IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

IN THE MATTER OF THE 

PERSONAL RESTRAINT OF:

HAROLD JOHN MURPHY, Jr.,

Petitioner.

No. 83195-0-1

DIVISION ONE

UNPUBLISHED OPINION

Hazelrigg, A.C.J. — In 2018, Harold Murphy was convicted of a number of 

felonies which were affirmed on direct appeal by this court. Murphy timely filed 

this personal restraint petition in which he raises nine claims, including ineffective 

assistance of trial and appellate counsel, and seeks an order vacating his 

convictions. Because Murphy fails to demonstrate actual and substantial prejudice 

as to any and all claims, we deny his petition.

FACTS

Murphy was found guilty of one count each of attempted theft in the first 

degree and assault in the second degree, both with firearm enhancements,1 one 

count of unlawful possession of a firearm in the first degree (UPF1),2 and three 

additional counts of attempted theft in the first degree without enhancements.3 

This court affirmed his convictions in an unpublished opinion. State v. Murphy, No. 

78231-2-I, slip op. at 1 (Wash. Ct. App. Apr. 13, 2020) (unpublished), 

 1 Counts 1 and 2.

2 Count 3.

3 Counts 4, 5, and 6.
No. 83195-0-I/2

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https://www.courts.wa.gov/opinions/pdf/782312.pdf, review denied, 196 Wn.2d 

1005 (2020). The charges against Murphy arose from a bank fraud scheme 

targeting Boeing Employees Credit Union (BECU) that involved deposits of fake 

checks into accounts and withdrawals of provisional funds from those accounts. 

Id. at 1. The relevant facts were set out in Murphy’s direct appeal as follows:

In June 2016, Murphy met Samantha Tinoco and her friend 

Taya Sneed and recruited them to work for him. Murphy told Sneed 

he wanted to hire her to promote him as a rapper. Tinoco thought 

she would be working as a model for Murphy’s rap videos. Murphy 

told the women he would pay them in advance but first they needed 

to deposit checks in their BECU accounts because his account was 

“full.”

Sneed testified Murphy told her that “they weren’t able to get 

their money, so they put those checks in our name so that we could 

get it for them, and were also saying that it’s going to, like, turn into 

ours.” Tinoco and Sneed also gave Murphy their debit cards and 

PINs.4 Murphy claimed he needed the debit cards “because he was 

doing a show” in Portland, Oregon. 

Murphy and a friend showed the women an “envelope full of”

checks. The checks were from businesses like Seattle City Light and 

Aerotek and made payable to Tinoco and Sneed. Murphy drove the 

women to several BECU branches to deposit the checks and 

withdraw the cash for him. While in Murphy’s car, both Sneed and 

Tinoco saw a gun in the glove compartment. When Sneed asked 

about the gun, Murphy said he “only uses it when he needs it.”

Between June 10 and 13, Tinoco deposited four checks, 

immediately withdrew the cash, and gave it to Murphy. Sneed 

attempted to deposit checks on three occasions. On the third 

attempt, the teller refused the transaction because too much money 

had gone through Sneed’s account. Later that day, Sneed and 

Tinoco spoke with a friend who alerted them to the fraudulent 

scheme. Sneed and Tinoco went to BECU to report the fraud on June 

13. By that time, Sneed had deposited and withdrawn almost $5,000 

for Murphy. Tinoco had deposited and withdrawn nearly $9,800. 

Celeste Barker-Henry testified about her role in a similar 

incident around the same time. Barker-Henry was experiencing 

financial troubles and Murphy and his friend told her they could help. 

They sat in Murphy’s car in a parking lot and Murphy offered to write 

her a check for the money she needed. Barker-Henry gave Murphy 

 4 Personal identification numbers.
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her debit card and PIN. While she was in Murphy’s car, Barker-Henry 

saw a gun in the center console. 

The next day on June 15, Murphy gave Barker-Henry a check 

from Swedish Hospital made payable to her. He told her to deposit 

the check in her BECU account. Murphy explained that he would 

withdraw some of the money and leave the amount she needed in 

her account. When Barker-Henry attempted to deposit the check, the 

teller informed her the check was “fake.” A bank security employee 

told Barker-Henry to return the next day to discuss the incident. 

When Barker-Henry left BECU approximately 20 minutes after she 

entered the bank, Murphy was gone. 

Barker-Henry returned to BECU the next day as instructed. 

The BECU fraud investigator showed her evidence that Murphy had 

used her debit card to deposit a fraudulent check at an ATM5 and 

withdraw cash. A month later, Barker-Henry met with King County 

Sheriff’s Detective Robin Fry and identified Murphy from a 

photomontage. 

Murphy’s younger cousin Rolazja Stewart-Satterwhite also 

testified about her involvement in his scheme. On June 30, StewartSatterwhite and her cousin Alysha Stevens6 met Murphy, who told 

Stewart-Satterwhite she needed to go into a bank to deposit a check 

for him. Stewart-Satterwhite refused, but Murphy took a gun from the 

glove compartment of his car and pressed the barrel into her side. At 

that point, Stewart-Satterwhite agreed. At Murphy’s direction, 

Stevens then drove Stewart-Satterwhite to a BECU branch in his car.

Initially, Stewart-Satterwhite attempted to deposit the check at 

the drive-through teller. The teller told them the large amount of the 

check required deposit inside the bank. Stewart-Satterwhite texted 

this information to Murphy, who told her to “remain calm” and delete 

their messages. When Stewart-Satterwhite and Stevens went into 

the bank, they were escorted into an office to speak with two BECU 

employees, including financial crime investigator Trichell Avaava. 

Eventually, Stewart-Satterwhite explained the situation. 

Stewart-Satterwhite was worried about returning to Murphy 

without the cash. In response, Avaava enacted a plan. Avaava wrote 

Stewart-Satterwhite a false receipt that showed the deposit was 

pending in her account and would be available after the upcoming 

July 4 holiday. Stewart-Satterwhite showed the receipt to Murphy 

and told him that BECU wanted her to go into the branch after July 4 

to sign for the large amount of money. Murphy told StewartSatterwhite to comply. 

On July 7, the day the money was supposed to be available, 

Stewart-Satterwhite was with Detective Fry and exchanged 

 5 Automated teller machine.

6 Stevens and Murphy are not related.
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messages with Murphy. When Murphy met Stewart-Satterwhite to 

pick up his money, officers arrested him. 

The State charged Murphy with one count of attempted theft 

in the first degree and assault in the second degree with firearm 

enhancements related to the incident involving Stewart-Satterwhite. 

The State charged him with three additional counts of attempted theft 

in the first degree stemming from the activities with Tinoco, Sneed, 

and Barker-Henry. Due to his criminal history, the State also charged 

Murphy with [UFP1]. A jury convicted Murphy as charged. With an 

offender score of 10, the court imposed a concurrent high-end 

standard-range sentence of 170 months of confinement.

Id. at 2-5.

On direct appeal, Murphy argued that (1) the trial court erroneously denied 

his motion to bifurcate or sever the UPF1 count from the other five counts, (2) the 

prosecutor committed misconduct by improperly commenting on his right to remain 

silent, (3) his counsel was ineffective for failing to raise various objections, (4) 

cumulative error deprived him of a fair trial, and (5) sufficient evidence did not 

support his convictions. We affirmed. Id. at 16. 

