FLED 

### COURT OF APPEALS D( b' ON I IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON 

### 2015 MAR 

### 10 AM ` 

### 38 DIVISION II STATE OF WASHINGTON,Respondent,

v. MEKO DEAUNTE JONES, STATE OF • itj l# No. 451' DEPU UNPUBLISHED OPINION

Appellant. BJORGEN, A.C.J. — 

### Ajury found Meko Jones guilty of,among other offenses, two counts of second degree assault, one count of first degree kidnapping, and one count of first degree 

### robbery. Jones appeals, contendingthat (1) his sentences forthe assaultconvictions were unlawful because the combined term ofconfinement and community custody for each conviction exceeded the maximum allowed by statute, ( 

### 2) his assault and robbery convictions merge, as do his 

### kidnapping and robbery convictions, and (3) his counsel rendered ineffective assistance by failing to argue at sentencing that Jones' s assault, kidnapping, and robbery offenses encompassed the

same criminal conduct. In a pro se statement of additional grounds- (SAG), Jones also alleges prosecutorial misconduct. We hold that ( 1) the sentencing court erred in imposing a combined term of confinement 

### and community custodythatexceeded the maximum allowed foreach ofthe second degree assault convictions, requiring a remand to correct the unlawful sentence, ( 2) none ofJones' s convictions 

### merge because ofthe waythe State charged and proved each offense, and (3) Jones did not receive 

### ineffective assistance of counsel because his assault, robbery, and kidnapping offenses did not encompass the same criminal conduct. We decline to address Jones' s prosecutorial misconduct
claim because he invited any error.No. 45143 - 3 -II 

### We affirm Jones' s convictions, but remand to the sentencing court to correct his sentence for each ofthe second degree assault convictions so that the combined term of confinement and 

### community custody for each conviction does not exceed the statutory maximum. FACTS Kayleigh Littlefield is the mother ofJones' s son. Because ofJones' s behavioral problems, she cut off his contact with their son around Christmas of2012. 

### In earlyJanuary 2013, Jones arrived at Littlefield's school and waited for her, carrying a pistol that he believed would enhance his persuasiveness in demanding to see his son. When Littlefield arrived, Jones accosted her, aimed his pistol at her, told her that she could not take his son from him, and demanded that Littlefield go on a walk with him. Littlefield assented, but when Jones demanded the keys to her car, Littlefield refused. Though the parties disagree on 

### what exactly happened next,they do agree thatthe firearm discharged and the bullet struck Littlefield in the abdomen.1 Littlefield then gave Jones the keys.

Jones demanded that Littlefield get into her car, and she complied out offear that Jones 

### would shoot her again. As Jones drove them toward his mother's house, he repeatedly struckthe butt ofhis loaded pistol on Littlefield' s dashboard. Again,Jones and Littlefield dispute exactly 

### what happened, butthey agree that at some point in the car ride the firearm discharged again and 

## the bulletnarrowlymissed Littlefield as itflewpasther,shatteringthepassengersidewindow.2
1 Jones testified that the gun went offwhen Littlefield attempted to grab it. Littlefield testified 

### that she could not remember exactly what happened, but that she had told the officer immediately afterthe incidentthat Jones had intentionally shother. 

### 2 Jones contended that the gun again discharged accidentally when he struck it on the dashboard ofLittlefield's car. Littlefield testified thatshe could not remember exactly what happened, but thatthe gun was close by her face when fired and that she had told the investigating officer soon after the shooting that itwas intentional. 2No. 45143 -3 -II Once at Jones' s mother' s house, Jones continued to harangue Littlefield about their son 

### while they sat outside in Littlefield's car. Jones eventually asked Littlefield how much money she had. She replied that she had $300 in her bank account. Jones then told Littlefield that he
wanted money to get a shotgun to " shoot [her] mom." V Verbatim Report of Proceedings (VRP) at 43. 

### Jones then drove Littlefield to . a nearby convenience store where he demanded Littlefield' s automated teller machine (ATM) card and her personal identification number (PIN). 

### Since Jones was still armed with the pistol, Littlefield feltthat she had no choice but to comply. Jones went inside the store and withdrew $200 dollars from Littlefield's account, watching Littlefield, who remained in the car, through the store' s window to make sure she did not attempt to escape. Jones let Littlefield go after several more hours. She then drove herselfto a hospital, received treatment for the gunshot wound, and survived. 

