### INTHE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION ONE STATE OF WASHINGTON, Respondent,

v. EDMOND MAYNOR, Appellant. No. 70858-9-1

UNPUBLISHED OPINION FILED: October 12, 2015 

### Verellen, A.C.J. —EdmondMaynorappeals his convictions forfirst degree robbery, second degree assault, and two counts of firstdegree assault. He contends 

### the robbery and second degree assault convictions violate doublejeopardy, that a mistrial was warranted when the prosecutor referred to a prior incidentthatwas not in 

### evidence, and that his attorney was ineffective forfailing to challenge his offender score based on same criminal conduct. As charged and proven, the State established 

### robbery based on fear or apprehension resulting from Maynor pointing a gun at a store clerk to obtainjewelry or shooting the gun inthe store to retain thejewelry. The State did not make an election. Because either pointing or shooting the gun constituted second degree assault and was necessary to elevate the robbery to first degree robbery, the merger doctrine ofdoublejeopardy precludes entry ofboth convictions. And because the trial court's curative instruction and Maynor's testimony remedied any potential prejudice from the prosecutor's improper question, a mistrial was unwarranted.No. 70858-9-1/2 

### Finally, Maynor fails to show that he was prejudiced by his attorney's failure to raise the
same criminalconduct objection to his offender score. Accordingly, we reverse the second degree assault conviction but otherwise affirm.
BACKGROUND On September 21, 2012, Maynor entered Westlake Center indowntown Seattle 

### and went into the Express Jewelry store. Hewas wearing a mask, sunglasses, and a hat. Maynorapproached the counter and told Tu Huynh, the onlyemployee in the store, that he was looking for a diamond engagement ring priced at $7,000 to $15,000. 

### Huynh responded thatthe store did not carry such expensivejewelry, but had a $5,000 engagement ring. He then took a ring out of a tray ofabout 18 other rings and showed it to Maynor. 

### At this point, Maynor pulled out a gun, pointed it at Huynh, and demanded the whole tray of rings. Maynortold Huynh he would shoot him if he did not give him the 

### tray. When Huynh pulled out the tray, Maynor grabbed itand ran. After running just a 

### few steps, Maynor stopped, turned around, and shot at Huynh. The bullet nearly struck Huynh, tearing a hole in his shirt sleeve. The bullet continued through the wall and into the back ofthe neighboring store, nearly hitting the store manager. Maynorfled. Huynh chased him through the mall until they reached the stairs to the Fourth Avenue entrance. Maynorjumped down the stairs and fell, but got up with the gun in his hand, pointed itat Huynh, and fired two more shots. Huynh ducked and avoided being struck by the bullets. Roberto Sandoval, a bell caption at a nearby hotel, saw Maynor running down the street in a mask. Sandoval chased Maynor and pushed him. Maynor tried to hitNo. 70858-9-1/3 

### Sandoval, but Sandoval pushed him down. Maynorthen pulled out the gun and pointed it at Sandoval. Sandoval threw himselfdown on Maynor and began fighting for the gun. Three shots were fired, and one bullet struck Sandoval's righthand and arm. Sandoval continued to try to grab the gun, and Maynor hit himthree times on the head with it. 

### Sandoval yelled for help, and the gun was thrown out of reach. Several bystanders
came to his aid, including a U.S. Marshal, who handcuffed Maynor and waited for Seattle police. 