Murphy then timely filed this personal restraint petition (PRP) in which he 

raised numerous claims, nine of which were referred to the panel by order of this 

court.7

ANALYSIS

I. Standards for Collateral Relief

“To obtain relief from a PRP based on a constitutional error, a petitioner 

must show two things: (1) a constitutional error occurred and (2) the error resulted 

in actual and substantial prejudice.” In re Pers. Restraint of Williams, 198 Wn.2d 

 7 Order Dismissing Personal Restraint Petition in Part and Referring Remaining Claims to 

a Panel of Judges, In re Pers. Restraint of Murphy, No. 83195-0-I (Wash. Ct. App. July 10, 2023). 
No. 83195-0-I/5

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342, 353, 496 P.3d 289 (2021). The petitioner must demonstrate such prejudice 

by a preponderance of the evidence. In re Pers. Restraint of Davis, 152 Wn.2d 

647, 671-72, 101 P.3d 1 (2004). In other words, the “petitioner has the burden of 

establishing that, more likely than not, he was actually prejudiced by the claimed 

error.” In re Pers. Restraint of Hews, 99 Wn.2d 80, 89, 660 P.2d 263 (1983). “But 

‘bare allegations unsupported by citation of authority, references to the record, or 

persuasive reasoning cannot sustain this burden of proof.” In re Pers. Restraint of 

Pheth, 20 Wn. App. 2d 326, 332, 502 P.3d 920 (2021) (quoting State v. Brune, 45 

Wn. App. 354, 363, 725 P.2d 454 (1986)). Actual prejudice is determined “in light 

of the totality of circumstances.” In re Pers. Restraint of Music, 104 Wn.2d 189, 

191, 704 P.2d 144 (1985). If the petitioner fails to make this prima facie showing, 

the “petition will be dismissed.” In re Pers. Restraint of Cook, 114 Wn.2d 802, 810, 

792 P.2d 506 (1990). 

The standard of review on nonconstitutional claims is different and a “mere 

showing of prejudice” is insufficient. Davis, 152 Wn.2d at 672. Nonconstitutional 

errors are only considered when “‘the claimed error constitutes a fundamental 

defect which inherently results in a complete miscarriage of justice.’” Id. (quoting 

Cook, 114 Wn.2d at 813).

II. Ineffective Assistance of Counsel

Because Murphy contends that his trial and appellate counsel were both 

ineffective for failing to raise the various claims he now asserts in this PRP, we set 

out the ineffective assistance of counsel (IAC) standards here and apply them at 

the conclusion of each substantive challenge wherein Murphy also alleges IAC.
No. 83195-0-I/6

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“The Sixth Amendment to the United States Constitution and article I, 

section 22 of the Washington Constitution guarantee the right to effective 

assistance of counsel.” State v. Grier, 171 Wn.2d 17, 32, 246 P.3d 1260 (2011). 

Pursuant to Strickland v. Washington, a successful IAC claim requires the 

defendant to make two fundamental showings: “First, the defendant must show 

that counsel’s performance was deficient. . . . Second, the defendant must show 

that the deficient performance prejudiced the defense.” 466 U.S. 668, 687, 104 S. 

Ct. 2052, 80 L. Ed. 2d 674 (1984). “If either element of the test is not satisfied, the 

inquiry ends.” State v. Kyllo, 166 Wn.2d 856, 862, 215 P.3d 177 (2009). If a PRP 

satisfies the two-part Strickland test, the “petitioner has necessarily met the burden 

of proving ‘actual and substantial prejudice’” for collateral relief. In re Pers. 

Restraint of Crace, 174 Wn.2d 835, 845, 280 P.3d 1102 (2012).

The first prong of the test requires the defendant to demonstrate that 

counsel’s representation was deficient. State v. McFarland, 127 Wn.2d 322, 334, 

899 P.2d 1251 (1995). To meet this burden, they must show that counsel’s 

performance “fell below an objective standard of reasonableness based on 

consideration of all the circumstances.” Id. at 334-35. We apply “a strong 

presumption [that] counsel’s representation was effective.” Id. at 335. “When 

counsel’s conduct can be characterized as legitimate trial strategy or tactics, 

performance is not deficient.” Kyllo, 166 Wn.2d at 863.

The second prong of the test requires the defendant to show that “counsel’s 

deficient representation prejudiced the defendant, i.e., there is a reasonable 

probability that, except for counsel’s unprofessional errors, the result of the 
No. 83195-0-I/7

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proceeding would have been different.” McFarland, 127 Wn.2d at 335. “A 

reasonable probability is a probability sufficient to undermine confidence in the 

outcome.” Strickland, 466 U.S. at 694. In determining whether the identified errors 

resulted in such prejudice, we presume, “absent challenge to the judgment on 

grounds of evidentiary insufficiency, that the judge or jury acted according to law.” 

Id. at 695. 

To prevail on an IAC claim concerning appellate counsel, the petitioner 

“must demonstrate the merit of any legal issue appellate counsel raised 

inadequately or failed to raise” and also “demonstrate actual prejudice.” In re Pers. 

Restraint of Netherton, 177 Wn.2d 798, 801, 306 P.3d 918 (2013); In re Pers. 

Restraint of Lord, 123 Wn.2d 296, 314, 868 P.2d 835 (1994). “Failure to raise all 

possible nonfrivolous issues on appeal is not ineffective assistance.” Lord, 123 

Wn.2d at 314. But “if a petitioner can show that [their] appellate counsel failed to 

raise an issue with underlying merit, then the first prong of the ineffective 

assistance test is satisfied.” In re Pers. Restraint of Dalluge, 152 Wn.2d 772, 787, 

100 P.3d 279 (2004). To satisfy the prejudice prong, the petitioner must “show a 

reasonable probability that, but for [their] counsel’s unreasonable failure to file a 

merits brief, [they] would have prevailed on [their] appeal.” Smith v. Robbins, 528 

U.S. 259, 285, 120 S. Ct. 746, 145 L. Ed. 2d 756 (2000).

III. Invalid Search Warrant

Murphy’s first claim is that warrant no. 16-717 violated his constitutional 

rights under the Fourth Amendment to the United States Constitution and article I, 

section 7 of the Washington Constitution because it was overbroad and not 
No. 83195-0-I/8

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particularized. The State concedes that the search warrant was invalid for lack of 

particularity,

8 but argues that Murphy is not entitled to relief because he failed to 

demonstrate actual and substantial prejudice in light of the “overwhelming 

untainted evidence to prove each charge.”

“Both the Fourth Amendment and article I, section 7 require that a search 

warrant describe with particularity the place to be searched and the persons or 

things to be seized.” State v. Vance, 9 Wn. App. 2d 357, 363, 444 P.3d 1214 

(2019); see also State v. Riley, 121 Wn.2d 22, 28, 846 P.2d 1365 (1993) (warrants 

must “describe with particularity the things to be seized”). The particularized 

description of the “things to be seized” must be “in the warrant, not in the supporting 

documents.” Groh v. Ramirez, 540 U.S. 551, 557, 124 S. Ct. 1284, 157 L. Ed. 2d 

1068 (2004). Otherwise, the warrant is invalid on its face and per se 

unconstitutional. Id.