### Among other crimes, the State charged Jones with one count offirst degree assaultforthe shooting ofLittlefield outside her school, one count offirst degree assaultforthe shot fired in 

### Littlefield's car,one count offirst degree robberyfortaking Littlefield'sATM card and PIN,and one count offirst degree kidnapping. The State alleged that each ofthese offenses was a domestic violence offense and that Jones was armed with afirearm during the commission of
each. 

### After atrial,thejury found Jones guilty of,among other crimes, first degree kidnapping, first degree robbery, and two counts ofthe lesser included offense ofsecond degree assault. The 

### jury also found that (1) the assault, kidnapping, and robbery offenses were domesticviolence

3No: 45143 -3 -II

offenses because Jones and Littlefield were members ofthe same household and (2) Jones was 

### armed with a firearm during the commission ofthe assaults, robbery, and kidnapping. The sentencing court imposed a high - end standard range sentence for each ofJones' s convictions, running each sentence concurrently with the sentences forJones' s other convictions and consecutively to each ofthe firearm enhancements, which ran consecutivelyto each other. For the two second degree assault convictions, this amounted to a sentence of 84 months of 

### confinement for each underlying charge and 36 months ofconfinement for each firearm enhancement,for atotal of 120 months for each conviction. The sentencing court also imposed 

### an 18 -month term ofcommunity custody for each ofthe second degree assault convictions.

Jones now appeals. ANALYSIS I. SENTENCING 

### Jones first contends thatthe trial court imposed a sentence in excess ofits statutory authority for each of his second degree assault convictions. Specifically, Jones argues thatthe 

### term ofconfinement and community custody imposed for each conviction exceeds the statutory maximum for each offense. The State concedes error. We accept the concession and remand for correction of his sentence.

Thomas' s second degree assault convictions are class B felonies. RCW 9A.36.021(2)( a). The maximum allowed term for a class B 

### felony is 120 months. RCW 9A.20.021( 1)( b). A 

### sentencing court "may not impose a sentence providing for aterm ofconfinement or community custody that exceeds the statutory maximum" prescribed 

### by RCW 9A.20. 021. RCW 9. 94A.505( 5). 

### Ifthe combined term ofconfinement and community custody for a standard range sentence exceeds the statutorily permissible time, the sentencing court must reduce the term of
4No. 45143 -3 - II

community custody to ensure a lawful sentence. RCW 9. 94A.701( 9); 

### In re Pers. Restraint of McWilliams, _ Wn.2d , 340 P. 3d 223, 225, 2014 WL 7338498 at * 2 ( 2014). 

### The sentencing court imposed aterm ofconfinement of 120 months for each ofJones's
second degree assault convictions: a standard range sentence of 84 months of confinement with 

### 36 months for each firearm enhancement. The trial court also imposed aterm ofcommunity 

### custody of 18 months for each conviction. The 138 - month total term for each offense exceeded the 120 -

month term permitted 

### by RCW 9A.20.021( 1)( b). We therefore remand the matter to the 

### sentencing courtto amend Jones' s term ofcommunity custody to comply with RCW 9.94A.505( 5) and .701( 9). State v. Boyd, 174 Wn.2d 470, 473, 275 P. 3d 321 ( 2012) ( per curiam). II. DOUBLE JEOPARDY 

### Jones next contends that his sentence violated doublejeopardy because several ofhis convictions merge together. Specifically, he argues that the assaults and robbery merge because the assaults were necessaryto elevate the robbery to first degree. He argues also thatthe 

### kidnapping and robbery merge becausethe restraint involved in the kidnapping was incidental to the robbery. We reviewJones' s doublejeopardy claims de novo, State v. Kelley, 168 Wn.2d 72, 76, 226 P. 3d 773 ( 2010), and hold that none of Jones' s convictions merge. 

### Both the state and federal constitutions forbid the State from putting a person injeopardy twice for the same offense. WASH. CONST. art. I, § 

### 9; U.S. CONST. amend. V.3 These constitutional provisions are coextensive, State v. Turner, 169 Wn.2d 448, 454, 238 P. 3d 461

3 Article I, section 9 ofthe Washington Constitution provides that "[ n] o person shall be ... twice put in

### jeopardy for the same offense." The Fifth Amendment to the United States Constitution provides the same guarantee, stating that "[ n] o person shall be ... subject for the same offense to 

### be twice put injeopardy oflife or limb." 5No. 45143 - 3 -II 2010), and offer " three separate constitutional protections." North Carolina v. Pearce, 395 U.S. 711, 717, 89 S. Ct. 2072, 23 L. Ed. 2d 656 ( 1969), 

