Opinion
No. 32788-1-II.
October 10, 2006.
Appeal from a judgment of the Superior Court for Lewis County, No. 04-1-00323-1, David R. Draper, J., entered January 7, 2005.
Counsel for Appellant(s), Jodi R. Backlund, Backlund Mistry, 203 4th Ave E Ste 404, Olympia, WA, 98501-1189.
Manek R. Mistry, Backlund Mistry, 203 4th Ave E Ste 404, Olympia, WA, 98501-1189.
Counsel for Respondent(s), J. Andrew Toynbee, Lewis County Prosecuting Atty Ofc, 345 W Main St Fl 2, Chehalis, WA, 98532-4802.
Affirmed in part and reversed in part by unpublished opinion per Penoyar, J., concurred in by Houghton, C.J., and Armstrong, J.
Wade William Pierce appeals his convictions for burglary, theft, possession of a stolen firearm, robbery, assault, and unlawful possession of a controlled substance with intent to deliver. He claims that: (1) the information was deficient; (2) the evidence was insufficient for many of the counts; (3) he was denied the right to a unanimous jury verdict on the burglary and assault charges because the evidence was insufficient to support one or more of the alternative means of committing those offenses; (4) the jury instruction defining knowledge was improper; (5) the trial court improperly calculated his offender score; and (6) the firearm enhancement was improper. We affirm all the convictions except the possession of a stolen firearm conviction, which we reverse without prejudice because the information on that charge was deficient.
FACTS
Jerry Coble and his wife, Rosita, were awakened shortly before 5 a.m. on the morning of December 31, 2003, when an intruder shined a flashlight on them and ordered them to stay in bed and cover their heads. Jerry testified: "[T]he light was shining in first my eyes and in my wife's, back and forth, it shined on his own hand, and I saw what I interpreted to be a gun." 1 Report of Proceedings (RP) (Dec. 13, 2004) at 14. Jerry said he was "under the impression that [he] was being robbed by an armed individual." 1 RP at 14.
We use first names where it is necessary to avoid confusion. No disrespect is intended.
The Cobles covered their heads as directed while the robber ransacked the bedroom. Jerry could hear someone else in the living room, but he could not tell if it was a man or a woman, nor could he be sure how many people were there. He saw a woman look into the bedroom quickly.
On cross-examination, Jerry (age 73) acknowledged that neither he nor his wife were wearing their glasses. He said that it was too dark to identify the intruder in their bedroom and that the intruder had his face covered. Jerry also acknowledged that he was not absolutely positive that the intruder had a gun, saying, "[i]t could have been his finger and a piece of cardboard." 1 RP at 30. However, Jerry believed that it was a gun and "wasn't willing to bet my life that it was a piece of cardboard." 1 RP at 30.
Rosita said that she thought there were two intruders and that she heard the man in the bedroom talking to a woman in the living room. She also testified that the man in the bedroom was armed with a gun. On cross-examination, when asked how certain she was that the intruder had a gun, Rosita responded: "I'm not certain, but it looked like a gun, and I reacted as if it was a gun. It looked like a gun. He pointed it at me. He pointed it, the flashlight, to the gun. So I don't know anything about weapons, but to me it was a gun and it could kill us." 1 RP at 43.
Right after the robbers left, Rosita looked outside and saw a small black two-door car leaving their long driveway. Later she saw a similar car at the police evidence garage and learned that this car belonged to Pierce.
Police photographed shoe prints they found in the snow outside the Cobles' home. They also noted that the tire tracks in the driveway appeared to have been made by "mud-and-snow type tire[s]." 2 RP (Dec. 14, 2004) at 97. Police did not recover any usable fingerprints.
On the evening of February 7, 2004, Jack Cartwright went to the Paul Bunyon Tavern in Onalaska with his ex-girlfriend, Norma Woodard. Pierce came into the bar with his friend, Denise Secrist. Pierce had picked Woodard up from Cartwright's house a few weeks before when Cartwright and Woodard broke up. Secrist was Woodard's friend, but Cartwright said that he did not allow Secrist in his house because she had "sticky fingers." 1 RP at 63. Pierce and Secrist spoke briefly with Woodard then left quickly.
When Cartwright returned home from the bar later that evening, he discovered that his home had been broken into and six guns were stolen, along with some items belonging to his daughter.