### Seattle police arrived and took Maynor intocustody. On the ground nearthe scene, police recovered the handgun, mask, sunglasses, and a small purse. Inside the 

### purse was a notebook containing what appeared to be Maynor's robbery plans. 

### The State charged Maynor withone count of firstdegree robbery, alleged to have been committed with a deadly weapon, and three counts of first degree assault (two counts involving Huynh and one count involving Sandoval). Maynortestified and admitted to firing one shot inthe store, but claimed that he did not intend to hurt Huynh and was only trying to scare him into letting go ofthejewelry. He also admitted to firing additional shots at Huynh while fleeing, but claimed he was only trying to keep Huynh from following him. Finally, Maynor admitted that his gun discharged three times during his struggle with Sandoval, but claimed he did not purposely shoot the gun. Thejury found Maynorguilty of first degree robbery, two counts of first degree assault (one count involving Huynh and one count involving Sandoval), and one count ofthe lesser included offense of second degree assault (on the other assault count involving Huynh). By special verdict, thejury also found that Maynorwas armed with a firearm on each count. The court sentenced Maynor to 474 months ofconfinement.No. 70858-9-1/4

DISCUSSION Double Jeopardy 

### Maynor first contends that because the robbery and second degree assault convictions were for the same offense, entry ofboth convictions violates double jeopardy. Underthe existing merger case law, we agree. A court that enters multiple convictions for the same offense violates both the 

### federal and state constitutional guaranty against doublejeopardy.1 Whethertwo 

### offenses are considered separate offenses hinges upon legislative intent.2 To determine legislative intent, we first consider any express or implicit representations of 

### legislative intent.3 In the case of firstdegree robbery and second degree assault, our courts have recognized that this inquiry "is a dead end; the relevant statutes provide no 

### express or implicit representations."4 We next considerthe Blockburgertest, the merger doctrine, and whetherthere


### was an independent purpose or effect foreach offense.5 This inquiry is conducted as to first degree robbery and second degree assault on a case by case basis, taking a "hard look at each case."6 We do not considerthe elements ofthe crimes on a hypothetical or 

### abstract basis but viewthe offenses as actually charged and proved.7
1 State v. Freeman. 153 Wn.2d 765, 770-71, 108 P.3d 753 (2005). 2In re Pers. Restraint of Francis. 170 Wn.2d 517, 523, 242 P.3d 866 (2010). 3Jd 

### 5Freeman, 153 Wn.2d at 772-73 (citingBlockburgerv. United States. 284 U.S. 299, 304, 52 S. Ct. 180, 76 L. Ed. 306 (1932)). 

### 6]d at 774. 7 Francis. 170 Wn.2d at 523.No. 70858-9-1/5 Maynor does not argue that the offenses are the same underthe Blockburger 

### test. We need not perform this analysis.8 Instead, Maynor argues thatthe offenses as charged and proved are the same underthe merger doctrine and therefore amount to doublejeopardy. "Underthe merger doctrine, when the degree of one offense is raised by conduct separately criminalized by the legislature, we presume the legislature intended to punish both offenses through


### a greater sentence forthe greater crime."9 Thus, an assault committed infurtherance of 

### a robbery merges with the robbery.10 Here, the to convict instruction set forth the required proofas charged in the first degree robbery count: (3) Thatthe taking was against the person's will by the defendant's use or threatened use of immediate force, violence or fear of injury to that person or to that person's property . . . ; (4) That force or fear was used by the defendantto obtain or retain possession ofthe property; [and] (5) That inthe commission ofthese acts or in immediate flight 

### therefrom, the defendant was armedwith a deadly weaponP1]

8See id. ("These considerations fBlockburger test, merger doctrine, determination ofindependent purpose or effect ofeach offense] inform but do not 

### compel our outcome."); Freeman. 153 Wn.2d at 777 (recognizing that "'Blockburger is 

### not dispositive of the question whethertwo offenses are the same'" (quoting Inre Pers. Restraint of Percer. 150 Wn.2d 41, 50-51, 75 P.3d 488 (2003))). 9 Freeman. 153 Wn.2d at 772-73. 