### overruled on othergrounds byAlabama v. Smith, 490 U.S. 794, 109 S. Ct. 2201, 104 L. Ed. 2d 865 ( 1989). 

### They protect against (1) a second prosecution for the same offense after an acquittal, (2) a second prosecution for the same offense after conviction, and (3) multiple punishments for the same offense. Pearce, 395 U.S. at 717; Turner, 169 Wn.2d at 454. Jones claims that his sentence violated the third protection 

### offered by the prohibition on doublejeopardy, because he received multiple punishments forthe same offense by virtue ofhis separate convictions for assault, kidnapping, and robbery. The legislature may, without offending the prohibition against doublejeopardy, authorize cumulative punishments for acts that violate multiple criminal statutes. State v. Freeman, 153 Wn.2d 765, 771, 108 P. 3d 753 ( 2005). 

### Consequently, "the Double Jeopardy Clause does no 

### more than preventthe sentencing court from prescribing greater punishment than the legislature intended." Missouri v. Hunter, 459 U.S. 359, 366, 103 S. Ct. 673, 74 L. Ed. 2d 535 ( 1983). Thus, the resolution ofJones' s claims require us to examine the legislature' s intent.

We review de novo whether the legislature intended to permit multiple punishments using a three - part test. State v. Kier, 164 Wn.2d 798, 804, 194 P. 3d 212 (2008). " We first
consider express or implicit legislative intent based on the criminal statutes involved." Kier, 164 Wn.2d at 804. Where the legislature' s intent remains unclear, we apply the " same evidence" test announced in Blockburger v. United States, 284 U.S. 299, 304, 52 S. Ct. 180, 76 L. Ed. 306 1932). Kier, 164 Wn.2d at 804 ( citations omitted). That test examines whether the crimes are the same in law and in fact." Kier, 164 Wn.2d at 804. Finally, where applicable, we use the merger doctrine as a means ofascertaining legislative intent regarding multiple punishments
where the degree of one offense is elevated 

### by conduct constituting a separate offense." Kier,

6No. 45143 - 3 -II 164 Wn.2d at 804. Jones concedes that the first two parts ofthis test show no doublejeopardy violation. Therefore, like Jones, we limit our analysis to the question ofwhether his offenses
merge. State v. Knight, 176 Wn.App. 936, 953 n. 17, 309 P.3d 776 (2013), review denied, 179 Wn.2d 1021 ( 2014).

In State v. Berg, Wn.2d , 337 P. 3d 310, 314 (2014), our Supreme Court 

### summarized the merger doctrine in the following terms: Essentially, the merger doctrine states that where crime A and crime B are charged 

### separatelyand completion ofcrime A is also an element ofcrime B, crime Awill definitely merge into crime B if crime A was incidental to the commission of crime B. If crime A was not incidental but rather had an independent purpose . courts may impose separate punishment. Thus, the incidental nature ofthe crime is relevant to the application of an exception to the general merger doctrine. We examine Jones' s merger claims under this test. 1. Assault and Robbery 

### Jones first contends that his two assault convictions merge into his robbery conviction because they " provided the force necessary to elevate the robbery to first degree." Br. of Appellant at 14. Jones' s argument fails underBerg._ 

### The legislature has provided thatthe infliction ofbodily injury during the commission of

a robbery elevates the robbery to first degree. RCW 9A.56.200( 1)( a)( iii). To determine whether 

### either ofJones' s assaults merges with the robbery, we lookto "the information, instructions, testimony andjury argument" to determine whetherthe State charged and proved that Jones committed first degree robbery because he inflicted bodily injury on Littlefield during commission ofthe robbery. State v. Noltie, 116 Wn.2d 831, 848 - 49, 809 P.2d 190 ( 1991). 

### The record before us shows conclusivelythatthe State did not charge and prove first degree robbery bythe infliction ofbodily injury during the robbery. Instead,the record shows 7No. 45143 -3 -II

that the State charged Jones with first degree robbery because he deprived Littlefield ofpersonal 

### property by use orthreatened use offorce and was armed with a deadly weapon when he did so. The evidence presented bythe State attrial was consistentwith this election. Littlefield testified that Jones committed the assaults some time before he robbed her. She testified also that she complied with Jones' s demands for her ATM card and PIN, not because he assaulted her, but 

### because he was armed with afirearm when he made the demands. Consistently with that 

### evidence, the trial court instructed thejurythat Jones committed first degree robbery ifhe deprived Littlefield ofpersonal property while armed with a firearm. Significantly,the trial 

### court did not instructthejurors thatthe infliction ofbodily injury during the robbery would elevate the robbery to first degree. 