The police did not find any usable fingerprints at the Cartwright house, although they did find two very distinct sets of footprints. They were also able to photograph the tire tracks in Cartwright's driveway.
Lewis County Sheriff's detective Bruce Kimsey began investigating Pierce as a suspect in the break-ins after receiving a Crime Stoppers' tip. He contacted Pierce at his residence on March 25 and asked some questions about the burglaries. Pierce's mother, Wanita Hidalgo, overheard part of the questioning.
Hidalgo testified that Pierce lived next to her until his ex-wife evicted him in April 2004. Pierce's ex-wife then informed Hidalgo that all of Pierce's things must be removed from the house. Hidalgo, her husband, Secrist, and a few other people removed things from the house and brought them over to Hidalgo's residence. Hidalgo said it was "[e]verybody's stuff. He had people renting rooms there. There was all kinds of stuff." 1 RP at 71. At the time, Secrist was living in a trailer next to Pierce's house, but she was soon evicted as well.
Pierce always had access to Hidalgo's garage and he stored some things there. Hidalgo came to suspect that some of the items in her house were stolen and she called the sheriff. In Hidalgo's spare bedroom and in the garage, Detective Kimsey found items taken from Cartwright and the Cobles, including Cartwright's shotgun. The police recovered other guns from Hidalgo's house, but they were not able to identify them as Cartwright's.
Kimsey questioned Pierce, showing him photos of the property recovered from his mother's house. Pierce asked the police if the guns in the pictures belonged to Cartwright and acknowledged that the shotgun had been at his own residence before his parents moved his things.
Pierce drove a black Ford Probe that the police impounded and searched. Inside the car, they found more items stolen from the Cobles. They found a .22 Ruger pistol and a magazine with multiple bullets zipped inside the passenger seat. They also found about 90 grams of methamphetamine, a scale, a syringe, and about a dozen small plastic bindles. They found a set of work boots with tread matching the tread pattern of one of the sets of footprints outside the Coble house. When Detective Kimsey went to Pierce's house he saw a set of tires with tread that appeared to match the tracks in the Cobles' driveway.
In a later interview, Pierce told Detective Kimsey that he had seen the shotgun under Cartwright's bed when Woodard had given him a tour of Cartwright's house. Pierce also said that he had seen Cartwright's firearms during this tour and that was why his fingerprints would be on Cartwright's guns. The police never recovered fingerprints from the guns. The guns they found at Hidalgo's house turned out not to belong to Cartwright.
When asked about the tire tracks in the Cobles' driveway, Pierce said that sometime around the robbery date, he had used the Cobles' driveway to turn around.
Pierce was charged with first degree burglary of the Cartwright residence (count I), theft of five firearms taken from Cartwright (counts II-VI), and possession of a stolen firearm (count VII). For the Cobles, Pierce was charged with first degree robbery (count VIII), first degree burglary (count IX), two counts of second degree assault (counts X and XI), and first degree theft (count XII). Finally, Pierce was charged with unlawful possession of a controlled substance with intent to deliver (count XIII).
After trial, the jury convicted Pierce on all counts. The special verdict forms asked the jury whether Pierce was "armed with, or in possession of a firearm at the time of the commission of the crime." Clerk's Papers (CP) at 175-81. By these special verdicts, the jury found that Pierce was armed with a firearm during the burglaries, during the possession of a controlled substance, and during the other crimes against the Cobles.
ANALYSIS I. Deficient Information on Possession of a Stolen Firearm
Pierce claims that the information charging him with possession of a stolen firearm (count VII) was insufficient because it did not allege that he knew that the gun was stolen. He claims that it is insufficient to allege that he knowingly possessed stolen property. He asks this court to dismiss count VII without prejudice.
The State concedes that the information was deficient and agrees that dismissal of this count without prejudice is the appropriate remedy. Therefore, we dismiss this count without prejudice.
II. Evidence that Pierce was Armed with a Deadly Weapon
Pierce claims that the evidence was insufficient to show that he was armed with a deadly weapon, an essential element of first degree burglary, first degree robbery, and second degree assault (counts I, VIII-XI). He says that even though firearms were taken from the Cartwright residence, no evidence established that he was personally armed with a deadly weapon at the time he committed any of these crimes.
Pierce also claims that neither of the Cobles was certain that the robbers actually had a pistol and that this uncertainty precludes a finding of proof beyond a reasonable doubt. He claims that even if one of the Cobles' robbers was armed, evidence was insufficient to establish that he was the armed intruder.