### 10]d. at 778 (mergerdoes not apply to firstdegree assault because firstdegree assault carries a greater sentence than first degree robbery) 11 Clerk's Papers (CP) at 92 (emphasis added).No. 70858-9-1/6 

### The to convict instruction on the lesser included offense ofsecond degree assault required proofthat "the defendant assaulted Tu Huynh with a deadly weapon."12 The instructions defined "assault" as: An assault is an intentional shooting of another person, with 

### unlawful force, that is harmful or offensive regardless ofwhether any physical injury is done to the person. An assault is also an act, with unlawful force, done with intent to 

### inflict bodily injury upon another, tending but failing to accomplish it and accompanied with the apparent present ability to inflictthe bodily injury if not prevented. It is not necessary that bodily injury be inflicted. An assault is also an act, with unlawful force, done with the intent to create in another apprehension and fear of bodily injury, and which infact creates in another a reasonable apprehension and imminentfear of bodily 

### injury even though the actordid not actually intend to inflict bodilyinjury.[13] The State contends that, as charged, the robbery and assault did not merge because proofofthe second degree assault was not required to establish the robbery. The State asserts the robbery charge was based on Maynor's act of pointing the gun at Huynh and threatening to shoot if he did not give up thejewelry and the second degree assault charge was based on the shot Maynorfired at Huynh inthe store after he obtained thejewelry and began to flee. Thus, the State contends the charged assault (the shooting) was not required to establish the robbery (achieved by the gun pointing). But the instructions did not narrow the charges in the manner suggested by the State. To convict Maynor of first degree robbery, thejury had to find that he "use[d] or threatened use of immediate force" and was armed with a deadly weapon "in the

12CP at 104. 13 CP at 96.No. 70858-9-1/7


### commission ofthese acts orinimmediate flight therefrom."14 And to convict ofsecond degree assault, thejury had to find that he intentionally assaulted Huynh with a deadly weapon. As proved, there was no threatened use offorce until Maynor displayed the 

### gun and pointed it at Huynh. There was no use of force until he shotthe gunjustbefore he fled from the store. To find Maynor guilty ofrobbery as charged and proven, thejury 

### had to findthat either Maynorthreatened use of force to obtain the property whilearmed 

### with or displaying a deadly weapon by pointing the gun at Huynh and demanding the 

### tray of rings or that he used force to retain the property while armed with or displaying a 

### deadly weapon by shooting at him in the store after he took thejewelry. Both ofthese acts amountto a second degree assault. Under the merger doctrine, because the 

### second degree assault elevated the crime to firstdegree robbery, the convictions were for the same offense. 

### The State argues itclearly elected the shooting as the act constituting the assault 

### charge. Towithstand a double jeopardychallenge, it must be manifestly apparent that 

### thejurybased each conviction on a separate act.15 "Considering theevidence, arguments, and instructions, ifitis not clear thatitwas 'manifestly apparent to thejury that the State [was] not seeking to imposemultiple punishments for the same offense' and that each countwas based on a separate act, there is a doublejeopardy

14 CP at 92 (emphasis added). 15 State v. Mutch. 171 Wn.2d 646, 664, 254 P.3d 803 (2011); seeajso Stetej/, 

### Carson. No. 90308-5, 2015 WL 5455671, at *9 (Wash. Sept. 17, 2015) ("[A]n election 

### can be made bytheprosecuting attorney in averbal statement to thejury as long as the 

### prosecution 'clearly identified] the actupon which' the chargein question isbased." 

### (alteration in original) (quoting Statev. Thompson. 169Wn. App. 436, 474-75, 290 P.3d 996(2012))).No. 70858-9-1/8 

### violation."16 Here, the prosecutor'sclosing argumentregarding first degree robbery referred to Maynor's testimony admitting that he was armed with a deadly weapon when 

### he entered the store "threatening to use hisweapon."17 But in the very next breath, the prosecutor argued, "And he fired a round inthe store."18 The prosecutor's reference to 

### both being armed with and shooting the gun in the context of firstdegree robbery did not make itmanifestly apparentto the jurythat the State was relying only on being armed with a firearm and not upon shooting the firearm as the basis for firstdegree robbery. 

