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IN THE COURTOFAPPEALS OF THE STATE OFWASHINGTON STATE OFWASHINGTON, Respondent,

v. DERRICKA. VALENTINE, Appellant. No. 67778-1-1 DIVISION ONE UNPUBLISHED OPINION

FILED: March 11,2013 Appelwick, J. — Valentine was convicted of second degree assault, fourth degree assault, and felony harassment. We accept the State's concession that Valentine's conviction for fourth degree assault violated the double jeopardy clause. Any error in admitting statements that were the product of custodial interrogation was harmless and the trial court properly calculated his offender score. We remand for the trial courtto vacate his fourth degree assaultconviction and otherwise affirm. FACTS On May 15, 2011, Derrick Valentine and Mary Cason got into a loud argument in their shared apartment. Cason dialed 911 on her cellular phone. Although she did not speak to the operator, she held the phone so that the operator could hear Valentine yelling. Valentine was aware that Cason called 911 and yelled directly atthe operator. Valentine then leftthe apartment and walked to a nearby store.No. 67778-1-1/2


### While Valentine was gone, police officers responded to the 911 call. Cason let the officers into the hallway and told them that the previous night Valentine hit her on the head and pushed her, leaving marks on herface and arm. Whilethey weretalking, Valentine walked into the building. Officer Derek Anderson spoke with Valentine and arrested him. After Valentine waived his right to silence, he stated that he and Cason had 

### pushed each otheron May 14 and acknowledged thathe pushed a cookiejaroff a table and broke it. He said that he and Cason had a violent relationship and that the abuse

was mutual. Valentine also expressed his belief that denial was futile, because in Washington, "theybelievewhat a woman says anyway." Based on Valentine's acts on May 14, the State chargedValentinewith assault in the second degree, assault in the fourth degree, and felony harassment. It added 

### aggravating factors to the assaultinthe second degree andfelony harassmentcharges, alleging thatthey were domestic violence offenses and thatthe crimes were part of an ongoing pattern of psychological, physical or sexual abuse manifested by multiple incidents overa prolonged period oftime. 

### According to Cason, Valentinewas angrywith her on May 14, because shewent to brunch with her daughter instead of helping Valentine with his resume. Valentine
was not home when Cason came home from brunch. But, soon after she got backto 

### the apartment, Valentine called her three times and swore at her for not helping him. Based on past experiences Cason expected that Valentine would hit her when he returned. She put some clothes in her car so she could quickly leave ifnecessary. Then, she went back inside and waited for Valentine to arrive. She was sitting downNo. 67778-1-1/3 

### crocheting when Valentine came home. He was immediately angry at Cason for not helping him. He shouted and cursed, and Cason could tell he had been drinking. Valentine stood overCason, swore at her, and used both hands to hit her on both sides 

### ofher head. The strike caused Cason's glasses to cut into hereye. Cason got up to 

### leave, but Valentine stood between her and the door. He pushed a glass cookie jar ontothefloorand itbroke. Then, Valentine grabbed Cason bythethroatto preventher from leaving. He held her hard enough so that Cason could not breathe. Her throat
was sorefor several days after. Valentinetold herthat ifshe called the police, hewould kill her. He released herand shefell on the broken cookiejar. Cason got up and ran to hercar. Pictures admitted attrial were described as showing the mark on Cason's face from where Valentine hit her and an injury to her arm sustained when she fell on the broken cookiejar. Cason also testified to a pattern of assault and threats during her 17 month romantic relationship with Valentine. He first started hitting her a few months into their relationship, and the violence got worse when they moved intogether inAugust 2010. When prompted to estimate how many times Valentine had assaulted her, she said 

### there were too many times to count. But, she described several events that stuckwith her. When Valentine could notfind his driver's license, he told Cason he was going to cut herthroat with a box cutter. He eventually found the license and apologized. But, he showed Cason the box cutterto establish that the threat was real. When Cason did 

### not want to make a grocery list, Valentine slapped her and left her with a black eye. When Cason purchased cookies for Valentine, he beat her because they were tooNo. 67778-1-1/4 