Pierce also argues that, because the evidence is not sufficient to show that he was armed with a deadly weapon, the evidence is also insufficient to support the firearm enhancement.
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). When the sufficiency of the evidence is challenged in a criminal case, all reasonable inferences from the evidence must be drawn in favor of the State and interpreted most strongly against the defendant. Salinas, 119 Wn.2d at 201. A claim of insufficiency admits the truth of the State's evidence and all inferences that reasonably can be drawn therefrom. Salinas, 119 Wn.2d at 201.
Credibility determinations are for the trier of fact and are not subject to review. State v. Camarillo, 115 Wn.2d 60, 71, 794 P.2d 850 (1990). We defer to the trier of fact on issues of conflicting testimony, credibility of witnesses, and the evidence's overall persuasiveness. State v. Lubers, 81 Wn. App. 614, 619, 915 P.2d 1157, review denied, 130 Wn.2d 1008 (1996). We accord circumstantial evidence equal weight with direct evidence. State v. Varga, 151 Wn.2d 179, 201, 86 P.3d 139 (2004).
We hold that the jury had sufficient evidence to find beyond a reasonable doubt that Pierce was armed with a firearm during the Coble incident. The Cobles testified that the intruder shined a light on his hand and that he held an item that looked like a firearm. At the very least, this provides circumstantial evidence that the intruder had a gun. When viewed in the light most favorable to the State, the evidence is sufficient to show that Pierce was armed with a firearm during these crimes.
Additionally, the footprint evidence and Pierce's own acknowledgment that the tire tracks came from his vehicle place Pierce at the crime scene so that a jury could reasonably conclude that he participated. Rosita Coble testified that she thought there were only two participants and one was a woman. When viewed in the light most favorable to the State, we hold that this evidence sufficiently supports the jury verdict.
Because sufficient evidence supports the deadly weapon element, and because the evidence shows that the weapon was a firearm, sufficient evidence supports the firearm enhancement.
We also hold that the jury had sufficient evidence to conclude that Pierce took part in the Cartwright burglary and that during the burglary he handled the shotgun stored under Cartwright's bed. Specifically, Pierce told Detective Kimsey that he knew Cartwright kept his shotgun under his bed and that his own fingerprints would be on Cartwright's guns. When viewed in the light most favorable to the State, the jury had sufficient circumstantial evidence to find beyond a reasonable doubt that Pierce participated in the Cartwright burglary and that he was armed with a deadly weapon because he handled one of the guns stolen during that crime. Thus, the evidence was sufficient to support this conviction of first degree burglary.
III. Evidence that Pierce Personally Stole Five Firearms from Cartwright
Pierce next claims that the evidence was insufficient to support his five convictions for theft of a firearm for the guns stolen from Cartwright. Pierce argues that the State's footprint evidence showed that at least two people participated in the Cartwright burglary. He argues that because no accomplice instruction was given, the jury had to find that he personally stole all five guns as alleged in counts II-VI.
We hold that the evidence is sufficient to convict Pierce of stealing all of the guns. In his conversation with Detective Kimsey, Pierce told Kimsey that his fingerprints would be on Cartwright's guns, including the shotgun under Cartwright's bed and the pistols taken from the drawers in Cartwright's bedroom. Therefore, the jury had sufficient evidence to conclude that Pierce handled all the guns.
IV. Evidence that Pierce Assaulted the Cobles
Pierce next claims that the evidence was insufficient to show that he assaulted Jerry Coble because only Rosita testified that the gun was pointed at her. He argues that a charge of assault may not be sustained based on the mere display of a firearm to Jerry without testimony that the intruder pointed the gun, waived the gun, or made any threatening gestures with it.
We hold that sufficient evidence supports the assault verdicts as to both Cobles. The State need not prove the exact trajectory of a hypothetical bullet to demonstrate an assault.
An assault is . . . an act, with unlawful force, done with the intent to create in another apprehension and fear of bodily injury, and which in fact creates in another a reasonable apprehension and imminent fear of bodily injury even though the actor did not actually intend to inflict bodily injury.
