IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

DIVISION II

STATE OF WASHINGTON, No. 47916-8-II

Respondent,

v.

KENNETH ALFRED LINVILLE, JR., PART PUBLISHED OPINION

Appellant.

WORSWICK, J. — Kenneth Linville Jr. appeals his convictions for leading organized 

crime, burglary, trafficking in stolen property, theft, possession of stolen property, unlawful 

firearm possession, and possession of controlled substances. Linville was convicted of 137

crimes.

In the published portion of this opinion, we hold that Linville’s counsel rendered 

ineffective assistance by failing to object to the improper joinder of charges, and, consequently,

we reverse Linville’s convictions and remand for separate trials. In the unpublished portion of 

this opinion, we further hold that the State produced sufficient evidence to support the first 

degree burglary convictions. We do not address Linville’s other arguments.1 

 

1 Linville additionally argues that (1) a conviction based on the first alternative means of 

trafficking in stolen property cannot rest on accomplice liability, (2) insufficient evidence 

supported the firearm sentencing enhancements, (3) his right to a unanimous jury verdict was 

violated because the jury was instructed that it need not be unanimous as to the means by which 

it found him guilty of trafficking in stolen property, (4) his multiple convictions for trafficking in 

stolen property violated the prohibition against double jeopardy, and (5) the trial court denied his 

right to due process by permitting the State to amend the charging information after the State 

rested its case. 

Filed

Washington State

Court of Appeals

Division Two

June 27, 2017
No. 47916-8-II

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FACTS

Following an increase in residential burglaries in Thurston County, law enforcement 

officers noticed similarities among several burglaries. Officers ultimately recovered numerous 

items taken during the burglaries from Linville’s home. 

The State charged Linville with 1 count of leading organized crime, 35 counts of 

residential burglary, 1 count of attempted residential burglary, 4 counts of first degree burglary, 3 

counts of second degree burglary, 39 counts of trafficking in stolen property, 17 counts of first 

degree theft, 18 counts of second degree theft, 1 count of attempted second degree theft, 3 counts 

of third degree theft, 5 counts of theft of a firearm, 5 counts of identity theft, 4 counts of 

unlawful possession of a firearm, 1 count of possession of stolen property, and 1 count of 

possession of a controlled substance, for a total of 138 charges with numerous deadly weapon 

sentencing enhancements.

2,3

 The State alleged that Linville was armed with a firearm during the 

commission of the four first degree burglaries.

4

 At no point did Linville argue that joinder of any

offenses was improper under RCW 9A.82.085.

During the jury trial, the State presented testimony from numerous co-defendants who 

identified Linville as the instigator and leader of the burglary scheme. The co-defendants’ 

 

2 On all charges except leading organized crime, Linville was charged either as a principal or as 

an accomplice. Linville never objected to being charged as a principal or as an accomplice. 

3 The deadly weapon sentencing enhancements were based on Linville’s use of a pry bar during 

the burglaries. 

4 The four firearm sentencing enhancements were based on firearms Linville stole during the first 

degree burglaries. 
No. 47916-8-II

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testimony was corroborated by law enforcement officers and victims who described the common 

characteristics among the burglaries and identified stolen goods recovered from the homes of 

Linville and his co-defendants.5

The jury found Linville guilty of 137 offenses,

6

and he was sentenced to 914 months in 

prison, which included 240 months for four firearm sentencing enhancements. Linville appeals.

ANALYSIS

Linville argues that his counsel rendered ineffective assistance by failing to move for 

severance of offenses that were not “part of the pattern of criminal profiteering activity” from the 

charge of leading organized crime under RCW 9A.82.085.

7,8

 Br. of Appellant 17. We agree.

The Sixth Amendment guarantees the effective assistance of counsel in criminal 

proceedings. To show ineffective assistance of counsel, a defendant must show that (1) defense 

 

5 Specifically, witnesses testified regarding four burglaries during which Linville and his 

accomplices stole firearms. 

6 The jury found Linville not guilty of possession of a controlled substance and found that the 

State failed to prove the deadly weapon enhancements based on Linville’s use of the pry bar. 