### Additionally, "we cannot considerthe closing statement inisolation."19 The evidence and the instructions allowed thejury to find that either assault established the robbery. The instructions did not require that the assault be based on an act separate 

### and distinct from that which formed the basis for the robbery.20 Accordingly, "[t]his creates an ambiguity in thejury's verdict, which, underthe rule of lenity, must be resolved in the defendant's favor."21



### 16 Mutch. 171 Wn.2d at 664 (emphasis omitted) (alteration in original) (quoting State v. Berg. 147 Wn. App. 923, 931, 198 P.3d 529 (2008)). 

### 17 Report ofProceedings (RP) (June 18, 2013) at 279. 18jd, 19 State v. Kier. 164 Wn.2d 798, 813, 194 P.3d 212 (2008). 

### 20 The instructions stated only that thejury had to find thatthe assault charged in count II occurred "on an occasion separate and distinct from [c]ount IV," the otherfirst degree assault charge involving Huynh. CP at 98, 104. 21 Kier, 164 Wn.2d at 811 (despite State's election in closing argument of different victims for the two offenses, evidence and instructions allowedjury to convict if itfound that victim was the same for both counts).No. 70858-9-1/9 

### Statev. Kiercontrols the mergeranalysis.22 In a carjacking, Kierpointed a gun at the driver of a car, who was able to run away. Kierthen pointed the gun at the passenger in the car and directed the passengerto get out ofthe car. Kier and others 

### drove awaywith the car. The State charged Kierwith first degree robbery, identifying the driverand the passengeras victims of the carjacking. The State also charged Kier with second degree assault, specifying the passenger as the victim. In closing argument, the State referred to the driveras the victim of the robbery and the passenger
as the victim ofthe assault. As the court explained: 

### When the definitions of firstdegree robbery and second degree assault are set side by side, it is clearthat both charges required the State to prove that Kier's conduct created a reasonable apprehension or fear of 

### harm. Because Kierwas also charged with being armed with or displaying a deadly weapon, this was the means ofcreating that apprehension or 

### fear. The merger doctrine is triggered when second degree assaultwith a deadly weapon elevates robbery to the firstdegree because being armed with or displaying a firearm ordeadly weapon to take property through force or fear is essential to the elevation.1231 

### This analysis applies equally here. When the definitions of firstdegree robbery and second degree assault are considered side by side, both charges required the State to prove that Maynor's conduct created reasonable apprehension or fear of harm. Although charged with being armed with a deadly weapon, as proved, Maynor both displayed and discharged the deadly weapon as the means ofcreating apprehension or fear. Stated anotherway, the apprehension or fear of harm was proved both when Maynor displayed and discharged the gun in the store. Being armed with or displaying



### 22 164 Wn.2d 798, 194 P.3d 212 (2008). 23 \± at 806 (emphasis added).No. 70858-9-1/10
the firearm to take or retain property through force or fear was essential to the elevation of robbery to first degree. Merger applies. 

### The State's reliance on State v. Esparza is misplaced.24 There, the court held that convictions for attempted first degree robbery and second degree assault did not violate doublejeopardy because proofofthe assault was not necessary to establish the 

### substantial step taken towards the attempted robbery.25 Esparza had entered a store, pointed a gun at customers and employees and announced that itwas a robbery. He also approached an employee and pointed a gun at him, but was shot by that employee and never completed the robbery. Esparza was found guilty ofattempted first degree robbery and second degree assault. On appeal, Esparza claimed that the assaultwas the substantial step necessary to establish the attempted robbery and therefore merged with the attempted robbery 

### conviction. The court disagreed, noting thatthere was otherconduct proven at trial that could have established that Esparza took a substantial step toward commission of the 

### robbery and that as charged, there were no specific allegations as to what constituted the substantial step.26 The court noted that Esparza's entry intothe store wielding a 

### gun and announcing the robberywould have been sufficientto establish a substantial 

### steptoward thecommission offirst degree robbery, withoutproofoftheassault.27 The

24 135 Wn. App. 54, 143 P.3d 612 (2006). 25 \± at 64. 26 Id, at 63. 27 Id. at 64.

