FILED 


OCTOBER 16,2014 


In the Office of the Clerk ofCourt 


W A State Court of Appeals, Division III 


IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON 


DIVISION THREE 


STATE OF WASHINGTON, ) 

) No. 32293-9-III 

Respondent, ) 

) 

v. ) 

) 

SHA WN ERIN MULLEN, ) UNPUBLISHED OPINION 

) 

Appellant. ) 

FEARING, J. A jury found Shawn Mullen guilty offirst degree burglary and first 

degree robbery for entering the home ofLeonard Dewitt, assaulting him, and taking a 

$100 bill from him. On appeal, Mullen contends the trial court abused its discretion 

when it concluded that the burglary and robbery were not the same criminal conduct for 

purposes ofcalculating his offender score. We disagree and affirm Mullen's sentence. 

FACTS 

Shawn Mullen and his victim, Leonard (Lenny) Dewitt, were not close friends, but 

knew each other and shared mutual friends. Dewitt did not own a car and so Mullen 

occasionally provided Dewitt rides, including to and from a casino. Mullen also loaned 

Dewitt money. 
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l No. 32293-9-II1 I State v. Mullen

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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 Dewitt between $30 and $50. 

Shawn Mullen testified at trial that Lenny Dewitt owed him $1,000 total, and that 

Dewitt failed to return sunglasses he borrowed from Mullen. According to Mullen, 

Dewitt repeatedly promised to satisfY the debt, but never did. Mullen also believed that 

Dewitt had stolen electronics from him. 

About 6:00 p.m. on December 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 to join him. He told the two he wanted to collect his money. Mullen 

barely knew Huniu but wanted to bring "a big guy to intimidate [Dewitt] a little bit." RP 

at 332. The three 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'Connor used the only downstairs bathroom; Dewitt used an upstairs bathroom. 

Meanwhile Shawn Mullen, Alexis McGregor, and Albert Huniu returned to Lenny I 

Dewitt's t home. McGregor sat in Mullen's truck and played a game on her cell phone. 

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No. 32293-9-111 

State v. Mullen 

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

a golf club. Mullen testified that he instructed Huniu to not use violence and that the golf 

club was unnecessary. 

From the upstairs, Lenny Dewitt heard two voices in his home. Dewitt recognized 

one of the voices as Shawn Mullen's tone, but did not recognize the other. Dewitt ran 

downstairs to discover Mullen and Albert Huniu. Dewitt was not expecting Mullen and 

had never met Huniu. Dewitt described Huniu as "a big, stocky-type guy, you know, 

medium height, just really big and stocky," and "[t]hat he was kind of angry." RP at 91. 

Mullen was also upset. 

Shawn Mullen talked about a PlayStation 3. Then Albert Huniu repeatedly beat 

Lenny Dewitt with the golf club. Dewitt tried to escape the assault by shielding himself 

with furniture, but Huniu persisted in striking him. Dewitt tried to run outside. Mullen 

blocked his way. Dewitt handed Mullen two $100 bills, after which Huniu ended his 

attack. Mullen spoke ofproperty stolen from his house and then punched Dewitt in the 

face. 

Lenny Dewitt ran upstairs into his office and locked the door. Shawn Mullen 

pursued him upstairs. According to Mullen, Dewitt went upstairs to collect and then 

return Mullen's property. Mullen pounded on the office door. Dewitt told Mullen, "I'm 

calling 911" which he did. RP at 133. Mullen left. 

From the truck, Alexis McGregor saw Albert Huniu leave Lenny Dewitt's home 

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No. 32293-9-III 

State v. Mullen 

and walk down the street with the golf club. Shawn Mullen exited the house and entered 

the truck. When McGregor asked what happened, Mullen replied "[n Jot to worry about 

it." RP at 53. McGregor then saw Dewitt, with blood dripping from his nose, standing in 

front of the truck. Mullen drove down the street and picked up Huniu. Huniu entered the 

truck, without the golf club. Mullen told McGregor that "Albert got a little carried 

away." RP at 61. 

From his driveway, Lenny Dewitt reported Shawn Mullen's license plate number 

to a 911 operator. About 15 minutes later, police pulled Shawn Mullen over. Mullen 

told police that he was tired of Dewitt robbing him and that whatever Dewitt said was a 

lie. Police arrested Mullen, found two $100 bills in Mullen's pocket and a golf club in 

bushes near Dewitt's home. 

PROCEDURE 


The State charged Shawn Mullen with first degree burglary and first degree 


robbery, with deadly weapon enhancements for both counts. The charges proceeded to a 


jury trial. 