### The charges, the evidence, and thejury instructions all show,therefore, thatthe assaults 

### were not elements ofthe robbery and that the assaults had an independent purpose from that of the robbery. With that,these crimes do not merge underthe characterization ofmerger in Berg, 337 P. 3d at 314. 2. Kidnapping and Robbery 

### Jones next contends that the first degree kidnapping conviction merged into the first degree robbery conviction becausethe kidnapping was incidental to the robbery. As our Supreme Court stated in 

### Berg, "[t]he law is now settled thatjust as kidnapping can never merge into robbery, neither can robbery merge into kidnapping." 

### Berg, 337 P.3d 310, 314 (citing State

v. Louis, 155 Wn.2d 563, 571 120 P. 3d 936 ( 2005)). In light ofthis settled law, Jones' s claim is
without merit.

8No. 45143 - 3 - II III. INEFFECTIVE ASSISTANCE OF COUNSEL 

### Finally, Jones contends that his counsel rendered ineffective assistance by failing to argue at sentencing that the two assaults, robbery, and kidnapping convictions all encompassed the same criminal conduct. We review Jones' s claim de novo. State v. Sutherby, 165 Wn.2d 870, 883, 204 P.3d 916 (2009). Because none of Jones' s offenses occurred at the same time or in the same place as the others, and because many ofthem involved different criminal intents, Jones' s crimes do not encompass the same criminal conduct. We therefore reject Jones' s claim, since 

### counsel cannot have performed deficiently by declining to make a meritless argument. State v. Brown, 159 Wn.App. 1, 17, 248 P.3d 518 (2010).

Both the state and federal constitutions guarantee criminal defendants the right to
effective assistance of counsel. 4 State v. Grier, 171 Wn.2d 17, 32, 246 P. 3d 1260 (2011), cert. denied, 135 S. Ct. 153 ( 2014). A claim of ineffective assistance requires the defendant to show 

### that counsel performed deficiently and thatthis deficient performance prejudiced the defendant. Grier, 171 Wn.2d at 32 - 33 ( quoting State v. Thomas, 109 Wn.2d 222, 225 - 26, 743 P.2d 816 1987) (

### quoting Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct.2052, 80 L. Ed. 2d 674 1984))). The deficient performance and prejudice showings are conjunctive, and we may 

### resolve an ineffective assistance claim against a defendant failing to make the necessary showing on either. State v. Kyllo, 166 Wn.2d 856, 862, 215 P.3d 177 (2009). 

### In deciding whether counsel' s performance was deficient,we " strong[ly] presume[e] that counsel " provided proper, professional assistance" and " will not find deficient representation if

4 Article I, section 22 of the Washington Constitution states that "[ i] n all criminal prosecutions the accused shall have the right to appear and defend in person, or

### by counsel." The Sixth Amendment ofthe United States Constitution states that "[ i]n all criminal prosecutions, the accused shall enjoy the right ... to have the assistance of counsel for his defense." 9No. 45143 -3 -II

counsel' s actions were tied to a legitimate strategic or tactical rationale." State v. Saunders, 120 Wn.App. 800, 819, 86 P. 3d 232 (2004) (

### citing State v. Lord, 117 Wn.2d 829, 883, 822 P.2d 117 1991)). The failure to argue that several crimes encompass the same criminal conduct can 

### constitute deficient performance. Saunders, 120 Wn.App. at 824 - 25. 

### Offenses " encompass the same criminal conduct" for sentencing purposes where they require the same criminal intent, are committed at the same time and place, and involve the

same victim." RCW 9. 94A.589( 1)( a). We interpret the " same criminal conduct" language of RCW 9. 94A.589( 1)( a) " 

### narrowlyto disallow most claims that multiple offenses constitute the

same criminal act." State v. Porter, 133 Wn.2d 177, 181, 942 P.2d 974 ( 1997). Accordingly, a defendant' s failure to show that offenses involved the same criminal intent, same place and time
of commission, and same victim " prevents a 

### finding of same criminal conduct." Porter, 133 Wn.2d at 181.

The " same criminal intent" prong of RCW 9. 94A.589( 1)( a) " focus[es] on the extent to
which the criminal intent, as objectively viewed, changed from one crime to the next." State v. Dunaway, 109 Wn.2d 207, 215, 743 P.2d 1237 ( 1987). Whether a defendant' s criminal intent changed, in turn, depends, in part, on " whether one crime furthered the other." Dunaway, 109 