7 Linville also argues that this court should review the improper joinder of these offenses 

independently of the ineffective assistance of counsel context because “RCW 9A.82.085 

represents a legislative conclusion that a joint trial for leading organized crime and offenses 

which do not constitute a part of the pattern of criminal profiteering activity is manifestly 

unfair,” and “[a] manifestly unfair trial deprives a defendant of due process in violation of the 

Fourteenth Amendment.” Br. of Appellant 17 (citing State v. Davenport, 100 Wn.2d 757, 762, 

675 P.2d 1213 (1984)). However, Linville fails to show that the issue affects a constitutional 

right, thus we address whether the alleged improper joinder is reversible error only in the context 

of ineffective assistance of counsel.

8 Linville also argues that the State was required to specifically designate which offenses were 

“part of the pattern of criminal profiteering activity” in the charging information in order to join 

them to a trial for leading organized crime and that his counsel rendered deficient performance 

for failing to object to the information. Br. of Appellant 10, 17. Because we otherwise reverse 

and remand we do not address this argument. 
No. 47916-8-II

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counsel’s conduct was deficient, and (2) the deficient performance resulted in prejudice. State v. 

Reichenbach, 153 Wn.2d 126, 130, 101 P.3d 80 (2004). To show deficient performance, 

Linville must show that defense counsel’s performance fell below an objective standard of 

reasonableness. Reichenbach, 153 Wn.2d at 130. To show prejudice, Linville must show a 

reasonable possibility that, but for counsel’s purportedly deficient conduct, the outcome of the 

proceeding would have differed. Reichenbach, 153 Wn.2d at 130. We review ineffective 

assistance of counsel claims de novo. State v. Sutherby, 165 Wn.2d 870, 883, 204 P.3d 916 

(2009).

1. Counsel Rendered Deficient Performance

Linville argues that the plain language of RCW 9A.82.085 prohibits the joinder of crimes 

not “alleged to be part of the pattern of criminal profiteering activity” to a prosecution for 

leading organized crime, and therefore, defense counsel rendered deficient performance by not 

objecting to the joinder of charges not included in the definition of “criminal profiteering.” Br. 

of Appellant 17. We agree. 

We review the meaning of a statute de novo. State v. Wooten, 178 Wn.2d 890, 895, 312 

P.3d 41 (2013). We employ statutory interpretation to determine and give effect to the 

legislature's intent. State v. Evans, 177 Wn.2d 186, 192, 298 P.3d 724 (2013). To determine 

legislative intent, we first look to the plain language of the statute considering the text of the 

provision in question, the context of the statute, and the statutory scheme as a whole. Evans, 177 

Wn.2d at 192. 
No. 47916-8-II

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RCW 9A.82.085 states, in relevant part:

In a criminal prosecution alleging a violation of [leading organized crime], the state 

is barred from joining any offense other than the offenses alleged to be part of the 

pattern of criminal profiteering activity. 

RCW 9A.82.010(12) defines “pattern of criminal profiteering activity” as “engaging in at least 

three acts of criminal profiteering.”

RCW 9A.82.010(4) defines “criminal profiteering” as:

any act, including any anticipatory or completed offense, committed for financial 

gain, that is chargeable or indictable under the laws of the state in which the act 

occurred and, if the act occurred in a state other than this state, would be chargeable 

or indictable under the laws of this state had the act occurred in this state and 

punishable as a felony and by imprisonment for more than one year, regardless of 

whether the act is charged or indicted, as any of the following: . . . .

RCW 9A.82.010(4) then lists 46 crimes and their defining statutes. First and second 

degree theft, trafficking in stolen property, leading organized crime, and identity theft are 

included in the list. See RCW 9A.82.010(4)(e), (r), (s), and (kk). However, residential burglary, 

first degree burglary, second degree burglary, attempted residential burglary, theft of a firearm, 

third degree theft, unlawful possession of a firearm, and possession of stolen property are not 

included in the list. See RCW 9A.82.010(4).

Linville argues that because these latter offenses are not listed in RCW 9A.82.010(4), 

RCW 9A.82.085 prohibits the State from joining them in its prosecution against him for leading 

organized crime. The State responds that the list applies only to acts which occurred outside of 

the state of Washington. 

The State contends that the statute should be read as: 

Criminal Profiteering means

(1) any act, including any anticipatory or completed offense, committed for 

financial gain, 
No. 47916-8-II

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(2) that is chargeable or indictable under the laws of the state in which the act 

occurred and,

(3) if the act occurred in a state other than this state, would be chargeable or 

indictable under the laws of this state had the act occurred in this state and 

punishable as a felony and by imprisonment for more than one year, regardless of 

whether the act is charged or indicted, as any of the following: [list of specific 

felonies]. . . .