Here, Detective Robin Fry submitted an affidavit for a search warrant in 

which she identified five cell phones that she believed contained evidence of 

Murphy’s alleged crimes. In support of a finding of probable cause, the affidavit 

included a detailed narrative that there was “evidence of those crimes” on the 

identified cell phones. However, the search warrant that was ultimately issued 

made no particularized reference as to which cell phones were to be searched. 

Although courts “may construe a warrant with reference to a supporting application 

or affidavit if the warrant uses appropriate words of incorporation, and the 

supporting document accompanies the warrant,” Id. at 557-58, the affidavit here 

 8 Because the State correctly concedes the warrant was constitutionally invalid for lack of 

particularity, we do not consider Murphy’s additional argument that the warrant was also overbroad.
No. 83195-0-I/9

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did not accompany the warrant. Accordingly, the State’s concession is correct; the 

warrant was facially invalid.

A. Actual and Substantial Prejudice

On direct appeal, “if trial error is of constitutional magnitude, prejudice is 

presumed and the State bears the burden of proving it was harmless beyond a 

reasonable doubt.” State v. Coristine, 177 Wn.2d 370, 380, 300 P.3d 400 (2013). 

To determine whether the error was harmless, this court applies the 

“‘overwhelming untainted evidence test.’” State v. Elwell, 199 Wn.2d 256, 270, 

505 P.3d 101 (2022) (internal quotation marks omitted) (quoting State v. 

Thompson, 151 Wn.2d 793, 808, 92 P.3d 228 (2004)). Generally, under that test, 

it is the State’s burden to show beyond a reasonable doubt that the untainted 

evidence admitted at trial was “‘so overwhelming that it necessarily leads to a 

finding of guilt.’” Id. (quoting Thompson, 151 Wn.2d at 808). However, on 

collateral review, “we shift the burden to the petitioner to establish that the error 

was not harmless; in other words, to establish that the error was prejudicial.” In re 

Pers. Restraint of Hagler, 97 Wn.2d 818, 826, 650 P.2d 1103 (1982). Thus, 

Murphy must show by a preponderance of the evidence that he was actually and 

substantially prejudiced by the warrantless search. See Davis, 152 Wn.2d at 671-

72.

Murphy points to the following evidence that was retrieved from his phone: 

the photo of a Makarov handgun next to Barker-Henry’s debit card, text messages 

between himself and his friend, Zaheed Lynch, and between himself and Aviel 

Marie, the registered owner of the Dodge Challenger. In his opening brief, 
No. 83195-0-I/10

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Murphy’s entire argument on the prejudice aspect of this assignment of error is 

constrained to two paragraphs in which he identifies Stewart-Satterwhite’s 

testimony that the gun in the photograph was similar to the one Murphy had pointed 

at her and asserts that the State’s arguments at trial were based on the text 

messages from the phone. According to Murphy, his cell phone “contained a trove 

of prejudicial information” that was used against him at trial and all of that evidence 

was “extremely prejudicial.” However, Murphy offers only one sentence from the 

State’s closing argument in which it quoted a text from Murphy’s phone and stated,

“[f]ind a bitch with a BECU account and we can hit it for $15K,” and does not specify 

which counts were impacted or otherwise provide argument as to the nature of the 

asserted prejudice. Such allegations without “citation of authority, references to 

the record, or persuasive reasoning” are insufficient to meet his burden of proving 

actual and substantial prejudice. Pheth, 20 Wn. App. 2d at 332. Accordingly, 

Murphy is not entitled to collateral relief on this basis.

B. IAC Stemming from Invalid Search Warrant

The State asserts that “a timely motion to suppress the evidence found only 

on Murphy’s phones would likely have been granted” and concedes that “trial 

counsel’s failure to challenge the cell phone search warrant was deficient.”9 We 

agree. However, Murphy must also establish prejudice under the Strickland

standard in order to obtain relief. Crace, 174 Wn.2d at 845. To do so, he “must 

show that there is a reasonable probability that, but for counsel’s unprofessional 

errors, the result of the proceeding would have been different.” Strickland, 466 

 9 We accept this concession as the warrant was unconstitutional on its face. 
No. 83195-0-I/11

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U.S. at 694. Under this framework, the issue is whether Murphy has shown that 

the evidence obtained as a result of the invalid search warrant is “sufficient to 

undermine confidence in the outcome.” Id.

In his opening petition, Murphy provides no prejudice argument under the 

Strickland standard regarding the evidence obtained through the defective 

warrant; he merely states that his trial counsel “failed to file a suppression motion 

based upon the defective search warrant” (a fact conceded by the State) and “trial 

counsel’s failure to raise a suppression motion was ineffective” (a legal conclusion 

without supporting analysis).10 In his reply brief, Murphy dedicates substantial 

argument as to the State’s reliance on the cell phone evidence and its “prejudicial”

effect on the proceeding under Strickland. But this argument “raised for the first 

time in a reply brief is too late for consideration.” State v. Pervez, 15 Wn. App. 2d 

265, 272 n.11, 478 P.3d 103 (2020). Accordingly, we decline to reach the merits 

 10 Murphy also opines that the State committed a violation under Brady v. Maryland, 373 

U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963), because it had actual knowledge of the defects 

in the warrant and thus had an obligation to disclose those defects to Murphy’s trial counsel, who 

“would have [then] filed a suppression motion.”

To establish a Brady violation, Murphy has the burden to demonstrate the three following 

elements: “[(1)] The evidence at issue must be favorable to the accused either because it is 

exculpatory, or because it is impeaching; [(2)] that evidence must have been suppressed by the 

State, either willfully or inadvertently; and [(3)] prejudice must have ensued.” Strickler v. Greene, 

527 U.S. 263, 281-82, 119 S. Ct. 1936, 144 L. Ed. 2d 286 (1999). As our Supreme Court has 

explained, “if the means of obtaining the exculpatory evidence has been provided to the defense, 

the Brady claim fails.” State v. Mullen, 171 Wn.2d 881, 896, 259 P.3d 158 (2011) (quoting United 

States v. Dupuy, 760 F.2d 1492, 1501 n.5 (9th Cir. 1985).

Murphy does not contend that the State failed to disclose either the facially invalid warrant

or the affidavit upon which it was based. As Murphy had access to both and failed to file a 

suppression motion, this does show that his trial counsel performed deficiently, but it does not show 

that the State committed a violation of Brady. Even assuming arguendo that the State was 

obligated to disclose its opinions and conclusions as to the validity of the warrant, i.e., its work 

product under CrR 4.7(f)(1), Murphy’s claim would still fail as he does not show prejudice. 
No. 83195-0-I/12

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of Murphy’s IAC claim as it relates to the alleged prejudice resulting from the invalid 

warrant.11

IV. Sufficiency of Evidence in Counts 4, 5, and 6

Murphy argues that counts 4, 5, and 6 should be vacated on sufficiency 

grounds because none of the individual transactions relied upon for those counts 

exceeded the $5,000 threshold under the theft statute and the jury was not 

instructed to aggregate the amounts.