### expensive. Anothertime, Valentine thought a man in a carwas there to meet Cason. 

### He toldCason he was going to bash her head inandthrow her into a pond. On several 

### occasions, Valentine choked Cason, and at least twice he choked her hard enough so that she lost her breath. Cason testified thatValentine did notmake idle threats. One time, hetold Cason 

### that he was going to beat her up in two days, and two days later he beat her up. On anotheroccasion, he told her he was going to beat her up inthree days, and again he followed throughthree days later. Valentine also told Cason that he tried to killhis ex-wife, because she cheated on 

### him. He revealed that he choked her untilshe turned blue, but stopped because they had childrentogetherand he did notwantthem to grow up without anyparents. Thejury found Valentine guilty on allthree counts and answered "yes" on special verdictforms foreach ofthe aggravating factors. DISCUSSION Valentine argues that he was convicted twice for the same offense, that Cason testified about statements he made during a custodial interrogation before he was arrested, and that his offender score was miscalculated, because it did not treat his assault and harassment charges as the same criminal conduct. In a statement of 

### additional grounds, Valentine argues thatthe trial court erred by admitting evidence of previous incidents of domestic violence against Cason and by not bifurcating the aggravatorofpattern ofdomesticviolencefrom the trial.No. 67778-1-1/5

I. Double Jeopardy 

### Valentine argues that his conviction for both second degree assault and fourth 

### degree assault violates the double jeopardy clause. He claims that fourth degree assault is a lesser included offense of second degree assault and that the offenses in this case occurred during a single, uninterrupted episode. The State concedes error. We accept the State's concession and remand for the trial court to vacate the fourth 

### degree assault conviction and strike the reference to the fourth degree assault charge fromthefelonyjudgmentand sentence.

II. Custodial Statements Priorto trial, Valentine made a CrR 3.5 motion to suppress statements he made before he was arrested and advised ofhis Miranda rights. Mirandav. Arizona, 384 U.S. 436, 479, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). Miranda warnings protect a 

### suspect's constitutional right not to make incriminating statements while inthe coercive environment of police custody. State v. Heritage. 152 Wn.2d 210, 214, 95 P.3d 345 

### (2004). They must be given whenever a suspect is subjected to a custodial interrogation by a State agent. ]o\ Acustodial interrogation occurs when a reasonable person in a suspect's position would have felt that his or her freedom was curtailed to thedegree associatedwith a formal arrest. Jd at218. 

### Thetrialcourt held a hearing and entered written findings of fact and conclusions of law. It found that while Officer Anderson spoke with Cason, Valentine walked 

### through a door at the opposite end of the hallway. Officer Anderson approached Valentine and asked what happened. Valentine said that he had not put his hands on 

### Cason that day, but that they had been in a fight the day before. Valentine indicated,No. 67778-1-1/6 "[Y]oumightas well arrestmethen." OfficerAnderson arrested Valentine and read him 

### his rights. The trial court ruled that only statements made afterValentine was arrested


### wereadmissible. Italso incorporated its oral findings and conclusions. Atthe hearing, thetrialcourtexplained: 

### [l]t's clear to me that at the time that the defendant happened upon the arresting officer and the alleged victim that he was a suspect, the only suspectin a crime, thatthe officerhad probable cause to arrest him. And that hewas, while there was some differentperspective expressed bythe officer, it's clear to the court that he was not free to leave at that time. Therefore, I'm going to hold that the statements that the defense is 

### objecting to, words to the effect, why don't you just arrest me, is not admissible under Rule 3.5. But, the statements that were given to both the officer, the arresting officer and the detective after each of them separatelyMirandized himwere knowing, intelligentand voluntary. After defense counsel requested further clarification, the trial court said, "All the statements that were given to Officer Anderson pre-Miranda are not admissible under [CrR] 3.5." Nevertheless, at trial Cason described what happened when Valentine was arrested: As soon as he camethrough the door he said, oh, you come to arrestme. He puthis hands onthe wall, turned to puthis hands onthe back. She confirmed that he made a gesture of, "arrest me." Defense counsel did not object 

### to Cason's testimony. The Statedid notquestion any otherwitnesses aboutValentine's prearreststatements and did not mention Cason's statements in itsclosing argument. Valentine argues that Cason's testimony violated his right not to incriminate himself, because it revealed statements he made during a custodial interrogation. 

