### FILED OCTOBER 16,2014 In theOffice ofthe ClerkofCourt W A StateCourt ofAppeals, Division III

INTHE COURT OF APPEALS OFTHE STATE OF WASHINGTON DIVISIONTHREE STATEOF WASHINGTON, ) ) No. 32293-9-III Respondent, ) ) v. ) ) SHA WNERINMULLEN, ) UNPUBLISHED OPINION ) Appellant. ) FEARING, 

### J. Ajuryfound ShawnMullen guilty offirstdegreeburglary and first degree robbery for enteringthehomeofLeonardDewitt, assaulting him, andtaking a $100 bill from him. Onappeal, Mullencontendsthe trial court abused its discretion whenit concludedthat theburglary and robbery werenotthe same criminal conduct for purposes ofcalculatinghis offender score. We disagree and affirm Mullen's sentence. FACTS ShawnMullen andhis victim, Leonard (Lenny) Dewitt, were not close friends, but kneweach other and sharedmutual friends. Dewittdidnot own a car and soMullen occasionallyprovidedDewittrides, includingto and from a casino. Mullen also loaned Dewittmoney.

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# l No. 32293-9-II1 State 

### v. Mullen 

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# I i On December 12,2011, Lenny Dewitt, Shawn Mullen, and Mullen's girl friend, Alexis McGregor, went to a casino. Since he lacked cash, Dewitt asked Mullen to loan him money. Mullen lent Dewittbetween $30 and $50. ShawnMullen testified at trial thatLenny Dewitt owed him $1,000 total, and that Dewitt failed to return sunglasses he borrowed from Mullen. According to Mullen, Dewittrepeatedlypromised to satisfY the debt, but never did. Mullen also believed that Dewitthad stolen electronics from him. About 6:00 p.m. onDecember 16, 2011, Shawn Mullen decided to go to Lenny Dewitt's home to "get [his] money back." RP at 313. Mullen invited Alexis McGregor and Albert Huniu tojoinhim. He told the two he wanted to collecthis money. Mullen barely knew Huniu but wanted to bring "abig guy to intimidate [Dewitt] a little bit." RP at 332. Thethree went to Dewitt's home, knocked on the front, but there was no response. They left to return later that night. Lenny Dewitt arrived home after 11 :00 p.m. with a friend, Kevin O'Connor. Dewitt and O'Connor entered the home through the garage, because the front door was broken. Dewitt expected his boyfriend, Michael Haan, home any minute, so he left the garage door open and a light on. Both Dewitt and O'Connor needed to use the restroom. O'Connorused the only downstairs bathroom; Dewitt used an upstairs bathroom. Meanwhile Shawn Mullen, Alexis McGregor, and Albert Huniu returned to Lenny 

# I t Dewitt's home. McGregor sat in Mullen's truck and played a game onher cell phone. 2 

# } fNo. 32293-9-111 State v. Mullen

Mullen and Huniu entered Lenny Dewitt's home through the open garage. Huniu carried

a golfclub. Mullen testified that he instructed Huniuto not use violence and that the golf club was unnecessary. From the upstairs, Lenny Dewittheard two voices in his home. Dewittrecognized

one ofthe voices as Shawn Mullen's tone, but did notrecognize the other. Dewittran downstairs to discover Mullen and Albert Huniu. Dewittwas not expecting Mullen and had never met Huniu. Dewitt described Huniu as "abig, stocky-type guy, you know, mediumheight,justreally big and stocky," and "[t]hathe was kind ofangry." RP at 91. Mullen was also upset. Shawn Mullentalked about a PlayStation 3. ThenAlbert Huniu repeatedlybeat Lenny Dewittwith the golfclub. Dewitt tried to escape the assault by shielding himself with furniture, but Huniu persisted in strikinghim. Dewitttried to run outside. Mullen blocked his way. Dewitthanded Mullen two $100 bills, after which Huniu endedhis attack. Mullen spoke ofproperty stolen from his house and then punchedDewitt in the face. Lenny Dewittran upstairs into his office and locked the door. Shawn Mullen pursued him upstairs. Accordingto Mullen, Dewittwentupstairs to collect and then return Mullen's property. Mullen pounded on the office door. Dewitttold Mullen, "I'm calling 911" which he did. RP at 133. Mullen left. From the truck, Alexis McGregor sawAlbert Huniu leave Lenny Dewitt'shome 

### 3No. 32293-9-III State v. Mullen

and walk downthe streetwith the golfclub. ShawnMullen exited the house and entered the truck. When McGregor asked whathappened, Mullen replied "[nJot to worry about it." RP at 53. McGregorthen saw Dewitt, with blood dripping from his nose, standing in front ofthe truck. Mullen drove down the street andpicked up Huniu. Huniu entered the truck, withoutthe golfclub. Mullen told McGregor that "Albert got a little carried away." RP at 61. From his driveway, Lenny Dewittreported Shawn Mullen's license platenumber to a 911 operator. About 15 minutes later, policepulled Shawn Mullen over. Mullen told police thathe was tired ofDewittrobbing him and that whatever Dewitt said was a lie. Police arrested Mullen, found two $100 bills in Mullen's pocket and a golfclub in bushes near Dewitt'shome. PROCEDURE The State charged ShawnMullen with first degree burglary and first degree robbery, with deadly weapon enhancements for both counts. The charges proceeded to a jurytrial. The trial court instructed thejury on first degree burglary: A person commits the crime ofburglary in the first degree when he or she enters or remains unlawfully in a buildingwith intentto commit a crime against a person orproperty therein, and if, in entering orwhile in the building or in immediate flight therefrom, thatperson or an accomplice in the crime assaults any person.