10No. 70858-9-1/11 

### Statewas not required to prove the second degree assaultto establish the attempted firstdegree robbery.28 The State asserts that Esparza is indistinguishable from this case. ButEsparza 

### involved an attemptedfirstdegree robbery, which required only proof of a substantial step toward carrying out an intent to commit a robbery, with no specific conduct charged
as the substantial step. Here, the charge was a completed firstdegree robbery, which required proof ofthe use or threatened use offorce to obtain or retain property while armed with a deadly weapon. Unlike Esparza. there was no other unspecified conduct that could have supported the first degree robbery charge. Rather, the use or threatened use offorce while armed with a deadly weapon was proved by Maynor's pointing the gun to obtain thejewelry or the shooting to retain the stolenjewelry. The
use ofthe weapon was the means offorce or threat offorce used to accomplish the robbery and also amounted to an assault. Proofof either assault was therefore necessary to establish the completed robbery. In Kier, the court rejected a similar reliance on Esparza. stating: Importantly, the elevated charge at issue in Esparza was attempted first degree robbery. Proofof an attempted robbery requires only proofof intent to commit robbery and a substantial step toward carrying outthat intent. The Court ofAppeals recognized that any number of actions proved at Esparza's trial constituted a substantial step toward the attempted robbery and, thus, the assault was not necessary to elevate the 

### charge to firstdegree.1291 For similar reasons, the State's reliance on In re Personal Restraint of Francis is also misplaced. Afootnote in Francis distinguished Esparza on this same ground:
28 id, 29 Kier, 164 Wn.2d at 807 (citation omitted).

11No. 70858-9-1/12 

### Esparza held that when the State charges a defendant with an attempt crime butdoes not specifywhatthesubstantialstep is,for double jeopardy analysis, the court need not assume the assault conduct is the 

### substantial step when otherconductwould also satisfy that requirement. 

### But here the State charged Francis with specificconduct—inflicting bodily injury on Jacobsen—to satisfy the statutory elementto raise the attempted robbery to the firstdegree. The second degree assault conduct is inseparable fromthe attempted firstdegree robbery as it was 

### charged.[30]The State contends Francis supports a conclusion that there was no merger here because the firstdegree robbery charge only required 

### that Maynorbe armed with a deadly weapon, not that he inflicted bodily injury, as inFrancis. Butagain, the State's argument ignores the fact that 

### Francis addressed merger in the context ofattemptedfirstdegree robbery, proof of which differs fromthat of a completed robbery and involves a different merger analysis. As explained in Kier, inthe context of a completed first degree robbery, the merger doctrine applies whetherthe 

### assaultwas with a deadly weapon or by the infliction ofsubstantial bodily harm: 

### Kierwas convicted ofcompleted firstdegree robbery, which required more than a substantial step. That the assault here involved assault with a 

### deadly weapon, ratherthan bythe infliction ofsubstantial bodily harm, does not defeat application ofthe merger doctrine. The fact remains that 

### the completed assaultwas necessary to elevate the completed robbery to 

### firstdegree.'311 The result is the same here. 

### Finally, the State argues that even ifmerger otherwise applies, we should conclude thatthe shotfired at Huynh inthe store had a separate and distinct purpose or 

### effect from the robbery. Butthe evidence at trial did not identifyany purpose or effect of that assault otherthan to effectuate the robbery. Additionally, we have adopted the "transactional" view ofrobbery, that "[t]he taking is ongoing untilthe assailant has effected an escape [and that] [t]he definition of 'robbery' therefore includes 'violence



### 30 Francis. 170 Wn.2d at 526 n.5 (citations omitted). 31 Kier, 164 Wn.2d at 807.

12No. 70858-9-1/13 

### during flight immediatelyfollowing the taking.'"32 Similarly, shooting a gunduring flight from the store does not, initself, establish a separate or distinctpurposefrom the robbery. 