### Proceeding on the assumption that there was an error ofconstitutional magnitude, weNo. 67778-1-1/7 

### first consider whether Valentine properly preserved the issue for appeal.1 When evidence is excluded by a pretrial order, a party should object when the evidence is used at trial inorderto preservethe objection. Statev.Weber, 159 Wn.2d 252, 271-72, 

### 149 P.3d 646 (2006). The purpose of the rule is to givethetrial court an opportunity to determine ifthe challenged evidence is covered by a pretrial ruling and give a curative instruction ifappropriate. Jd. at 272. Otherwise, a party "'could simply lie back, not [allow] the trial court to avoid the potential prejudice, gamble on the verdict, and then seek a new trial on appeal.'" Id. at 271-72 (quoting State v. Sullivan, 69 Wn. App. 167, 172, 847 P.2d 953 (1993)). Valentine argues, without citation, that he had no duty to object to properly preserve the issue for appeal. The practical consequence of this dispute is that prejudice is presumed when a constitutional error is properly preserved. State v. Stephens. 93 Wn.2d 186, 190-91, 607 P.2d 304 (1980). In contrast, we willonly review
an error raised for the first time on appeal if it is manifest and truly of constitutional dimension. State v. Kirkman, 159 Wn.2d 918, 926, 155 P.3d 125 (2007). To establish that the error is manifest, the appellant must make a showing of actual prejudice by 

### 1 The State claims that Cason's statements were neither covered by the trial court's order nor the result of a custodial interrogation. It attempts to distinguish 

### Cason's testimony from the suppressed evidence on two bases. First, that Cason reported Valentine said, "[0]h, you cometo arrest me," while OfficerAnderson reported Valentine said, "[Y]ou might as well arrest me." And, second, that Cason testified Valentine made the statement as soon as he saw the officers, and Officer Anderson said they had a short discussion before Valentine made the statement. The State has not made a compelling showing that Cason testified about different statements, as opposed to merely another witness's account of the same events. The trial court 

### entered findings regarding what happened when Valentine came into the building, and the State has not challenged those findings. Based on those undisputed findings, the trial court ruled that al| the pre-Miranda statements to Officer Anderson were inadmissible. Thatruling encompassed Cason's testimony.No. 67778-1-1/8 

### identifying how the alleged constitutional erroractually affected his or her rights at trial. Jd. at 926-27. Here, Valentine did not objectwhen the challenged testimony was given and he did not properly preserve the alleged error. Valentine must establish thatthere


### was a manifest constitutional error. Even assuming the evidence affected his Fifth Amendment right against self-incrimination, it is readily apparent that the prejudice, if any, was minimal and the errorwas harmless. A constitutional error is harmless ifthe reviewing court is convinced beyond a reasonable doubt that the error did not affect the verdict. State v. Monday. 171 Wn.2d 667, 680, 257 P.3d 551 (2011). Valentine argues that the error was not harmless, because the State's case came down to a credibility determination, and Cason's testimony "implied [Valentine] thought the evidence was sufficientto arrest him, to find him guilty of the crimes." That, however, is not the necessary implication of Cason's testimony. Valentine acknowledged that he pushed Cason and damaged her property. Valentine knew that Cason called 911, and he yelled directly at the 911 operator over 

### the phone. After waiving his right to remain silent, he stated thathedistrusts police and thinks that police always believe the woman in domestic disputes. Inthat context, it is 

### neither surprising nor prejudicial that when he walked inside and saw police officers Valentine remarked, "[0]h, you come to arrest me." That statement is consistent with 

### his beliefthat he was going to be arrested. It did not demonstrate consciousness of guilt. 

### Although Valentine correctly argues that Cason's credibilitywas importantto the State's case, Cason's testimony was not the sole evidence of Valentine's guilt. As mentioned, Valentine acknowledged that he pushed Cason and broke her cookiejar.