When a conviction is based on insufficient evidence, it violates “the due 

process clause of the Fourteenth Amendment and thus results in unlawful 

restraint.” In re Pers. Restraint of Martinez, 171 Wn.2d 354, 364, 256 P.3d 277 

(2011). “The test for determining the sufficiency of the evidence is whether, after 

viewing the evidence in the light most favorable to the State, any rational trier of 

fact could have found guilt beyond a reasonable doubt.” State v. Salinas, 119 

Wn.2d 192, 201, 829 P.2d 1068 (1992). “A claim of insufficiency admits the truth 

of the State’s evidence and all inferences that reasonably can be drawn therefrom.” 

State v. Spruell, 57 Wn. App. 383, 385, 788 P.2d 21 (1990). “[Q]uestions of 

credibility, persuasiveness, and conflicting testimony must be left to the jury.” 

Martinez, 171 Wn.2d at 364.

In counts 4, 5, and 6, the State charged Murphy with attempted theft in the 

first degree pursuant to RCW 9A.56.030(1)(a). The jury was instructed that theft 

 11 It is noteworthy that in Murphy’s direct appeal, we rejected his sufficiency claims without 

mentioning any of the evidence obtained through the warrantless cell phone search. See Murphy, 

slip op. at 14.
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in the first degree requires “theft of property exceeding $5,000 in value.”12 “Theft”

was defined as follows: “to wrongfully obtain the property of another, with intent to 

deprive that person of such property, or by color or aid of deception, to obtain 

control over the property of another, with intent to deprive that person of such 

property.”13 Further, the instructions provided that “[w]henever any series of 

transactions that constitutes theft is part of a common scheme or plan, then the 

sum of the value of all transactions shall be the value considered in determining 

the degree of theft involved.” The language of the to-convict instructions14 required 

the State to prove beyond a reasonable doubt that, with the intent to commit theft 

in the first degree, Murphy did an act that constituted a substantial step15 toward 

the commission of that crime. 

Murphy asserts “there was no evidence of a substantial step towards the 

commission of or intent to commit theft of over $5,000.” 

A. Count 4—BECU and Barker-Henry

Barker-Henry recalled planning to meet up with Murphy at the BECU in 

Tukwila on June 15, 2016. That day, they met at a Starbucks in the area before 

Murphy drove her to BECU. Barker-Henry explained that Murphy told her to walk 

into the BECU and deposit a check for $2691.34 into her account. Murphy gave 

her the check, made out to her name, and she walked into the BECU branch, 

 12 This language aligns with the statutory definition provided in RCW 9A.56.030(1)(a). The 

jury was also instructed that “value” means “the market value of the property at the time and in the 

approximate area of the act.”

13 This follows the statutory definition under RCW 9A.56.020(1).

14 “Criminal attempt” is defined under RCW 9A.28.020(1) and matches the jury instruction 

provided here.

15 A “substantial step” was defined as “conduct that strongly indicates a criminal purpose 

and that is more than mere preparation.”
No. 83195-0-I/14

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handed the check to the bank teller, and asked to deposit the check. When the 

teller realized the check was fake, Barker-Henry briefly conversed with BECU 

security and Tukwila police before leaving the bank. She also confirmed through 

security camera photographs, taken from the ATM on that same day at around the 

same time, that Murphy had attempted to use her ATM card to deposit another 

check for $2,579.61 in her name into her BECU account. A financial crime 

investigator for BECU, Trichell Avaava, also testified to the aforementioned 

deposits and confirmed the location and amount of both. Based on those two 

attempted transactions, Avaava assessed BECU’s total exposure to be $5,270.95.

B. Count 5—BECU and Sneed

Sneed testified that she had a conversation with Murphy in which he 

requested her full name, address, and phone number. The following day, Murphy 

drove Sneed and Tinoco to Federal Way and went into some apartments where 

he picked up an envelope full of checks. Sneed explained that “[a] lot” of those 

checks had her name on them. Others were in Tinoco’s name. Sneed stated that 

she and Tinoco were instructed to go into different banks and cash the checks, 

which they did. Tinoco recalled depositing one check for $2,674.30 into an ATM 

and another for $2,370.85 inside of a bank. Avaava verified the amount of the first 

transaction, which was made at a BECU ATM, and the second, which was made 

at the BECU Everett branch. Avaava’s assessment was that the total exposure to 

BECU was $5,065.15.
No. 83195-0-I/15

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C. Count 6—BECU and Tinoco

Tinoco testified that Murphy asked for her identification and told her she 

would get $6,000 in advance for modeling work. Murphy and “Marcus”16 explained 

to Tinoco that “they would just give [her] checks, and they would just give [her] it 

in cash.” They also told Tinoco that they needed her to deposit and cash the 

checks because “their accounts were full.” Tinoco recalled going to Murphy’s dad’s 

house in Federal Way with Sneed, Murphy, and Marcus. She stated that Murphy 

and Marcus told her and Sneed to stay in the car while they went into an apartment, 

and when they came back to the car, Murphy and Marcus showed them two checks 

that were made out to Tinoco and Sneed. Tinoco recalled obtaining about $9,000 

or $10,000 from cashing checks in her BECU account. While she “believed it was 

two” checks that made up the total amount, the State introduced copies of four 

checks made out to and signed by Tinoco. The checks were for $2,388.64, 

$2,480.56, $2,587.61, and $2,351.84. Avaava verified that all four checks were 

used in transactions with BECU and the total loss or exposure to BECU was 

$9,808.65.

Viewed in the light most favorable to the State, the evidence shows that

Murphy made multiple substantial steps towards theft in the first degree as to each 

of these separate victims. Though the transactions were not all successful, a 

reasonable juror could conclude that Murphy had the intent to steal an amount 

over $5,000 when he obtained the women’s personal information, procured 

fraudulent checks in their names, provided those checks to the women, drove them

 16 “Marcus” is an associate of Murphy who did not testify.
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to various BECU locations, and directed them to deposit and cash the checks. 

Moreover, the value of the checks underlying each count exceeded the $5,000 

statutory threshold. Based on this evidence, a rational trier of fact could have 

concluded that Murphy was guilty beyond a reasonable doubt and thus, his claim 

of insufficiency fails as to these three counts.

V. To-Convict Instructions for Counts 1, 4, 5, and 6

Murphy next argues that the to-convict instructions for counts 1, 4, 5, and 6 

violated his rights to jury unanimity, due process of law, and notice of the charge. 

We disagree.

A. Omission of the Victims’ Names

Murphy asserts that the failure to name each of the victims in the to-convict 

instructions for counts 1, 4, 5, and 6 violated his constitutional rights to notice of 

the charge and juror unanimity.

