the 

### keys to the cage, as well as took » as well as the cell phone of Mr. Cook. He did so with the threatened use ofviolence, and he also did so with a deadly weapon. 

### As to the assault. Even after entering into the store and, if 

### you will, robbing Mr. Cook, he continued to assault Mr. Cook. Indeed, he basically tortured Mr. Cook, causing great bodily harm. 

### Iam going to findthatthe attack orthe torture, the cutting ofthe neck, the tapping the base ofthe skull, the placing ofthat bag around his head, indeed, was -- itwas so far in excess of what was necessary in orderto committhe burglary and the robbery, as well. As to the intimidation of a witness. Finally, the defendant threatened both Mr. Cook's life as well as the life of his family; and that, indeed, and Ithink as the facts bear out here was successful 

### to prevent Mr. Cookfrom telling the police exactly what happened. Iwill find that in so doing thatthe purpose was to thwart investigation or any subsequentprosecution. Rivera appeals.

DISCUSSION Same Criminal Conduct 

### Rivera argues thatthe trial court erred when it found thatthe convictions 

### for burglary, robbery, and assaultwere not the same criminal conduct. Under the Sentencing Reform Act of 1981, an offender's sentence range foreach conviction is ordinarilycalculated by counting "allothercurrent and prior 

### convictions as ifthey were prior convictions for the purpose of the offender score." RCW 9.94A.589(1)(a). The act provides an exception to this general rule ifthe courtfinds that some or all ofthe current offenses encompass the same 

### criminal conduct. RCW 9.94A.589(1)(a). Crimes constitute the same criminal

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### conductwhen they "require the same criminal intent, are committed atthe same time and place, and involve the same victim." RCW 9.94A.589(1)(a). Unless all three ofthese elements are present, the offenses do not constitute the same criminal conduct and must be counted separately in calculating the offender
score. State v. Porter, 133 Wn.2d 177, 181, 942 P.2d 974 (1997). "The statute 

### is generally construed narrowly to disallow most claims that multipleoffenses constitute the same criminal act." Porter, 133 Wn.2d at 181. We review the trial court's determination ofwhat constitutes the same criminal conductfor an abuse ofdiscretion or misapplication ofthe law. State v. 

### Graciano, 176 Wn.2d 531, 537, 295 P.3d 219 (2013). "Underthis standard, 

### when the record supports onlyone conclusion on whethercrimes constitute the 'same criminal conduct,' a sentencing courtabuses its discretion in arriving at a 

### contrary result." Graciano, 176Wn.2d at 537-38. "Butwhere the record 

### adequately supports either conclusion, the matter lies in the court's discretion." Graciano, 176 Wn.2d at 538. A trial court abuses its discretion if it makes a 

### manifestly unreasonable decision based on untenable grounds or for untenable
reasons. State ex rel. Carroll v. Junker, 79 Wn.2d 12, 26, 482 P.2d 775 (1971). 

### A person isguilty offirst degree burglary ifhe orshe enters or remains unlawfully in a building with intent to commit a crime against a person or property therein, and he or she is armed with a deadly weapon or assaults any person 

### inside. RCW 9A.52.020. Aperson commits firstdegree robbery, as chargedNo. 68914-2-1/7


### here, by unlawfully taking property from another person againstthat person's will by the use or threatened use offorce, violence, orfear of injury, and ifhe is 

### armed with a deadly weapon or inflicts bodily injury. RCW 9A.56.190, .200(1 )(a). A person is guilty of first degree assault, as charged here, ifhe or she assaults 

### another and inflicts great bodily harm or assaults anotherwith a deadly weapon likely to produce great bodily harm. RCW 9A.36.011 (a), (c). The trial court did not abuse its discretion in counting the burglary separatelyfrom the assault and the robbery because the crimes did not involve the same victims. Cook was the victim ofthe assault and the robbery. However, both Cook and Radio Shackwere victims ofthe burglary. The burglary was therefore not the same criminal conduct as the assault and the robbery. The trial courtfurthermore did not err in counting the assault and the 

### robbery separatelyfrom each otherbecausethey did not share the same criminal intent. Whethertwo crimes share the same criminal intent depends on "'the 

### extentto which the criminal intent, objectively viewed, changed from one crime to the next. . . . This, inturn, can be measured in part by whether one crime furthered the other.'" State v. Williams. 135 Wn.2d 365, 368, 957 P.2d 216 

### (1998) (alteration in original), quoting State v. Vike, 125 Wn.2d 407, 411, 885 P.2d 824 (1994). Here, Rivera assaulted Cook the first time inorderto secure Cook's compliance to the robbery. Cooktold Rivera that he would not fightback and Rivera was free to take whatever merchandise he wanted. Despite the fact

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that Rivera did not need further force to committhe robbery, he continued to assault Cook. On at least three separate occasions afterthe initial assault, Rivera left Cook alone and then returned to commitfurther violence: hitting Cook 

### again withthe knife, poking a screwdriver into Cook's wounds, and slashing at Cook's head and earwith the knife. As the trial court appropriately found, these 

### assaults were "far inexcess ofwhatwas necessary inorderto committhe burglary and the robbery." Statement ofAdditional Grounds Pursuantto RAP 10.10, Rivera raises several additional grounds for review.Rivera contends that the State committed misconduct by: (1) offering 