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# I No. 32293-9-III 

# ! ! State v. Mullen 

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## I ! To convict the defendant ofthe crime ofburglary in the first degree, each ofthe following elements ofthe crime must be proved beyond a 

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# I reasonable doubt: (1) That on or about the 16th day ofDecember, 2011, the defendant entered or remained unlawfully in a building; (2) That the enteringor remaining was with intent to commita crime 

# I I against aperson orproperty therein; 

## I (3) That in so entering orwhile in the building or in immediate flight 

# I from the building the defendant or an accomplice in the crime charged 

# I assaulted a person, and 

# I (4) That any ofthese acts occurred in the State ofWashington. Ifyou find from the evidence that each ofthese elements has been proved beyond a reasonable doubt, then it will be your duty to return a verdict ofguilty. 

# I On the otherhand, if, after weighing all ofthe evidence, you have a reasonable doubt as to anyone ofthese elements, then it will be your duty to return a verdict ofnot guilty. Clerk'Papers (CP) at 76-77 (emphasis added). Theburglary instruction did not specifY the other crime intendedto be committed by Mullen when entering Lenny Dewitt's home. For first degree robbery, the trial court instructed thejury: A person commits the crime ofrobbery in the first degree when in the commission ofa robbery he or she inflicts bodily injury. To convict the defendant ofthe crime ofrobbery in the first degree, each ofthe following six elements ofthe crime mustbeproved beyond a reasonable doubt: (1) That on or about the 16th day ofDecember, 2011 the defendant or an accomplice unlawfully tookpersonal property from theperson or in the presence ofanother; (2) That the defendant or accomplice intended to commit theft ofthe property;

5No. 32293-9-111 State v. Mullen (3) Thatthe taking was against the person's will by the defendant or accomplice's use orthreatened use ofimmediate force, violence orfear of injury to that person; (4) That the force or fear was used by the defendant or accomplice to obtain orretain possession oftheproperty orto prevent or overcome resistance to the taking; (5) That in the commission ofthese acts the defendant or an accomplice inflicted bodily injury; and (6) That any ofthese acts occurred in the State ofWashington. Ifyou find from the evidence that each ofthese elements have been proved beyond a reasonable doubt, then it will beyour duty to return a verdict ofguilty. On the otherhand, if, after weighing all the evidence, you have a reasonable doubt as to anyone ofthese elements, then it will be your duty toreturn a verdict ofnot gUilty.

Thejury found Mullen guilty ofboth counts. By special verdict, thejury also found for each count that Mullen was "armed with a deadly weapon." CP at 101-02. At sentencing, Shawn Mullen argued that the burglary and robbery should constitute the same criminal conduct for purposes ofsentencing. Friends and family also wrote to the trial court requesting leniency, pointingto Mullen's strong work ethic and dedication to his son. The trial court concluded that the burglary and robbery were not the same criminal conduct for purposes ofcalculating Mullen's offender score under RCW 9.94A.589. The trial court calculated Shawn Mullen's offender score as three based on a 2003 conviction for unlawful possession ofa controlled substance and the two convictions at issue in this

case. 

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### No. 32293-9-II1 State v. Mullen



### Under RCW 9A.52.050, the burglary anti-merger statute, "a trialjudge [has] discretion to punish a burglary separately, even where the burglary and another crime encompassed the same criminal conduct." State 

### v. Knight, 

### 176 Wn. App. 936, 962, 309 P.3d 776 (2013), review denied, 

### 179 Wn.2d 1021,318 P.3d 279 (2014). Because it concluded that Mullen's burglary and robbery were not the same criminal conduct, the trial court did notreview whether to apply the anti-merger statute. Based on the offender score ofthree, the trial court sentenced Shawn Mullen to 41 months confinement for first degree burglary and 53 months for first degree robbery. The trial court added 24 months to each crime as a deadly weapon enhancement for a total of65 months for burglary and 77 months for robbery. The court ordered Mullen's sentences to run concurrently for a total of77 months' confinement. LAW AND ANALYSIS Same Criminal Conduct 

### Shawn Mullen contends that his convictions for first degree burglary and first degree robbery constitute the "same criminal conduct" for purposes ofcalculatinghis offender score under RCW 9.94A.589. '''Atrial court's determination ofwhat constitutes the same criminal conduct for purposes ofcalculating an offender score will not be reversed absent an abuse ofdiscretion or misapplication ofthe law.'" State 