“Accused persons have the constitutional right to know the charges against 

them.” State v. Pry, 194 Wn.2d 745, 751, 452 P.3d 536 (2019); U.S. CONST. 

amend. VI; WASH. CONST. art. I, § 22. The State provides notice of charges by the 

filing of an information, which must set “forth every essential statutory and 

nonstatutory element of the crime.” Id. An element is essential if it “‘is one whose 

specification is necessary to establish the very illegality of the behavior.’” Id. at 

752 (quoting State v. Johnson, 119 Wn.2d 143, 147, 829 P.2d 1078 (1992)). “[I]n 

cases of theft and larceny proof of ownership of the stolen property in the specific 

person alleged is not essential,” and thus, the victim’s name is “not a necessary 
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element of a theft instruction.” State v. Lee, 128 Wn.2d 151, 159, 904 P.2d 1143 

(1995). However, “allegations of ownership must be sufficiently stated in an 

information to establish that the property was not that of the accused.” Id.

While the to-convict instructions for attempted theft in the first degree as 

charged in counts 1, 4, 5, and 6 did not specify the alleged victims, the second 

amended information did. As the charging document sufficiently stated that the 

property at issue was not Murphy’s, the State provided proper notice of the 

charges. 

Murphy also argues that the jury could have based the convictions on 

government entities not named in the charging document because no instruction 

was given about the “allocation of loss between BECU, the four women, and the 

entities whose checks were forged.” Because government entities cannot be 

victims of theft under RCW 9A.56.020, Murphy avers that the evidence was 

insufficient to support these counts. His argument is unpersuasive.

When the parties discussed the to-convict instructions for attempted theft in 

the first degree prior to closing arguments, defense counsel objected to the State’s 

proposed instructions based on the failure to specifically name the alleged victims. 

The State, which proposed WPIC 100.02,

17 assured that it would “be making very 

 17 WPIC 100.02 provides the following: 

To convict the defendant of the crime of attempted (fill in crime), each of the 

following elements of the crime must be proved beyond a reasonable doubt:

(1) That on or about (date), the defendant did an act that was a substantial 

step toward the commission of (fill in crime);

(2) That the act was done with the intent to commit (fill in crime); and
No. 83195-0-I/18

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clear elections during closing with respect to [c]ounts 1, 4, 5, and 6, and which 

checks and which young woman’s actions those are corresponding to.” The trial 

court accepted the State’s proposed instructions.

During closing arguments, the State explained to the jury that “under each 

of these counts, you are given the responsibility of gathering together, of summing 

up the value of the transactions under each of the accounts,” which is “why we’ve 

separated these counts by the woman involved and the bank account involved.” 

For each count of attempted theft, the State specified the victim whose BECU 

account was used along with the fraudulent checks relied upon. Because the State 

made clear elections by expressly naming the alleged victims for each count and 

Murphy provides no support for his contention that the jury would have disregarded 

those elections and based the convictions on government entities as the victims, 

his argument fails.

Murphy next argues that the lack of named victims in the instructions 

violated his right to a unanimous jury verdict under State v. Stephens, 93 Wn.2d 

186, 190-91, 607 P.2d 304 (1980). He is mistaken. Stephens was “charged with 

one count of assault against two victims conjunctively,” i.e., the instruction provided 

that the “jury must find ‘the defendant knowingly assaulted Richard Heieck or

 

(3) That the act 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.

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

doubt as to any one of these elements, then it will be your duty to return a verdict 

of not guilty.

11A WASHINGTON PRACTICE: WASHINGTON PATTERN JURY INSTRUCTIONS: CRIMINAL 100.02, at 492 

(5th Ed. 2021).
No. 83195-0-I/19

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Norman Jahnke.” Id. at 189. That instruction was erroneous as it “allowed 

conviction if, e.g., six jurors believed Stephens assaulted Jahnke and six believed 

he assaulted Heieck.” Id. at 190. The court explained that “[t]he instruction, in 

effect, split the action into two separate crimes . . . while the information charged 

only one.” Id. Accordingly, the court held that this instruction violated Stephens’

right to a unanimous jury verdict. Id. at 190-91. Here, however, the instructions 

did no such thing; the acts alleged by the State were not set out in the conjunctive 

and none of the instructions split any one action into more than one crime. Rather, 

the instructions remained in line with the second amended information and, at 

closing argument, the State clearly identified which victim’s BECU account was at 

issue in each separate count.

Notably, Murphy’s argument that the to-convict instructions were required 

to name the alleged victims is directly contradicted by State v. Lee, 128 Wn.2d at 

159.18 There, the State charged Lee with theft in the second degree and though 

the information included the names of the victims, the to-convict instructions did 

not. Id. at 154. On appeal, Lee argued that the trial court erred by not instructing 

the jury to unanimously agree on the identity of the theft victim. Id. at 156. Our 

Supreme Court disagreed and explained that the name of the person whose 

property was stolen is not an element of the crime and thus the instructions are not 

required to name the victim. Id. at 158-59. In theft and larceny cases, “[t]he State 

 18 Murphy considers this portion of Lee to be nonbinding dicta because the court ultimately 

reversed Lee’s conviction on sufficiency grounds. However, as the State notes, the discussion of 

the unanimity issue in Lee is persuasive and directly on point here. See also, State v. Greathouse, 

113 Wn. App. 889, 902, 56 P.3d 569 (2002) (“Lee does not stand for the proposition that an 

information that fails to state the name of the owner of the stolen property is constitutionally 

deficient.”).
No. 83195-0-I/20

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is required to prove only that [the property] belonged to someone other than the 

accused.” Id. at 159. Accordingly, the court held “there was no error in failing to 

include the names of the victims in the ‘to convict’ instruction” and “no unanimity 

instruction regarding the victim’s identity was needed.” Id. at 158, 160. The same 

is true here.19

Murphy also claims that his right to a unanimous verdict was violated 

because the State did not elect the underlying acts it relied on to demonstrate a 

“substantial step” and the court did not provide an instruction pursuant to State v. 

Petrich, 101 Wn.2d 566, 569, 683 P.2d 173 (1984). “Washington requires 

unanimous jury verdicts in criminal cases.” Stephens, 93 Wn.2d at 190. “[A] 

defendant may be convicted only when a unanimous jury concludes that the 

criminal act charged in the information has been committed.” Petrich, 101 Wn.2d 

at 569. Thus, “[w]hen the prosecution presents evidence of several acts that could 

form the basis of one count charged, either the State must tell the jury which act 

to rely on in its deliberations or the court must instruct the jury to agree on a specific 

criminal act.” State v. Kitchen, 110 Wn.2d 403, 409, 607 P.2d 304 (1980). 

However, neither an election nor unanimity instruction is required when the counts 

are based on “a continuing course of conduct.” Petrich, 101 Wn.2d at 571. “To 

determine whether criminal conduct constitutes one continuing act, the facts must 

be evaluated in a commonsense manner.” State v. Handran, 113 Wn.2d 11, 17, 

 19 Murphy urges this court to disregard Lee’s discussion of the jury instruction issues 

because, he contends, it is at odds with two subsequent Supreme Court decisions, Blakely v. 

Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004) and Apprendi v. New Jersey, 

530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000). Both cases are inapposite and neither 

requires the to-convict instructions for theft to name the victims. Thus, we follow the reasoning set 

out in Lee.
No. 83195-0-I/21

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775 P.2d 453 (1989). “Where evidence involves conduct at different times and 

places, or different victims, then the evidence tends to show several distinct acts.” 