### From a broad policy perspective, it is troublesome that an individual who commits 

### first degree robbery by bothpointing a gun to force an individual to hand overproperty and subsequently shooting the gun to retain that same property faces no greater penalty than an individual who merely points the gun. But a validelection could have 

### been accomplished by an instruction requiring the jury to base the firstdegree robbery only on conduct otherthan shooting the gun inthejewelry store. No such instruction
was requested or given here. 

### Under existing case law, notably the merger analysis in Kier. we conclude that Maynor's convictions for first degree robbery and second degree assault violate double jeopardy. Accordingly, we remand to vacate the second degree assault conviction. Prosecutorial Misconduct Maynor next argues he was denied a fair trial when during cross-examination, the prosecutorfalsely accused him of planning a similar attack inthe past. He contends the trial court abused its discretion by failing to grant a mistrial because a curative instruction could not have remedied the prejudicial effect ofthe prosecutor's improper question. We disagree.



### 32 State v. Truong. 168 Wn. App. 529, 535-36, 277 P.3d 74 (2012) (citation omitted).

13No. 70858-9-1/14


### We review a denial of a motion for a mistrialbased on improper statements made 

### at trial forabuse ofdiscretion.33 In ruling on a motion formistrial, "[c]ourts look to three factors to determine whether a trial irregularitywarrants a new trial: '(1) the seriousness 

### of the irregularity; (2)whetherthe statementwas cumulative ofevidence properly admitted; and (3) whetherthe irregularity could be cured by an instruction.'"34 Maynortestified that he was having an emotional breakdown and was suicidal at 

### the time ofthe offense and that when he set out to committhe robbery, he "didn'twant 

### to see the end ofthe day."35 Duringcross-examination, the prosecutorquestioned Maynor about his planning and preparation and asked, "This is notthe first time that you 

### had contemplated hurting others in [an] effort to be shot by police, was it?"36 Maynor responded, "What do you mean?"37 Defense counsel objected and asked for a sidebar. The court excused thejury and asked the prosecutor ifhe had evidence of a prior incident. The prosecutor referred to Maynor's notebook found in a purse nearthe crime 

### scene, which had already been admitted as evidence. The prosecutor asserted thatthe notebook contained information about a plan, either another robbery with a sniper rifle
or a sniper attack, and Maynor's efforts to buy a sniper rifle, use a suppressor, and use 

### different disguises. Maynor contended this was an improper attemptto introduce ER 404(b) evidence excluded bythe trial court's ruling in limine and was impermissible

33 State v. Perez-Valdez. 172 Wn.2d 808, 814, 265 P.3d 853 (2011). 

### 34 Id,at 818 (quoting State v. Post. 118 Wn.2d 596, 620, 826 P.2d 172, 837 P.2d 599(1992)). 

### 35 RP (June 17, 2013) at 177. 36 ]d, at 183. 37 Id.

14No. 70858-9-1/15
evidence ofpropensity. The prosecutor argued that these entries were relevantto show Maynor's intentto hurt other people in the past: Essentially, what the evidence in this case willbe is that he would hurt as many people along the way, and hoped to be shot by police. That's his testimony. There is evidence that bears that out. He made preparations for that along the way[,] from the time he purchased that gun in April of 2012 until he tried to complete his plan, albeit not successfully, on 

### September21, 2012.t381 The court ruled that the evidence was inadmissible and that "[i]ts likely prejudicial effect outweighs the probative value, that it's being offered to show that he is the sort of 

### person who wants to go out and kill other people."39 The court then ruled on the mistrial motion. The court noted that the notebook


### was "admitted without limitation."40 Maynor pointed outthatthere was nothing in the notebook about plans to commit some other crime otherthan this robbery and that, 