8No. 67778-1-1/9 

### The jury heard him screaming at Cason and a 911 operator in the heat of an argument. Thejury also saw pictures ofCason's injuries that were consistentwith her version of 

### events. All of that evidencebolstered Cason'stestimony. And, Cason only briefly mentioned Valentine's pre-Miranda statements. Those statementswere not reiterated byanyotherwitnesses andwere not used during closing argument. Further, defense counsel's failure to object strongly suggests that Cason's testimony did not appear critically prejudicial to Valentine in the context of the trial. 

### Statev. Swan. 114 Wn.2d 613, 661, 790 P.2d 610 (1990). Any errorwas insignificantin theoverall contextofthecase, and it isharmless beyond a reasonabledoubt.

III. Offender Score Calculation 

### Atsentencing, the trial court counted the felony harassment and second degree assault convictions separately in calculating Valentine's offender score. Valentine argues on appeal that the crimes are the same criminal conduct and should not have been counted separately. Valentine did not raisethis argumentattrial, and accordingly the trial court did not make any findings of fact. Thus, there is a threshold issue of whetherValentine is entitledto makethis argumentforthefirsttime on appeal. Adefendant is entitled to challenge the trial court's offender score calculation for the first time on appeal when the alleged error is a legal error. State v. McCorkle. 137 Wn.2d 490, 495-96, 973 P.2d 461 (1999). For instance, a defendant does not need to objectat sentencing to challengethe State'sfailure to introduce anyevidenceto support the classification of out-of-state convictions. State v. Ford, 137 Wn.2d 472, 475, 484- 85, 973 P.2d 452 (1999). But, a defendantwaives any challenge to the offender score 

### calculation when the alleged error involves a matter of trial courtdiscretion. Inre Pers.No. 67778-1-1/10


### Restraintof Goodwin. 146 Wn.2d 861, 874, 50 P.3d 618 (2002); Inre Pers. Restraintof Shale. 160 Wn.2d 489, 494, 158 P.3d 588 (2007). Application ofthe same criminal conductstatute isjustsuch an issue. Itinvolvesfactual determinations andthe exercise 

### of discretion. State v. Nitsch. 100 Wn. App. 512, 523, 997 P.2d 1000 (2000). As we explained in Nitsch, if waiver were not possible it could work to the defendant's advantage not to raisethe samecriminal conductissueatsentencing: If a defendant can wait to raise the same criminal conduct issue on 

### appeal, he can try one argument with the trial court while reserving the other and, ifthe first is unsuccessful, he can ask the appellate court to remand for consideration ofthe second (factually inconsistent) argument. Lapses of memory or changes in prosecutorial or judicial personnel may then work to his advantage, and inany event, finality is postponed. From the pointof view of a defendantwith nothing to lose, this is a windfall. id at524. Valentine waived the right to make his same criminal conduct argument. Even if he was entitled to raise the issue on appeal, the trial court's determination of same criminal conduct is reviewed for an abuse ofdiscretion. State v. Wilson, 136Wn. App. 596,613, 150P.3d 144(2007). It is clearthatthetrial courtdid notabuse itsdiscretion. Crimes are considered the same criminal conduct if they require the same criminal intent, are committed atthe same time and place, and involve the same victim. RCW 9.94A.589(1)(a). Here, there is no dispute thatthe crimes were committed atthe
same time and place and involve the same victim. The only issue is whether the offenses required the same criminal intent. Whether multiple offenses require the same criminal intent is measured by determining whetherthe criminal intent, viewed objectively, changed from one crime to another. State v. Dunawav. 109Wn.2d 207, 215, 743 P.2d 1237, 749 P.2d 160 (1987).

10No. 67778-1-1/11

Intent is not the particular mens rea element of the crime, but rather the offender's 

### objective criminal purpose incommitting the crime. State v. Adame, 56 Wn. App. 803, 

### 811, 785 P.2d 1144 (1990). Intent may also be determined byexamining whetherone crimefurthered the otherorwhetherboth crimeswere part of a recognizable scheme or plan. Statev. King, 113Wn. App. 243, 295, 54 P.3d 1218 (2002). 