State v. Love, 80 Wn. App. 357, 361, 908 P.2d 395 (1996). Conversely, evidence 

of “an ongoing enterprise with a single objective” shows a continuing course of 

conduct. Id. at 361. 

Here, for each count of attempted theft in the first degree, the jury was 

instructed that, in order to convict Murphy, it must find that during the specified 

time period “the defendant did an act that was a substantial step toward the 

commission of Theft in the First Degree.” In closing argument, the State pointed 

to the evidence of numerous actions by Murphy, all of which targeted BECU 

through different “recruits.” These acts included recruiting the women, obtaining 

their personal information, providing them with fraudulent checks, driving them to 

the banks and ATMs, and explaining specifically how to conduct themselves when 

questions were asked. His conduct toward Stewart-Satterwhite took place 

between June 30 and July 7, 2016, that involving Barker-Henry on June 15, and 

as to both Sneed and Tinoco between June 10 and 13. Although each count 

related to a different person’s bank account, they all concerned the same banking 

institution, BECU. Moreover, while some of the steps were taken on different 

dates, they were all carried out within a brief period of time with largely 

synchronous orchestration. Looking at the evidence in a common-sense manner, 

these counts all involved a continuing course of conduct with a single objective:

taking funds from BECU with fraudulent checks by targeting multiple women. 
No. 83195-0-I/22

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Accordingly, counts 1, 4, 5, and 6 all constituted a continuing course of conduct 

and no unanimity instruction nor election was necessary.20

VI. Failure To Instruct on Common Scheme or Plan for Counts 4, 5, and 6

Murphy contends that counts 4, 5, and 6 must be vacated because the State 

aggregated the fraudulent transactions in order to meet the $5,000 threshold for 

theft in the first degree but the jury was not instructed on common scheme or plan. 

The State argues that if the instruction was required, Murphy invited the error as 

his proposed to-convict instructions were identical to those given to the jury. 

Pursuant to RCW 9A.56.010(21)(c), “the State can aggregate a series of 

transactions that constitute theft in one count and use the aggregate value of the 

transactions in determining the degree of theft.” State v. Hassan, 184 Wn. App. 

140, 146, 336 P.3d 99 (2014). Such aggregation is only allowed “if the State can 

show that the transactions are part of a criminal episode or a common scheme or 

plan.” Id. If the State does aggregate the value, “a common scheme or plan is an 

essential element of a crime that must be included in the information and in the toconvict instruction.” Id.

Here, the second amended information alleged that Murphy committed 

attempted theft in the first degree as a “series of transactions which were part of a 

criminal episode, continuing criminal impulse, and a common scheme or plan in 

which the sum value of the property or services did exceed $5,000.” Neither the 

 20 Murphy also argues that trial and appellate counsels’ respective failure to raise these 

issues at trial and on direct appeal constitutes ineffective assistance of counsel. However, as 

Murphy fails to show any error stemming from these issues, let alone resulting prejudice, his claims 

of ineffective assistance of counsel on this basis fail.
No. 83195-0-I/23

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State’s nor Murphy’s proposed to-convict instructions included the common 

scheme or plan element. Ultimately, the to-convict instructions did not require the 

jury to determine whether there was a common scheme or plan.

“When a defendant proposes an instruction that is identical to the instruction 

the trial court gives, the invited error doctrine bars an appellate court from reversing 

the conviction because of an error in that jury instruction.” State v. Summers, 107 

Wn. App. 373, 381, 28 P.3d 780 (2001), modified on recons. on other grounds, 43 

P.3d 526 (2002). The invited error doctrine applies in “every situation where the 

defendant’s actions at least in part cause the error.” Id. at 381-82. As our Supreme 

Court has noted, “There can be no doubt that this is a strict rule, but we have 

rejected the opportunity to adopt a more flexible approach.” State v. Studd, 137 

Wn.2d 533, 547, 973 P.2d 1049 (1999). Even when the instruction is 

unconstitutional and relieves the State of its burden to prove an essential element 

beyond a reasonable doubt, the invited error doctrine applies. Id. at 546-47. 

Because Murphy’s failure to both propose alternate instructions and to object to 

those given, contributed to the error, the invited error doctrine bars relief on this 

challenge.

A. Failure To Challenge Instructions as IAC

Murphy submits that his trial counsel and appellate counsel were both 

ineffective for failing to raise this issue in both levels of proceedings. “If 

instructional error is the result of ineffective assistance of counsel, the invited error 

doctrine does not preclude review.” Kyllo, 166 Wn.2d at 861.
No. 83195-0-I/24

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1. Trial Counsel

Murphy states that trial counsel “did not propose or object to the failure to 

give proper instructions.” Even assuming arguendo that trial counsel was deficient 

for failing to propose the common scheme or plan instruction with the to-convict 

instructions in order to allow the State to aggregate the amounts of the transactions 

at issue for counts 4, 5, and 6, Murphy does not demonstrate that this resulted in 

prejudice under the Strickland standard. Had Murphy’s trial counsel proposed the 

instruction it would have been provided to the jury. However, even assuming it 

had been, the evidence was overwhelming to show a common scheme or plan and 

to support the value of the transactions in each count. It is also unclear what 

strategic or tactical reason counsel could have to propose an instruction which 

would assist the State in proving the $5,000 threshold, which strongly suggests 

that both the decision not to object and to refrain from proposing an aggregation 

instruction were tactical defense choices. Accordingly, Murphy fails to show that 

there was a reasonable probability that but for trial counsel’s failure to propose the 

instruction, the outcome of the proceeding would have been different as to these 

counts.

2. Appellate Counsel

Murphy also claims his appellate counsel was ineffective based on the 

failure to raise this issue in his direct appeal. Assuming counsel had assigned 

error on this issue and satisfied RAP 2.5, Murphy shows no reasonable probability 

that the outcome would have been different. Murphy’s complete lack of argument 
No. 83195-0-I/25

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as to prejudice on this issue seems to demonstrate that he believes this would 

have required automatic reversal, but he would be mistaken. 

“Where a to-convict instruction omits an essential element of a crime, it is 

constitutionally defective unless the State can demonstrate that the omission was 

harmless beyond a reasonable doubt.” Hassan, 184 Wn. App. at 149. For the 

error to have been harmless on direct appeal, this court would have needed to 

“‘conclude beyond a reasonable doubt that the jury verdict would have been the 

same absent the error.’” State v. Brown, 147 Wn.2d 330, 341, 58 P.3d 889 (2002)

(quoting Neder v. United States, 527 U.S. 1, 19, 119 S. Ct. 1827, 144 L. Ed. 2d 35

(1999)). Murphy fails to establish that the verdict would not have been the same, 

which is his burden at this stage. As the evidence of a common scheme or plan 

and the value of the property involved in the attempted theft was overwhelming

and Murphy’s argument as to prejudice is inadequate, he has not shown a 

reasonable probability that the outcome on direct appeal would have been any 

different.