The trial court instructed the jury on first degree burglary: 

A person commits the crime of burglary in the first degree when he 

or she enters or remains unlawfully in a building with intent to commit a 

crime against a person or property therein, and if, in entering or while in the 

building or in immediate flight therefrom, that person or an accomplice in 

the crime assaults any person. 

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I No. 32293-9-III 

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! State v. Mullen 

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To convict the defendant of the crime of burglary in the first degree, 

each of the following elements of the crime must be proved beyond a I 

I 
 reasonable doubt: 


(1) That on or about the 16th day of December, 2011, the defendant 

entered or remained unlawfully in a building; 

(2) That the entering or remaining was with intent to commit a crime I 

I against a person or property therein; 

I (3) That in so entering or while 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 of Washington. 

If you find from the evidence that each of these elements has been 

proved beyond a reasonable doubt, then it will be your duty to return a 

verdict of guilty. 

I On the other hand, 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 of not guilty. 

Clerk'Papers (CP) at 76-77 (emphasis added). The burglary instruction did not specifY 

the other crime intended to be committed by Mullen when entering Lenny Dewitt's 

home. 

For first degree robbery, the trial court instructed the jury: 

A person commits the crime of robbery in the first degree when in 

the commission of a robbery he or she inflicts bodily injury. 

To convict the defendant of the crime of robbery in the first degree, 

each of the following six elements of the crime must be proved beyond a 

reasonable doubt: 

(1) That on or about the 16th day ofDecember, 2011 the defendant 

or an accomplice unlawfully took personal property from the person or in 

the presence of another; 

(2) That the defendant or accomplice intended to commit theft of the 

property; 

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No. 32293-9-111 

State v. Mullen 

(3) That the taking was against the person's will by the defendant or 

accomplice's use or threatened use of immediate force, violence or fear of 

injury to that person; 

(4) That the force or fear was used by the defendant or accomplice to 

obtain or retain possession ofthe property or to 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 of Washington. 

If you find from the evidence that each ofthese elements have been 

proved beyond a reasonable doubt, then it will be your duty to return a 

verdict of guilty. 

On the other hand, if, after weighing all the evidence, you have a 

reasonable doubt as to anyone ofthese elements, then it will be your duty 

to return a verdict ofnot gUilty. 

The jury found Mullen guilty of both counts. By special verdict, the jury 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 of sentencing. Friends and family also 

wrote to the trial court requesting leniency, pointing to 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 of calculating 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 of a 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 trial judge [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 not review whether to apply the anti-merger statute. 

Based on the offender score of three, 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 of 77 months' confinement. 

LA W 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 of calculating his 

offender score under RCW 9.94A.589. '''Atrial court's determination of what 

constitutes the same criminal conduct for purposes of calculating an offender score will 

not be reversed absent an abuse of discretion or misapplication of the law. '" State v. Tili, 

139 Wn.2d 107,122,985 P.2d 365 (1999) (quoting State v. Walden, 69 Wn. App. 183, 

188, 847 P.2d 956 (1993». "A trial court abuses its discretion when its decision is 

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No. 32293~9~III 

State v. Mullen 

manifestly unreasonable or based on untenable grounds or reasons." 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 if they were prior convictions for the purpose of the offender 

score: PROVIDED, That if the court enters a finding that some or all of the 

current offenses encompass the same criminal conduct then those current 

offenses shall be counted as one crime. Sentences imposed under this 

subsection shall be served concurrently. Consecutive sentences may only 

be imposed under the exceptional sentence provisions ofRCW 9.94A.535. 

"Same criminal conduct," as used in this subsection, means two or more 

crimes that require the same criminal intent, are committed at the same time 

and place, and involve the same victim. 

(Emphasis added.) "If anyone of these elements is missing, the sentencing court must 

count the offenses separately in calculating the offender score." Knight, 176 Wn. App. at 

959. 

Shawn Mullen committed the burglary and robbery at the same time and place and 

against the same victim. At issue is whether Mullen's convictions required the same 

criminal intent for purposes ofRCW 9.94A.589(l)(a). 

"In order to 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 whether commission of one crime furthered the other." State v. Bickle, 153 Wn. 

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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 of the 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 order to 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 Dewitt purportedly 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 

of burglary when he entered Lenny Dewitt's home with the intent to intimidate him. 

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No. 32293-9-III 

State v. Mullen 

Dewitt ran downstairs. Mullen spoke about a PlayStation 3, after which Albert Huniu 

beat Dewitt with a golf club. Dewitt shielded himself with a piece of furniture 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 of intimidation 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 or two $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 of that discretion. The court's application ofRCW 

9.94A.S89 was reasonable and tenable. The trial court did not misapply the law. 

Statement ofAdditional 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. 

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No. 32293-9-II1 

State v. Mullen 

A majority of the 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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