### v. Tili, 

### 139 Wn.2d 107,122,985 P.2d 365 (1999) (quotingState 

### v. Walden, 

### 69 Wn. App. 183, 188, 847 P.2d 956 (1993». "Atrial court abuses its discretion when its decision is 7No.**32293~9~III** State v. Mullen manifestly unreasonable or based on untenable grounds orreasons." State v. Mehrabian, 175 Wn. App. 678, 710, 308 PJd 660, review denied, 178 Wn.2d 1022,312 P.3d 650 (2013). RCW 9.94A.589(1)(a) provides: Except as provided in (b) or (c) ofthis subsection, whenever a person is to be sentenced for two or more current offenses, the sentence range for each current offense shall be determined by using all other current and prior convictions as ifthey wereprior convictions for the purpose ofthe offender score: PROVIDED, That ifthe court enters a finding that some or all ofthe current offenses encompass the same criminalconductthen those current offenses shall be countedas one crime. Sentences imposed under this subsection shall be served concurrently. Consecutive sentences may only be imposed underthe exceptional sentence provisions ofRCW 9.94A.535. "Same criminal conduct," as used in this subsection, means two ormore crimes that require the same criminal intent, are committed at the same time and place, and involve the same victim. (Emphasis added.) "Ifanyone ofthese elements is missing, the sentencing court must count the offenses separately in calculating the offender score." Knight, 176 Wn. App. at 959. Shawn Mullen committedthe burglary and robbery atthe same time andplace and against the same victim. Atissue is whetherMullen's convictions required the same criminal intent for purposes ofRCW9.94A.589(l)(a). "In orderto determine whether two crimes share the same criminal intent, courts look at whether the defendant's intent, viewed objectively, changed from one crime to the next and whethercommission ofone crime furthered the other." State v. Bickle, 153 Wn.

8

### No. 32293-9-111 State v. Mullen 

### App. 222, 229-30, 222 P.3d 113 (2009). "Intent, in this context, is not the particular

mens rea 

### element ofthe particular crime, but rather is the offender's objective criminal purpose in committing the crime." State 

### v. Adame, 

### 56 Wn. App. 803, 811, 785 P.2d 1144 (1990). "To determine whether a defendant's intent changed, we analyze whether crimes

are sequential or continuous." Mehrabian, 

### 175 Wn. App. at 711. "When a defendant 'ha[s] the time and opportunity to pause, reflect, and either cease his criminal activity or proceed to commit a further criminal act,' the crimes are sequential and not the same criminal conduct." Mehrabian, 

### 175 Wn. App. at 711 (quoting State 

### v. Grantham, 

### 84 Wn. App. 854, 859, 932 P.2d 657 (1997». RCW 9.94A.589 affords a trial court discretion. The trial court could have concluded that Shawn Mullen's convictions for burglary and robbery expressed a singular criminal purpose-namely, to bully Lenny Dewitt into returning Mullen's property and satisfying debts. Mullen testified he went to Dewitt's home in orderto get his money. He admitted that he brought Albert Huniu along to intimidate Dewitt. Mullen unlawfully entered Dewitt's home in order to retrieve what he perceived to be his; in this way, Mullen's burglary furthered the robbery. During the assault, Mullen twice mentioned property Dewittpurportedly stole from him. Thus, a trial court could conclude the evidence showed continuous criminal conduct. The opposite conclusion is equally plausible. Shawn Mullen completed the crime ofburglary when he entered Lenny Dewitt's home with the intent to intimidate him. 9

### No. 32293-9-III State 

### v. Mullen



### Dewitt ran downstairs. Mullen spoke about a PlayStation 3, after which Albert Huniu beat Dewitt with a golfclub. Dewitt shielded himselfwith a piece offurniture and then tried to run outside. At this point, Mullen had not yet assaulted Dewitt. Mullen could have allowed Dewitt to escape outside with his message ofintimidation already delivered. But instead, Mullen blocked Dewitt from leaving and punched Dewitt in the face. Only after Mullen punched Dewitt did Dewitt give Mullen one ortwo $100 bills, completing the robbery. Mullen committed burglary, with an underlying assault by intimidation. Then, Mullen committed robbery, punching Dewitt into surrendering his property. Thus, the trial court could conclude the evidence showed sequential criminal activity and intent. The trial court's refusal to exercise its discretion in a manner favoring Shawn Mullen does not constitute an abuse ofthat discretion. The court's application ofRCW 9.94A.S89 was reasonable and tenable. Thetrial court did not misapply the law. Statement of Additional Grounds (SAG) 

### In his SAG, Shawn Mullen contends that the State deliberately misled the court when it paraphrased Lenny Dewitt's testimony at Mullen's sentencing hearing. He does not argue any basis for relief, however. There is no cognizable issue for this court to address. CONCLUSION We affirm Shawn Mullen's sentence.10No. 32293-9-II1 State v. Mullen

A majority ofthe panel has determined this opinion will not be printed in the Washington Appellate Reports, but it will be filed for public record pursuant to RCW 2.06.040.

Fearing,

. WE CONCUR:

Lawrence-Be



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