VII. Separate Convictions for Counts 1 and 2

Murphy contends that he was convicted and punished twice for the same 

act in counts 1 and 2, in violation of the constitutional prohibition against double 

jeopardy, and argues that those counts “should have merged or counted as the 

same criminal conduct.”21 We disagree.

 21 While Murphy asserts that “the two offenses were the same criminal conduct,” he 

provides insufficient analysis to warrant consideration of that distinct legal issue. He offers one 

citation to RCW 9.94A.589(1)(a), which provides the definition of same criminal conduct, but no 

accompanying argument as to how these offenses satisfy the statutory definition. “This court will 
No. 83195-0-I/26

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A. Double Jeopardy

“The double jeopardy clause of the Fifth Amendment to the United States 

Constitution and article I, section 9 of the Washington State Constitution prohibit 

the imposition of multiple punishments for the same offense.” State v. Tili, 139 

Wn.2d 107, 112, 985 P.2d 365 (1999). “Where a defendant’s act supports charges 

under two criminal statutes, a court weighing a double jeopardy challenge must 

determine whether, in light of legislative intent, the charged crimes constitute the 

same offense.” In re Pers. Restraint of Orange, 152 Wn.2d 795, 815, 100 P.3d 

291 (2004). When the statutes do not expressly disclose whether the legislature 

intended to authorize separate punishments, we “apply a rule of statutory 

construction that has been variously termed the ‘same elements’ test, the ‘same

evidence’ test, and the Blockburger test.” Orange, 152 Wn.2d at 816 (citing 

Blockburger v. United States, 284 U.S. 299, 52 S. Ct. 180, 76 L. Ed. 306 (1932)). 

Under the Blockburger test, “double jeopardy principles are violated if the 

defendant is convicted of offenses that are identical in fact and in law.” In re Pers. 

Restraint of Borrero, 161 Wn.2d 532, 537, 167 P.3d 1106 (2007). “If each offense 

contains an element not contained in the other, the offenses are not the same; if 

each offense requires proof of a fact that the other does not, the court presumes 

the offenses are not the same.” Id. When one of the crimes is an attempt crime, 

which requires the element of a “substantial step,” the test is slightly modified 

because in order to determine “whether each offense requires proof of a fact that 

the other does not, the ‘abstract’ term ‘substantial step’ must be given a factual 

 

not consider claims insufficiently argued by the parties.” State v. Elliott, 114 Wn.2d 6, 15, 785 P.2d 

440 (1990). Because Murphy offers no argument here, we do not reach the merits.
No. 83195-0-I/27

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definition.” Id. (quoting Orange, 152 Wn.2d at 818). That definition depends on 

the “actual facts constituting the ‘substantial step.’” Id. If the evidence is such that 

various acts could have been the “substantial step,” we do not assume that the 

jury relied on the one act that also proves the other crime. Id. at 538. For example, 

in State v. Esparza, this court determined there was no double jeopardy violation 

because the assault at issue “did not necessarily constitute the substantial step 

taken in furtherance of the robbery.” 135 Wn. App. 54, 63, 143 P.3d 612 (2006). 

As “there was other conduct proved at trial that did not constitute assault that would 

be sufficient to establish that [the accused] took a substantial step toward the 

commission of first degree robbery” and “it was not required for the State to prove 

facts sufficient to convict [the defendant] of second degree assault in order for it to 

prove [the defendant] committed the offense of first degree attempted robbery,”

there was no double jeopardy violation. Id. at 64.

Here, because the statutes for assault in the second degree, RCW 

9A.36.021, and attempted theft in the first degree, RCW 9A.28.020 and 9A.56.030,

do not provide express legislative intent for cumulative punishments, we apply the 

Blockburger test to determine whether the crimes are identical in fact and law. See

Borrero, 161 Wn.2d at 537. Murphy asserts that one act, pointing a gun at StewartSatterwhite, was relied upon for both the assault in the second degree in count 2 

and the “substantial step” towards attempted theft in the first degree in count 1.

However, during closing argument, the State pointed to numerous acts that 

the jury could rely on for Murphy’s substantial step in count 1:

On June 30th, he drove to the hospital—to the hospital parking lot to 

pick up [Stewart-Satterwhite] and [Stevens]. That was a substantial 
No. 83195-0-I/28

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step, that was conduct. He tried to convince [Stewart-Satterwhite] to 

deposit the check when the other part of the plan fell apart. He 

pointed a gun at her to force her to deposit the check, instructing 

[Stevens] to drive to the bank, providing a car, and providing 

[Stewart-Satterwhite] with a cover story about what to say, that this 

was a settlement from a car accident, and then waiting through July 

1st, 2nd, 3rd, 4th, 5th, and 6th. There’s some action in that waiting, 

keeping in communication with [Stewart-Satterwhite], making sure 

the plan was in place, and then going to the site, going to the location, 

the Days Inn, on the 7th is another substantial step to pick up the 

money.

Although the State told the jury that it could rely on the fact that Murphy pointed a 

gun at Stewart-Satterwhite, that was certainly not the only act for which the State 

presented evidence at trial. Because there was other conduct on which the jury 

could rely that constituted a substantial step towards theft in the first degree and it 

was not necessary for the State to prove that Murphy pointed a firearm at StewartSatterwhite in order to prove the attempted theft count, these convictions do not 

violate double jeopardy. Esparza, 135 Wn. App. at 63-64; Borrero, 161 Wn.2d at 

537-38.

B. Merger

Murphy next avers that counts 1 and 2 should have merged. Generally,

when “proof of one crime depends upon proof of another, the crimes will merge.” 

State v. Grant, 172 Wn. App. 496, 500, 301 P.3d 459 (2012). However, the merger 

doctrine “only applies where the Legislature has clearly indicated that in order to 

prove a particular degree of crime (e.g., first degree rape) the State must prove not 

only that a defendant committed that crime (e.g., rape) but that the crime was 

accompanied by an act which is defined as a crime elsewhere in the criminal 
No. 83195-0-I/29

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statutes (e.g., assault or kidnapping).” State v. Vladovic, 99 Wn.2d 413, 420-21, 

662 P.2d 853 (1983).

Because Murphy’s conviction for attempted theft was not raised to the first 

degree through the conduct that constituted assault against Stewart-Satterwhite,

but instead on the value of the property he attempted to steal pursuant to RCW 

9A.56.030(1)(a), the merger doctrine is inapplicable.

22

VIII. All Four Counts of Attempted Theft as Same Criminal Conduct

Murphy next avers that the four counts of attempted theft (counts 1, 4, 5, 

and 6) should be treated as one for sentencing purposes because, he contends,

they are based on the same criminal conduct. The State insists that Murphy has 

waived this challenge. In his reply brief, Murphy responds to the State’s waiver 

argument by noting that he “has raised ineffective assistance of counsel at 

sentencing and on appeal so the issue can be considered through that rubric.”

Same criminal conduct is defined in RCW 9.94A.589(1)(a), as follows:

Except as provided in (b), (c), or (d) of this 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 of RCW 9.94A.535. “Same criminal conduct,” as used in 

this subsection, means two or more crimes that require the same 

 22 Murphy asserts that the double jeopardy and merger arguments regarding counts 1 and 

2 “should have been raised at trial or on appeal” and “failure to do so was ineffective.” However,

as established, each of those constitutional challenges are without merit, and thus, Murphy 

necessarily fails to show ineffective assistance of counsel on these bases.
No. 83195-0-I/30

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criminal intent, are committed at the same time and place, and 

involve the same victim.