Br. of Resp’t 14-15.

Linville contends that the statute should be read as:

Criminal Profiteering means

(1) any act, including any anticipatory or completed offense, committed for 

financial gain,

(2) that is chargeable or indictable under the laws of the state in which the act 

occurred

and, if the act occurred in a state other than this state, would be chargeable 

or indictable under the laws of this state had the act occurred in this state 

and punishable as a felony and by imprisonment for more than one year, 

(3) regardless of whether the act is charged or indicted,

(4) as any of the following: [list of specific felonies]. . . .

Reply Br. of Appellant 2.

Washington courts have agreed with Linville’s interpretation of RCW 9A.82.010(4), 

stating, “‘Criminal profiteering’ is defined as commission of specific enumerated felonies for 

financial gain.” Trujillo v. Nw Tr. Servs., Inc., 183 Wn.2d 820, 837, 355 P.3d 1100 (2015) 

(emphasis added) (citing RCW 9A.82.0101(4)). And, “‘Criminal profiteering’ is any act 

committed for financial gain that is chargeable as one of the predicate felonies enumerated in 

RCW 9A.82.010(4).” State v. Munson, 120 Wn. App. 103, 106, 83 P.3d 1057 (2004) (emphasis 

added). 

We note that the State’s interpretation of RCW 9A.82.010(4) on appeal conflicts with its 

position at trial. During its closing argument, the State explained “criminal profiteering” to the 

jury:
No. 47916-8-II

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You get further information in terms of criminal profiteering because it’s 

only specific types of crimes, right, that qualify for criminal profiteering. We have 

theft in the first degree charged multiple times here, theft in the second degree 

charged multiple times here, trafficking in stolen property in the first degree 

charged multiple times here, and then identity theft in the second degree, also 

charged multiple times, and you’re well in excess of three for each of those. And 

it has to be committed for financial gain, whether by an accomplice or the principal, 

and it includes any attempted or completed commission of those offenses.

30 Verbatim Report of Proceedings (VRP) at 5405-06. At trial, the State clearly understood 

“criminal profiteering” to mean only those crimes explicitly listed in RCW 9A.82.010(4). 

We hold that a plain reading of RCW 9A.82.085 and 9A.82.010(4) make it clear that the 

State was statutorily barred from joining charges of residential burglary, first degree burglary, 

second degree burglary, attempted residential burglary, theft of a firearm, third degree theft, 

unlawful possession of a firearm, and possession of stolen property to Linville’s prosecution for 

leading organized crime. 

The unreasonable failure to research and apply relevant statutes without any tactical 

purpose constitutes deficient performance. In re Pers. Restraint of Yung-Cheng Tsai, 183 Wn.2d 

91, 102, 351 P.3d 138 (2015). Here, defense counsel’s failure to object to the State’s improper 

joinder of charges based on RCW 9A.82.085 and 9A.82.010(4) was unreasonable and constitutes 

deficient performance.

2. Counsel’s Deficient Performance Resulted in Prejudice

To succeed on his claim of ineffective assistance of counsel, Linville must also show that 

but for his counsel’s deficient performance the outcome of the trial would have differed, and 

therefore the deficient performance was prejudicial. Reichenbach, 153 Wn.2d at 130. He meets 

this burden. 
No. 47916-8-II

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We review this issue differently than the related issue of discretionary joinder or 

severance pursuant to CrR 4.4(b). Under CrR 4.4(b), a trial court must grant a motion to sever 

offenses if it determines that “severance will promote a fair determination of the defendant’s 

guilt or innocence of each offense.” A defendant seeking such a severance bears the burden of 

demonstrating that a trial involving all counts would be so manifestly prejudicial as to outweigh 

the concern for judicial economy. State v. Huynh, 175 Wn. App. 896, 908, 307 P.3d 788 (2013). 

Appellate courts review a trial court’s denial of a motion to sever under CrR 4.4(b) for manifest 

abuse of discretion. 

In contrast, RCW 9A.82.085 leaves no room for the trial court’s discretion. The State is 

barred from joining offenses other than those alleged to be part of the criminal profiteering 

activity in a prosecution for leading organized crime. As a result, severance of the charges here 

was mandatory, and severance would have been granted had Linville’s counsel brought RCW 

9A.82.085 to the trial court’s attention. 