### Wn.2d at 215. The fact that Jones' s conduct as awhole may have been motivated by a desire to see his son is beside the point. We examine instead how Jones' s intent, objectively viewed, may 

### have changed from one specific crime to the next. Dunaway, 109 Wn.2d at 215. The " same time and place" prong ofRCW 9.94A.589( 1)( a) requires that offenses 

### completely overlap in terms oftheirtimes and places ofcommission in order to constitute the

same criminal conduct. State v. Lessley, 118 Wn.2d 773, 778, 827 P. 2d 996 ( 1992). For 

### example, in Lessley the defendant broke into his ex-girlfriend' s parent' s house and then

10No. 45143 - 3 -II kidnapped her and her mother. 118 Wn.2d at 775. 

### Lessley forced the ex-girlfriend to drive him to different places over the course of the 

### kidnapping. Lessley, 118 Wn.2d at 775. On appeal, 

### Washington' s Supreme Court held that Lessley's burglary and kidnapping offenses did not encompass the same criminal conduct because they had different criminal intents, did not occur atthe same time or in the same place, and involved different victims. Lessley, 118 Wn.2d at 778. 

### The court noted thatthe burglary was complete atthe ex-girlfriend's parent's house, butthat the kidnapping "was carried out over several hours' time" in numerous places. Lessley, 118 Wn.2d
at 778. Accordingly, the court held that "[

### t]he burglary and the kidnapping were not confined to the same time and place." Lessley, 118 Wn.2d at 778. A. The Assaults Do Not Encompass the Same Criminal Conduct 

### Generally, "

### there is one clear category ofcases where two crimes will encompass the

same criminal conduct— ` the repeated commission ofthe same crime against the same victim

over a short period of time. "' 

### Porter, 133 Wn.2d at 181 ( quoting 13A SETH A.FINE, WASHINGTON PRACTICE § 2810, at 112 (

### Supp. 1996)) ( emphasis omitted). That rule is not absolute, however, and repeated commission ofthe same completed crime against the same 

### victim in a short period oftime does not necessarily encompass the same criminal conduct. State v. Grantham, 84 Wn.App. 854, 858 -60, 932 P.2d 657 ( 1997). In Grantham, the defendant raped his victim twice in rapid succession. 84 Wn.App. at 

### 856. The State charged Grantham with two counts ofsecond degree'rape forthe offenses, ajury convicted him, and the trial court found that the two offenses did not encompass the same
criminal conduct for sentencing purposes. 

### Grantham, 84 Wn.App. at 857. We affirmed the trial 

### court's findings because, after completing the first rape, Grantham " had the time and opportunity to pause, reflect, and either cease his criminal activity or proceed to commit a further criminalNo. 45143 - 3 -II

act." 

### Grantham, 84 Wn.App. at 859. Because Grantham "chose the latter" option, he formed a new intent to commit a criminal act. Grantham, 84 Wn.App. at 859.

In light of Grantham, Jones' s two assaults on Littlefield involved different criminal 

### intents. Jones committed the first assaultwhen he shot Littlefield. After shooting her, Jones obtained her car keys, ordered her into the car, drove offtoward his mother' s house, and 

### continuedto berate Littlefield loudly and violentlyfor cutting offhis access to his son. Jones had time to pause, reflect, and cease his criminal activity. He did not do so. Instead, he formed the criminal intent to assault Littlefield again. Under Grantham, the two assaults involved different criminal intents. Jones' s two assaults also did not occur at the same time or place. The first assault occurred around 7: 00 a.m., when Jones shot Littlefield somewhere near her school. The second 

### occurred sometime later in Littlefield's car afterJones drove her away from the school. Because Jones' s assaults involved different criminal intents, occurred at different times, 

### and occurred in different places, they do not constitute the same criminal conduct. Porter, 133 Wn.2d at 181; RCW 9. 94A.589( 1)( a). 