### while itreferred to other robberies he might have researched inpreparing for this one, there was nothing about him planning to hurt other people. The prosecutor responded 

### by recasting the question based not on a prior act but on Maynor's planning of this robbery, evidence of which was contained inthe notebook. The trial court agreed that the evidence ofplanning inthe notebookwas not 

### about a prioract and thatthe form ofthe prosecutor's question suggested there was
some evidence inthe notebookthat Maynor intended to harm people. Butthe court also noted that this could be corrected through cross-examination and thejury's own review ofthe notebook. The court denied the motion for mistrial.
38 Id, at 185. 39 Id, at 187. 40 Id. at 189.

15No. 70858-9-1/16 

### Maynor then pointed out that thejury did not know that the prosecutor's question 

### referred to statements inthe notebook and thatthey still might thinkthere was another prior incident. The court offered to require the prosecutorto clarify on the record with 

### Maynorthat he was being questioned about references inthe notebook. Maynor did not acceptthis suggestion but proposed a curative instruction, which the court adopted. When thejury returned, the court instructed them, "Jury, the last question from the 

### prosecutor is stricken. You are instructed to disregard that question and any inferences 

### from that question."41 The prosecutorthen resumed cross-examination, questioning Maynor about the contents ofthe notebook. Maynorfails to show that the trial court abused its discretion by denying his motion for a mistrial. While the prosecutor's question alluding to facts not contained in the notebook was troubling, the notebook was admitted in its entirety. Thejurors had the opportunity to view itthemselves and determine whether there were prior incidents mentioned. Additionally, Maynor was able to clarify any mischaracterization ofthe contents ofthe notebook or his efforts to plan the charged crime during crossexamination. Indeed, the prosecutor specifically questioned him about entries that potentially referred to other incidents: Q. You contemplated here robbing a bank, you have notation of a bank, and you contemplated robbing an armor[ed] truck, am I correct? A. That is stuff I looked at online. Iwrote down notes so that I could, 

### youknow, look at videos and stufflike that online.'421

41 jd, at 202. 42 Id. at 206.

16No. 70858-9-1/17
The prosecutor also questioned him about entries related to the charged crime: Q. And this notebook reflects many ofthe things that you were contemplating and thinking, leading up to the events of September 21, 2012, correct? 

### A. Iwas thinking about some of thejournal notes, but notall ofthem.'431 Q. You contemplated the type ofammunition, inaddition to figuring out the shotgun, a rifle slug will go through glass, you contemplated some other ammunition that might be ofuse to you inthe events of 

### September 21, 2012, correct? For example, here you have notations about armor piercing rounds, shadow rounds, correct?
A. Yes. 

### Q.
... This was all leading up to the September 21, 2012 robbery that 

### you did commit, thatyou did choose to commit, correct? A. Yes.'441 

### Finally, the trial court gave the curativeinstruction proposed byMaynor. While 

### Maynorpersistentlyargues that "thebell cannot be unrung," hefails to show on this record that the prosecutor's question was so prejudicial that a mistrial was required. 

### Maynor admitted to the robbery and the shootings. The facts before thejurywere 

### largely uncontroverted and based on eyewitnesstestimony of several independent witnesses. Maynorfails to show that thetrial court abused itsdiscretion bydenying his
motion for a mistrial.

43 jd, at 203. 44 Id. at 206.

17No. 70858-9-1/18

Ineffective Assistance ofCounsel 

### Finally, Maynorclaims he was denied effective assistance of counsel by his attorney's failure to argue for an offender score calculation based on same criminal conduct. We disagree. 