The State argues that because it had sufficient evidence against Linville to support all of 

the convictions, Linville would have eventually been convicted of all charges. However, our

focus in determining whether counsel’s deficient performance was prejudicial is on the 

proceeding at hand; we do not speculate on the potential results of a hypothetical future 

proceeding. Reichenbach, 153 Wn.2d at 130. 

When assessing whether counsel’s deficient performance was prejudicial, we ask whether 

but for counsel’s purportedly deficient conduct would the outcome of this trial have differed. 

Reichenbach, 153 Wn.2d at 130. Because of defense counsel’s failure to object, Linville was 

improperly tried for 138 total charges and convicted of 137 offenses. Had counsel properly 
No. 47916-8-II

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objected to the joinder, 56 of the charges, including all of the burglary charges, would have been 

severed, the trial would not have included convictions for those 56 improperly joined charges, 

and the outcome of this trial would have been different. See State v. Jones, 183 Wn.2d 327, 341, 

352 P.3d 776 (2015). Moreover, each of the four firearm enhancements, which resulted in a 

mandatory minimum sentence of 240 months, were associated with the four counts of first 

degree burglary, which would not have been considered but for defense counsel’s deficient 

performance. 

The improper joinder had additional prejudicial consequences. For example, by 

improperly joining four charges of unlawful possession of a firearm, the State was permitted to 

introduce evidence of Linville’s prior felony for possession of a controlled substance without a 

prescription. This prior conviction evidence was highly prejudicial given that the State’s theory 

was that Linville’s crime ring was motivated by drugs. See State v. Acosta, 123 Wn. App. 424, 

438, 98 P.3d 503 (2004). Also, the State relied heavily on the burglaries as evidence of 

Linville’s guilt for leading organized crime. A jury separately considering the burglary charges 

would not necessarily have heard testimony of Linville’s accomplices accusing him of 

orchestrating a broad scheme. 

The State contends that this evidence would have been cross-admissible even if the 

charges were tried separately. But to admit such evidence the State would bear the burden of 

proving that the probative value of the evidence would outweigh the prejudice. See ER 404, 609. 

Without any such findings on the record, we have no way to know what would be found 

admissible or inadmissible in some hypothetical trial. Ultimately, the State’s argument requires 

us to make too many assumptions.
No. 47916-8-II

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Consequently, we hold that Linville’s defense counsel rendered ineffective assistance of 

counsel by failing to object to the joinder of offenses in violation of RCW 9A.82.085. We 

reverse Linville’s convictions and remand for separate trials. 

A majority of the panel having determined that only the foregoing portion of this opinion 

will be printed in the Washington Appellate Reports and that the remainder shall be filed for 

public record in accordance with RCW 2.06.040, it is so ordered.

ADDITIONAL ANALYSIS

II. SUFFICIENT EVIDENCE PROVES THAT LINVILLE WAS ARMED WITH A FIREARM

Linville next argues that the State presented insufficient evidence to convict him of first 

degree burglary because the State failed to prove a nexus among the defendant, the weapon, and 

the crime.

9

 We disagree.

“Evidence is sufficient to support a finding of guilt if, after viewing the evidence in the 

light most favorable to the State, a rational trier of fact could find the essential elements of the 

crime beyond a reasonable doubt.” State v. Rose, 175 Wn.2d 10, 14, 282 P.3d 1087 (2012). “A 

claim of insufficient evidence admits the truth of the State’s evidence and all inferences that 

reasonably can be drawn from that evidence.” State v. Caton, 174 Wn.2d 239, 241, 273 P.3d 980 

(2012). We consider circumstantial and direct evidence to be equally reliable. State v. 

Delmarter, 94 Wn.2d 634, 638, 618 P.2d 99 (1980).