### Valentine argues that the felony harassment and second degree assault occurred simultaneously and thus he had no time or opportunity to pause, reflect, and form a new criminal intent. Indeed, inState v. Tili. the Supreme Courtdetermined that the defendant's offenses were so continuous and uninterrupted, and occurred within such a short time frame, that he had the same criminal intent for each offense. 139 Wn.2d 107, 124, 985 P.2d 365 (1999). But, the separate offenses in that case were three counts of rape for penetrating the victim three times within a two minute timeframe. ]o\ at 111-12. The offenses were part of an uninterrupted sequence in which the defendant repeatedly committed the same crime. This case has a similarly short timeframe, because Valentine grabbed Cason by the throat, pushed her to the ground, and threatened to kill her before releasing her. But, unlike inTiN, the separate offenses in this case are different crimes with different criminal intents. Valentine also claims that the assault furthered the felony harassment, because the assault must have contributed to Cason's fearthatValentine would actually kill her. 

### It is certainly true that in some cases assault could be committed in furtherance of felony harassment, and thetrialcourtwould be compelled to findthatthe offenses were the same criminal conduct. But, this is not such a case. According to Cason's 

### testimony, atthe time Valentine strangled herand threatened to kill her, he had already

11No. 67778-1-1/12


### struck and pushed her. Cason testified that he grabbed her because in past altercations she had run away and he wanted her to stay. Indeed, Valentine had already legitimized the threat by assaulting her that night and on multiple other occasions and demonstrating that he followed through with his threats. The past incidents established the verity of Cason's statement that she knew Valentine "didn't 

### make idlethreats." Thus, the more reasonable view is thatValentine's objective intent inassaulting Casonwas eitherto harm her orstop her from leaving, not to legitimize the threat. Rather, he threatened her to prevent her from calling the police. As noted in Wilson, the fact thatassault and harassment have different criminal intents by definition supports a conclusion that they are not the same criminal conduct. 136 Wn. App. at 615. At a minimum, this second possible interpretation prevents a finding that the trial court could only have properly reached the conclusion that this was the same criminal conduct. The trial court did not abuse its discretion. Valentine argues in the alternative that his counsel was ineffective for failing to raise the issue ofsame criminal conduct. To establish ineffective assistance ofcounsel,
a defendant must that the attorney's performance fell below an objective standard of reasonableness and that the deficiency prejudiced the defendant. Strickland v. Washington. 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). Prejudice exists where there is a reasonable probability that, but for counsel's performance, the resultwould have been different. State v. Thomas. 109 Wn.2d 222, 226, 743 P.2d 816 

### (1987). Prejudicedoes not require a showingthatcounsel's actions more likelythan not altered the outcome, but the likelihood of a different result must be substantial, notjust

12No. 67778-1-1/13


### conceivable. Harrington v. Richter. U.S. , 131 S. Ct. 770, 792, 178 L. Ed. 2d 624(2011). 

### Valentine cites State v. Saunders. 120 Wn. App. 800, 825, 86 P.3d 232 (2004), 

### for the proposition that, "failure to argue same criminal conduct at sentencing amounts
to ineffective assistance of counsel ifthe evidence is sufficient to allow a fact-finder to 

### findthat multipleoffenses are the same criminalconduct." To the contrary, a claim for ineffective assistance is not satisfied merely because the facts in the record would support a finding either way on a discretionary issue. Valentine's proffered interpretation creates a perverse incentiveto not raise discretionary issues withthe trial court and relies too heavily on the ultimate outcome of Saunders instead of the wellestablished requirements ofdeficientrepresentation and prejudice. The Saunders court determined that the defendant received ineffective assistance of counsel, because defense counsel failed to argue that his convictions for rape and kidnapping related to the same criminal conduct. Jd. at 825. But, in determining that the failure was prejudicial itexplained that case law provided "strong support" for such an argument. Id. at 825. Incontrast, no line ofcase law suggests similar "strong support" for such an argumentwith respect to the charged offenses here. Valentine has not articulated how counsel provided deficient representation merely by failing to pursue a discretionary ruling. Likewise, he has not established a reasonable probability that the trial court would have agreed with his position on appeal thatthe assault and harassmentcharges

were partofthe same criminal conduct.