“In order for separate offenses to ‘encompass the same criminal conduct’ under 

the statute, three elements must therefore be present: (1) same criminal intent, (2) 

same time and place, and (3) same victim.” State v. Porter, 133 Wn.2d 177, 181, 

942 P.2d 974 (1997). The absence of any element prohibits a finding of same 

criminal conduct. Id. Here, a finding of same criminal conduct is plainly precluded 

as each count concerned a different victim: count 1—Stewart-Satterwhite; count 

2—Barker-Henry; count 3—Sneed; and count 4—Tinoco. Accordingly, Murphy’s 

claim fails.23 

IX. Additional Bases for IAC of Trial Counsel

Murphy raises two additional grounds on which he asserts his trial and 

sentencing were impacted by IAC. First, Murphy contends that trial counsel was 

ineffective for failing to object to “very prejudicial evidence.” “Only in egregious 

circumstances, on testimony central to the State’s case, will the failure to object 

constitute incompetence of counsel justifying reversal.” State v. Madison, 53 Wn. 

App. 754, 763, 770 P.2d 662 (1989). “The decision of when or whether to object 

is a classic example of trial tactics” and it is a legitimate trial tactic for counsel to 

forgo an objection when seeking to “avoid highlighting certain evidence.” Id.; State 

v. Crow, 8 Wn. App. 2d 480, 508, 438 P.3d 541 (2019). When a claim of IAC is 

 23 As Murphy does not establish any error, much less prejudice, he is unable to 

demonstrate deficient performance as to this same criminal conduct claim. Accordingly, his 

arguments that trial counsel was ineffective for not presenting a same criminal conduct argument 

at sentencing, and that appellate counsel was ineffective for not raising this issue in his direct 

appeal necessarily fail.
No. 83195-0-I/31

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based on counsel’s failure to object, “the defendant must show (1) an absence of 

legitimate strategic or tactical reasons supporting the challenged conduct; (2) that 

an objection to the evidence would likely have been sustained; and (3) that the 

result of the trial would have been different had the evidence not been admitted.” 

State v. Saunders, 91 Wn. App. 575, 578, 958 P.2d 364 (1998) (internal citations 

omitted). 

Instead of attempting to satisfy those requirements, Murphy merely 

identifies testimony and asserts, without analysis, that it should have been 

excluded under ER 403 and 404. He then concludes that “[i]t was ineffective not 

to object” and declares the “prejudice is apparent.” Such conclusory statements, 

unsupported by authority and persuasive reasoning, are insufficient to satisfy his 

burden. See Pheth, 20 Wn. App. 2d at 332. Under Strickland, it is Murphy’s 

burden to demonstrate both deficient performance and resulting prejudice and he 

fails to show either here. 

Second, Murphy avers his trial counsel was ineffective for failing to propose 

WPIC 6.05. WPIC 6.05 concerns accomplice testimony and it provides the 

following: 

Testimony of an accomplice, given on behalf of the [State] 

[City] [County], should be subjected to careful examination in the light 

of other evidence in the case, and should be acted upon with great 

caution. You should not find the defendant guilty upon such 

testimony alone unless, after carefully considering the testimony, you 

are satisfied beyond a reasonable doubt of its truth.

WASHINGTON PRACTICE: WASHINGTON PATTERN JURY INSTRUCTIONS: CRIMINAL 6.05, 

at 203 (5th Ed. 2021). This “cautionary instruction is required only if the accomplice 

testimony is uncorroborated.” State v. Willoughby, 29 Wn. App. 828, 831, 630 
No. 83195-0-I/32

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P.2d 1387 (1981). However, “where the accomplice testimony is corroborated by 

independent evidence, failure to give the instruction may not be error.” State v. 

Harris, 102 Wn.2d 148, 153, 685 P.2d 584 (1984), overruled in part on other 

grounds by State v. McKinsey, 116 Wn.2d 911, 810 P.2d 907 (1991). “If the 

accomplice testimony was substantially corroborated by testimonial, documentary 

or circumstantial evidence, the trial court did not commit reversible error by failing 

to give the instruction.” Id. at 155.

Murphy asserts that the instruction was mandatory in this case due to the 

“lack of any corroboration” of Stewart-Satterwhite’s allegations that Murphy 

pointed a gun at her. While Stewart-Satterwhite’s testimony was the basis of count 

2, assault in the second degree with a deadly weapon, she was the victim of that 

assault. Pursuant to RCW 9A.08.020(5), “a person is not an accomplice in a crime 

committed by another person if: (a) [They are] a victim of that crime.” Thus, 

Stewart-Satterwhite’s testimony concerning the assault in which she described 

Murphy pointing a gun at her does not implicate WPIC 6.05. But, even if Murphy 

could satisfy the deficient performance prong of the test on the failure to propose 

this instruction, which he does not, he still fails to demonstrate that it produced a 

reasonable likelihood of prejudice as to the count he identifies. Murphy then

broadly asserts that the collective impact of “all errors” shows a reasonable 

probability of prejudice under Strickland. He is incorrect.

24

 24 Murphy does not raise any additional bases for his claim of IAC by appellate counsel 

apart from those already addressed. Although the State concedes that “Murphy’s direct appeal 

was devoid of merit and poorly presented,” it asserts that Murphy has failed to show prejudice 

under Strickland. In accordance with our previous analysis, we agree with the State.
No. 83195-0-I/33

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X. Community Custody on Count 2

Finally, Murphy claims the trial court imposed a sentence that exceeded the 

statutory maximum for count 2, assault in the second degree, and requests an

order directing the trial court to strike the term of community custody. The State 

concedes the error and we agree.

Assault in the second degree is a class B felony with a maximum sentence 

“by confinement in a state correctional institution for a term of ten years.” RCW 

9A.36.021(2)(a); 9A.20.021(1)(b). Pursuant to RCW 9.94A.701(10), the term of 

community custody “shall be reduced by the court whenever an offender’s 

standard range term of confinement in combination with the term of community 

custody exceeds the statutory maximum for the crime as provided in RCW 

9A.20.021.”

Murphy’s offender score on count 2, which provided a maximum term of 120 

months, was 11 and his standard range was 63 to 84 months in prison. On count 

2, the court imposed 84 months of confinement to run consecutively with the 

mandatory firearm enhancement of 36 months for a total of 120 months of 

confinement. Because the court also imposed a term of community custody of “at 

least 4 months, plus all accrued earned early release time at the time of release,”

the sentence on count 2 exceeds the statutory maximum. Accordingly, the trial 

court must strike the community custody term from the judgment and sentence.

Because Murphy fails to show actual and substantial prejudice resulting 

from any of his claims, including those alleging ineffective assistance of trial and 
No. 83195-0-I/34

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appellate counsel, his petition is denied. However, we remand for the trial court to 

correct the judgment and sentence.

WE CONCUR:

_____________________________