### By affirmatively agreeing to his offender score, Maynorwaived a challenge to his offender score based on same criminal conduct. Instead, Maynorcontends his attorney's failure to raise this issue amounts to ineffective assistance of counsel. He 

### contends that the robbery conviction and the assault convictions involving Huynh encompassed the same criminal conduct because they were committed at the same 

### time, in the same place, and withthe same intent, involving the same victim. Because
we reverse his second degree assault conviction on doublejeopardy grounds, we address his argument only interms ofthe first degree robbery and the first degree assault charges involving Huynh. To prevail on a claim of ineffective assistance of counsel, the defendant must show that trial counsel's performance was deficient and that prejudice resulted from the 

### deficiency.45 Maynor must showthat itwas objectively unreasonable for his attorneyto not make the same criminal conduct argument and thatthe argument would have been successful. To prevail on a same criminal conduct claim, the defendant must prove that the convictions required the same criminal intent, were committed at the same time and



### 45 State v. Thomas. 109 Wn.2d 222, 225, 743 P.2d 816 (1987) (quoting Strickland v. Washington. 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed .2d 674 (1984)).

18No. 70858-9-1/19 

### place, andinvolved the same victim.46 The defendant bears the burden ofproving that his convictions encompass the same criminal conduct.47 We construe these 

### requirements narrowly "to disallow most claims that multiple offenses constitute the

same criminal act."48 

### Maynorcontends that the crimes occurred in the same place and at the same 

### time, citing State v. Porter49 and State v. Davis.50 The State argues they occurredin different places and with different intent, citing State v. Stockmver51 and State v. 

### Dunawav.52 Asthese cases highlight, there is a range of fact patterns present in same criminal conduct case law. Our courts have recognized thatthe trial court has considerable discretion in making these determinations as they turn on the specific facts ofeach case. "The trialjudge [is] inthe best position to evaluate the sequence of


### 46RCW9.94A.589(1)(a). 47 State v. Graciano. 176 Wn.2d 531, 539, 295 P.3d 219 (2013). 

### 48 State v. Porter, 133 Wn.2d 177, 181, 942 P.2d 974 (1997). 49133 Wn.2d 177, 183, 942 P.2d 974 (1997) (two drug sales occurred at the same time because they "were part of continuous, uninterrupted sequence ofconduct over a very short period of time"). 

### 50174 Wn. App. 623, 644, 300 P.3d 465 (2013) ("Where, as here, the different physical locations are adjacent and within a short distance ofeach other, we cannot say that the trial court abused its discretion by finding them to be the same place."). 

### 51 136 Wn. App. 212, 219, 148 P.3d 1077 (2006) (unlawful possession of multiple guns in three different rooms inthe same house did not constitute same criminal conduct; "multiple guns in different rooms infelons' homes increase the peril to both law enforcement and the general public in that they provide felons with easier and more ready access to guns inthe home, thus increasing the possibility ofharm to others"). 52109 Wn.2d 207, 217, 743 P.2d 1237, 749 P.2d 160 (1987) (where defendant robbed a restaurant employee and then attempted to kill the employee before fleeing, objective intent ofrobbery and attempted murderwas substantially different; "[w]hile the attempted murders may have been committed in an effort to escape the consequences ofthe robberies, they in no way furthered the ultimate goal ofthe robberies").

19No. 70858-9-1/20


### events and to determine whetherthese locations were separate places for the purposes 

### of the same criminal conduct analysis."53 Accordingly, it isdifficultto conclude "as a matter of lawthatthe locations involved were the same place for same criminalconduct purposes."54 

### We conclude that Maynor does not establish that his attorney's conductfell below an objective standard ofreasonableness and resulted in prejudice. While the first degree robbery and first degree assault of Huynh did occur inthe course of his actions 

### inthe store and subsequentflight from the store, in view ofthe discretion granted the trial court, there is a reasonable probability that the courtwould have rejected a same criminal conduct argument. Maynor's claim of ineffective assistance ofcounsel fails. CONCLUSION We affirm the convictions for first degree robbery and first degree assault. We
reverse the conviction for second degree assault and remand for resentencing.

WE CONCUR: 

# ^okft^+ u

53 Davis, 174 Wn. App. at 643-44. 54 Id. at 643. 

# ^deck^i

20