13No. 67778-1-1/14

IV. Statement ofAdditional Grounds 

### Valentine makes two additional arguments in a statement ofadditional grounds. 

### He claims thatthe trialcourtfailed to make required findings before admitting evidence ofprevious incidents ofdomestic abuse pursuantto ER 404(b), and erred by refusing to bifurcatethe aggravatingfactorofpattern ofdomesticviolencefrom trial. Although ER 404(b) does not on its face impose any burden on the trial courtto enterfindings, appellate courts have consistently imposed such a requirement. The trial court must identify the purpose for which the evidence is sought to be introduced, determine whether the evidence is relevant to an essential element of the crime charged, and determine whether the probative value ofthe evidence is outweighed by its prejudicial effect. Statev. Dennison. 115 Wn.2d 609, 628, 801 P.2d 193 (1990). In his trial memorandum, Valentine requested that the trial court hold a preliminary hearing ifthe State attempted to introduce evidence of prior misconduct. The State's trial brief is not in the record, but it appears that the State argued that Valentine's previous incidents of domestic abuse were admissible to establish the elements of felony harassment and rebut an anticipated self-defense theory. In a 

### pretrial hearing, thetrialcourtindicatedthatthe evidence was likely to come inunless it determined that the evidence was more prejudicial than probative. It indicated that it 

### needed to look atthejury instructions to see the elements for felony harassmentto be
sure. Before trial began, the trial court stated, "I received the instruction on Felony 

### Harassment. This confirms my inclination Igave to you yesterdaythatthe [ER]404(b) evidence is admissible."

14No. 67778-1-1/15 

### Thus, the trial court did notenterexpress findings before admitting evidence of priordomestic abuse. The failure to enter such findings, however, does not render 

### otherwise admissible evidence inadmissible. State v. Gogolin, 45 Wn.App. 640, 645, 727 P.2d 683 (1986). "[Wjhere, from the record as a whole, the reviewing court can decide issues ofadmissibility without the aid of an articulated balancing process on the record, the court should do so." Jd. Forthat reason, a failure to articulate the basis for 

### admission does not necessarily require reversal. State v. Carleton. 82 Wn. App. 680, 686, 919 P.2d 128 (1996). Rather, any error is harmless unless the defendant establishes that, within reasonable probabilities, the outcome of the trial would have been different ifthe errorhad not occurred. ]o\ The error is harmless when the record is sufficientto showthat, ifthe trial court had conducted the properinquiry, it still would have admitted the evidence. ]d Here, any error was harmless. In its pretrial hearing, the trial court articulated that itneeded to find thatthe evidence was relevant and thatthe probative value ofthe evidence was not outweighed by its prejudicial effect. Its subsequent ruling suggests thatthe trial court considered the elements and found thatthey were met. Further, it is apparentfrom the record thatthetrial courtreached the correctconclusion. Reasonable fear is an essential element of harassment. RCW 9A.46.020(1)(b). Thus, evidence of a history ofdomestic violence is admissible to establish the victim's state ofmind. State v. Johnson. 172 Wn. App. 112, 120-24, 289 P.3d 662 (2012). It is also admissible to prove the aggravating factors concerning domestic violence. Cason's testimonyrevealed notonly a history ofdomestic violence, butalso a pattern of threats that were then carried out. That goes directly to whether Cason had reason to

15No. 67778-1-1/16 

### believe Valentine's threat. Further, at the pretrial hearing Valentine did not argue that the prior incidents did not happen. In fact, Cason's testimony that Valentine had strangled hisex-wife was corroborated by the fact that he was convicted ofassault by strangulation as a result ofthat incident. ER 404(b) evidence is inherentlyprejudicial. 

### But, inthiscasethe evidence was highlyprobative, and was notundulyprejudicial. The trial court did notabuse itsdiscretion in admitting the evidence. Valentine also argues that the trial court should have bifurcated consideration of 

### the aggravating factors from trial. The basisfor his argument is that ifevidence of prior domestic abuse was not admissible to prove the charged crime, then it may have been appropriate to separate the aggravating factors to avoid undue prejudice. But, bifurcation is inappropriate when the evidence supporting the aggravating factors is otherwise admissible at trial. RCW 9.94A.537(4). Here, the evidence was relevant to 

### thefelony harassmentchargeand bifurcation was unnecessary. We remand for the trial court to vacate Valentine's fourth degree assault conviction, and otherwise affirm.

WE CONCUR: 

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