 

9 Linville also argues that insufficient evidence supported the firearm sentencing enhancements. 

However, because we are reversing and remanding, and “sentencing enhancements are not 

‘offenses’ as contemplated by the double jeopardy clause’s protection,” we need not consider 

this issue. See In re Pers. Restraint of Delgado, 149 Wn. App. 223, 240, 204 P.3d 936 (2009). 
No. 47916-8-II

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First degree burglary requires the State to prove, among other elements, that the 

defendant was armed with a deadly weapon or assaulted a person. RCW 9A.52.020(l)(a). The 

statutory definition for “deadly weapon” provides:

“Deadly weapon” means any explosive or loaded or unloaded firearm, and shall 

include any other weapon, device, instrument, article, or substance, including a 

“vehicle” as defined in this section, which, under the circumstances in which it is 

used, attempted to be used, or threatened to be used, is readily capable of causing 

death or substantial bodily harm.

RCW 9A.04.110(6). “A firearm, whether loaded or unloaded, is a deadly weapon per se.” State 

v. Hernandez, 172 Wn. App. 537, 543, 290 P.3d 1052 (2012) (citing In re Pers. Restraint of 

Martinez, 171 Wn.2d 354, 365, 256 P.3d 277 (2011)).

For purposes of first degree burglary, defendants are armed with a deadly weapon if a 

firearm is easily accessible and readily available for use by the defendants for either offensive or 

defensive purposes. State v. Brown, 162 Wn.2d 422, 431, 173 P.3d 245 (2007). When a 

defendant has actual possession of a firearm, sufficient evidence supports a first degree burglary 

conviction despite the firearm being unloaded and no evidence showing that the defendant 

intended to use it. Hernandez, 172 Wn. App. at 543–44.

Linville, relying entirely on Brown, argues that the State was required to prove that a 

nexus existed. But Brown involved the question of constructive possession as it related to being 

“armed” for purposes of the firearm sentencing enhancement. See Brown, 162 Wn.2d at 434 n.4.

Our decision in Hernandez offers a more apt comparison to the facts here. There, a group 

of burglars committed a series of burglaries, during one of which they took a 20-gauge shotgun. 

Hernandez, 172 Wn. App. at 540. The Hernandez court held that the State was not required to

prove a nexus between the firearm and the crime because there is no nexus requirement where 
No. 47916-8-II

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there is actual possession of a firearm, rather than constructive possession. Hernandez, 172 Wn.

App. at 544.

Here, there is no dispute that firearms were taken in the course of the burglaries. 

Therefore, either Linville or his accomplices were in actual possession of the firearms during the 

commission of the burglary. Linville concedes that guns were stolen during four of the 

burglaries.10 This fact is sufficient evidence to support the first degree burglary convictions and 

the firearm enhancements for the burglary.

Aside from his nexus argument, Linville asserts only that no evidence suggested that 

anyone involved in the burglary intended or was willing to use the stolen firearms in furtherance 

of the crime. But “[w]hen first degree burglary involves deadly weapons per se, specifically 

firearms taken in the course of a burglary, ‘no analysis of willingness or present ability to use a 

firearm as a deadly weapon’ is necessary.” Hernandez, 172 Wn. App. at 543 (internal quotation 

marks omitted) (quoting Martinez, 171 Wn.2d at 367).

Accordingly, we hold that the State presented sufficient evidence that Linville or an 

accomplice was armed with a deadly weapon for purposes of first degree burglary.

IV. OTHER ISSUES

Linville makes several additional arguments. He argues that (1) a conviction for the first 

alternative means of trafficking in stolen property cannot rest on accomplice liability, (2) 

 

10 Additionally, in closing argument, Linville’s counsel acknowledged that Linville and his 

accomplices stole guns during these burglaries, focusing instead only on their use of those guns: 

“Again, we are not contesting the burglary took place. We’re not contesting a substantial tie that 

would basically at this point find him guilty of that burglary. Find him guilty of the taking of her 

stuff. Find him guilty of the crime of possession and theft of that firearm, but there’s no factor 

that you can weigh to put it on that he’s armed.” 31 VRP at 5598. 
No. 47916-8-II

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insufficient evidence supported the firearm sentencing enhancements, (3) his constitutional right 

to a unanimous jury verdict was violated when the trial court instructed the jury that it did not 

need to reach a unanimous verdict with respect to the means by which it found him guilty of first 

degree trafficking in stolen property, (4) his 39 convictions for trafficking in stolen property 

violate his right against double jeopardy, and (5) the trial court erred by allowing the State to 

amend the charging information after it rested its case, Br. of Appellant 48. Because we 

otherwise reverse and remand, we do not reach these issues. 

Worswick, J.

We concur:

Bjorgen, C.J.

Lee, J.