### The Assaults and the Kidnapping Do Not Encompass the Same Criminal Conduct Even ifwe were to assume that both assaults shared the same criminal intent with the 

### kidnapping,

### 5 the assaults did not occur at the same time and in the same place as the kidnapping. The first assault began and was completed outside ofher school. The second assault began and was completed in Littlefield' s car between the school and Jones' s mother' s house. The 

### 5 Thefirstassault,objectively viewed,may have furthered the kidnapping because Jones shot Littlefield to prevent herfrom resisting the abduction. See State v. Edwards,45 Wn.App. 378, 382 -83, 725 P. 2d 442 ( 1986), 

### overruled on othergrounds by Dunaway, 109 Wn.2d at 215. Jones makes no substantial argument as to howthe second assault did the same, and since Jones had 

### Littlefield secured in her car and was driving away, such an argument could not be accepted. 12No. 45143 -3 -II



### kidnapping began outside the school and continued for six hours,in places as diverse as inside Littlefield's car, outside Jones' s mother's house, in a convenience store parking lot, inside Jones' s mother' s house, inside Littlefield's car again, outside a pawn shop, in the alley where Jones met an acquaintance, and back at Jones' s mother's house, where the kidnapping ended. 

### The complete overlap in space and time necessary for afinding thatthe assaults and kidnapping encompassed the same criminal conduct was simply not present here. Porter, 133 Wn.2d at 181; Lessley, 118 Wn.2d at 778; RCW 9.94A.589(1)( a). C. The Assaults Do Not Encompass the Same Criminal Conduct as the Robbery 

### The assaults and the robbery had different criminal intents. Objectively viewed,Jones assaulted Littlefield to force her to complywith his commands to come with him orto instill fear in her. Objectively viewed, Jones committed robbery to " acquire property." Dunaway, 109 Wn.2d at 216. 

### Further, Jones' s assaults and the robbery did not occur in the same place or atthe same time. As noted above, the first assault took place at her school, the second happened later in Littlefield' s car while Jones drove herto his mother' s house, and the robbery occurred at some latertime in a convenience store parking lot. None ofthe offenses occurred at the same time or in the same place as the others. Lessley, 118 Wn.2d at 778. For each ofthese reasons, the 

### assault and robbery offenses did not encompass the same criminal conduct. Porter, 133 Wn.2d at 181; Lessley, 118 Wn.2d at 778; RCW 9.94A.589( 1)( a). D. 

### The Kidnapping Does Not Encompass the Same Criminal Conduct as the Robbery In State v. Larry,we held that a continuing kidnapping which shared some temporal 

### overlap with a robbery did not require the same criminal intent or occur in the same place or at the same time as the robbery. 108 Wn.App. 894, 34 P. 3d 241 ( 2001). In Larry,two men
13No. 45143 - 3 -II kidnapped a restaurant manager, robbed him, returned to the restaurant and forced the manager 

### to open its safe, which they looted. Larry, 108 Wn.App. at 899. The two men then tookthe 

### manager to various locations before shooting him and leaving him for dead. Larry, 108 Wn. 

### App. at 899. We held thatthe kidnapping and robbery involved different criminal intents. 

### Larry, 108 Wn.App. at 916. We also held thatthe robbery andthe kidnapping did not occur at the same place ortime because "the kidnapping occurred over aperiod oftime and in several locations, whereas the robbery occurred at a single time and place." 

### Larry, 108 Wn.App. at 916. 

### Here, as in Larry,Jones' s kidnapping and robbery offenses involved different criminal intents. As in Larry,the kidnapping began before the robbery and continued long after it, continuing in places where the robbery did not occur. The different intents, places, and times prevent a finding that the kidnapping and robbery encompassed the same criminal conduct. 

### Porter, 133 Wn.2d at 181; Lessley, 118 Wn.2d at 778; Larry, 108 Wn.App. at 916; RCW 9. 94A.589( 1)( a). IV. PROSECUTORIAL MISCONDUCT 

### In his SAG, Jones alleges that the prosecutor committed misconduct by ordering 

### Littlefield and a police detective notto testifythatJones " was on acrack cocain[e] b[i]nge for day[ s] [ 

### leading] up to the inc[ i]dent." SAG at 2. The prosecutor told Littlefield and the detective 

### not to mention Jones' s drug use in order to complywith the trial court's order on a motion in limine. Jones moved for that order. Jones thus set up the error he now complains of,and we 

### decline to review his claim underthe invited error doctrine. City ofSeattle v. Patu, 147 Wn.2d 717, 720, 58 P. 3d 273 ( 2002).

14No. 45143 -3 -II CONCLUSION 

### We affirm Jones' s convictions, but remand to the sentencing court to correct his sentence for each ofthe second degree assault convictions so that the combined term of confinement and 

### community custody for each conviction does not exceed the statutory maximum. 

### A majority ofthe panel having determined thatthis opinion will not be printed in the Washington Appellate Reports, but will be filed for public record in accordance with RCW 2.06.040, it is so ordered.

We concur:

15