### perjured testimony, (2)purposefully misstating his testimonyin closing argument, 

### (3)referring to him as "sickandtwisted," and (4) asserting that hetailored his testimony. To prevail on a claim of prosecutorial misconduct, Rivera must show 

### both improper conduct and prejudicial effect. Statev. Roberts, 142 Wn.2d 471, 533, 14 P.3d 713 (2000). Where, as here, a defendantfailed to object, move for mistrial, orrequest a curativeinstruction, review is appropriate onlyifthe prosecutorial misconduct is "so flagrant and ill intentioned" that no curative instruction could have obviated the prejudice engendered bythe misconduct. State v. Emery, 174Wn.2d 741, 760-61, 278 P.3d 653 (2012). This courtviews 

### a prosecutor's allegedly impropercomments in the context of the total argument,No. 68914-2-1/9



### the issues inthe case, the evidence addressed inthe argument, and thejury instructions given. State v. Dhaliwal, 150Wn.2d 559, 578, 79 P.3d 432 (2003). Underthis standard ofreview, Rivera's claims are without merit. First, Rivera claims that the State failed to correct an inconsistency inthe testimony of Michael Ranetta, a fellow inmate to whom Rivera made incriminating statements. But a review ofthe testimony to which Rivera cites shows that there was no inconsistency. Next, Rivera claims the State intentionally misrepresented facts when the deputy prosecutor in closing argument characterized Rivera's attitude towards 

### the crime as, "I'm going to stop. I'm sorry. Actually, I'm not, slash. I'mgoing to stop. I'mgoing to leave. I'm sorry. Wait. Ilied." Butthe prosecutordid not attribute these statements to Rivera. Rather, the prosecutorwas arguing that 

### Rivera was guilty ofintimidating a witness because he deliberately terrified Cook
so that Cookwould not report the crime to the police. Defense counsel clarified 

### to thejurythatthese were not direct statements made by Rivera. Rivera fails to establish thatthe statements were prejudicial or any prejudice was not cured by defense counsel's clarification. 

### Rivera claims thatthe prosecutorcommitted misconduct by referring to him and his actions as "sick and twisted" during closing argument. While the 

### prosecutor's remarks are not welltaken, there was not a substantial likelihood thatthose remarks affected thejury's verdict, particularly given the fact that

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### defense counsel reiterated the "sick and twisted" language several times to argue that Rivera committed his crimes under duress, not out ofmalice. Rivera's final theory ofmisconduct is thatthe prosecutor improperly crossexamined him as to whether he had tailored his testimony to match the police 

### report and argued that he had "practiced and rehearsed" his story. But a prosecutor is not prohibited "from indicating, via questioning, that a defendant has tailored his or hertestimony to align with witness statements, police reports, 

### and testimonyfrom otherwitnesses at trial." State v. Martin, 171 Wn.2d 521, 533, 252 P.3d 872 (2011). 

### Rivera argues thatthe trial court erred in admitting several photographs that he alleges were unduly prejudicial. Butthe photographs Rivera challenges 

### are not part of the record on review, and thus we cannot considerthis claim of error on direct appeal. State v. McFarland, 127 Wn.2d 322, 335, 899 P.2d 1251 (1995).Rivera contends that the trial court demonstrated bias against him at 

### sentencing by stating that she was "extremely disturbed" by the testimony and that what had happened to Cook was "anabsolute nightmare." To the extent that 

### Riveraargues that the trial court's remarks violated the appearance of fairness doctrine, Rivera must show evidence ofthe trialcourt's actual or potential bias. State v. Post. 118 Wn.2d 596, 619 n.8, 826 P.2d 172, 837 P.2d 599 (1992). These comments do not show bias but ratherwere part ofthe trial court's

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### explanation for why Rivera's crimes warranted the high end ofthe standard
range. 

### Rivera contends that his convictions for first degree assault and first degree robbery violate doublejeopardy because the assault conviction should merge into the robbery conviction. Although there are several methods to determine the existence of a doublejeopardy violation, Rivera argues only that the mergerdoctrine applies, and thus we focus solely on that analysis. Under the merger doctrine, when the degree ofone offense is raised by conduct 

### separately criminalized by the legislature, we presume the legislature intended to punish both offenses through a greater sentence for the greatercrime. State v. Vladovic. 99 Wn.2d 413, 419, 662 P.2d 853 (1983). However, the legislature did not intend thatfirst degree assault merge into first degree robbery. State v. Freeman. 153 Wn.2d 765, 778, 108 P.3d 753 (2005). Consequently, Rivera's convictions do not merge. Finally, Rivera claims that he was entitled to a unanimity instruction with respect to which act ofassaultformed the basis for the assault conviction and which act ofassault elevated the degree ofthe robbery conviction. But here, the State charged two alternative means ofcommitting first degree robbery—that Rivera inflicted bodily injury and that he used a deadly weapon—and thejury was instructed on both means. Where a defendant is charged with committing a crime by alternative means, unanimity is not required as to which alternative

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### jurors rely upon so long as the State presents sufficientevidenceto supporteach alternative. State v. Randhawa. 133 Wn.2d 67, 73-74, 941 P.2d 661 (1997). 

### Rivera does not argue thatthe evidence was insufficient to supporteitherofthe alternative means of committing firstdegree robbery. As a result, the jury instructions were proper. Affirmed. 

# fecke-(C> >
WE CONCUR: 

# A/e.J

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