State v. Rivas, 97 Wn. App. 349, 352, 984 P.2d 432 (1999), review denied, 140 Wn.2d 1013 (2000). Pierce is correct that mere display of a firearm may not be sufficient. See State v. Eastmond, 129 Wn.2d 497, 499, 919 P.2d 577 (1996) (the factual dispute at trial concerned whether the defendant pointed his gun menacingly at a restaurant cashier or whether he tried to check the weapon by handing her the butt of the gun). Pointing a gun in a person's general direction is another matter. State v. Karp, 69 Wn. App. 369, 374, 848 P.2d 1304, review denied, 122 P.2d 1005 (1993).
Pierce confuses unlawful display with assault. The unlawful display statute may be violated even if the actor's conduct is not directed at any person. Karp, 69 Wn. App. at 374. It is enough that a weapon is displayed under circumstances, and at a time and place, that warrant alarm for the safety of other persons. Karp, 69 Wn. App. at 374. For example, a demonstrator might carry a baseball bat on a public street under circumstances that would cause a person to be concerned about the safety of other persons on the street. Karp, 69 Wn. App. at 374. It would not, however, be an assault unless the act was directed at some person and the actor had the apparent physical ability to inflict harm. Karp, 69 Wn. App. at 374.
In contrast, the jury here had testimony that a stranger entered the Cobles' bedroom in the pre-dawn darkness and pointed what appeared to be a gun at them so that both Jerry and Rosita were put in fear of being shot. Therefore, the jury had sufficient evidence that Pierce assaulted the Cobles.
V. Evidence of Possessing Methamphetamine with Intent to Deliver
Pierce next claims that the evidence was insufficient to show that he intended to deliver methamphetamine as alleged in count XIII. He claims that the State presented nothing beyond the bare fact of drug possession and that, although a scale was found, no packaging material was discovered in his possession.
However, in addition to the drugs, the police found about a dozen small plastic bindles and an electronic scale. Pierce acknowledges in his reply brief that this packaging material provides sufficient circumstantial evidence to support an intent to deliver. Therefore, the evidence was sufficient to support this count.
VI. Unanimous Verdict on the Cartwright Burglary Charge
Pierce claims that unlawfully entering a building with the intent to commit a crime against persons therein and unlawfully entering a building with the intent to commit a crime against property therein are alternative means of committing burglary. He claims that the evidence was insufficient to show that he unlawfully entered the Cartwright residence with the intent to commit a crime against persons therein. He claims that we must reverse his conviction because there were no particularized expressions of unanimity in the jury's general verdict as to which means he used to commit burglary.
With respect to the different intents which may be present, the burglary statute describes a single offence and jury unanimity on the underlying intent is therefore unnecessary. State v. Johnson, 100 Wn.2d 607, 626, 674 P.2d 145 (1983), overruled on other grounds by State v. Bergeron, 105 Wn.2d 1, 4, 711 P.2d 1000 (1985). Moreover, the specific crime intended to be committed in the burglarized premises is not an element of burglary in the sense that the information is defective if it does not allege a specific crime intended. Bergeron, 105 Wn.2d at 15. The intent required for a burglary conviction is simply the "intent to commit a crime against a person or property therein." Bergeron, 105 Wn.2d at 16-17 (emphasis added).
Pierce cites State v. Tresenriter, 101 Wn. App. 486, 4 P.3d 145 (2000), to support his assertion that the burglary statute establishes two alternative means of committing burglary (with the intent to commit a crime against a person and the intent to commit a crime against property). The State responds that Tresenriter is inapplicable here because it addressed the sufficiency of the charging documents; it therefore should not be read as creating alternative means of committing burglary.
We agree with the State that Tresenriter is inapposite here. We overturned the conviction in that case because the charging information was constitutionally defective — the State did not provide Tresenriter with the necessary notice of the crimes charged. State v. Tresenriter, 101 Wn. App. 486, 492, 4 P.3d 145 (2000). This court did not intend to imply a reading of the burglary statute that would create alternative means of commission based solely on differing intents.
Because the intent required for a burglary conviction is simply the intent to commit a crime against a person or property, we affirm Pierce's conviction for the Cartwright burglary (count I).
VII. Unanimous Verdict on the Coble Assault Charge
Pierce claims that assault may be committed by one of three alternative means. He argues that evidence is insufficient to show that he committed a common law battery, one of the three alternative means of assault. He claims that, because the assault verdict was a general verdict, it is unknown whether the jury was unanimous as to the means by which he committed the assaults. He claims that this lack of unanimity requires reversal of his two assault charges against the Cobles.
Because the criminal code does not define "assault," courts use the common law definition. Rivas, 97 Wn. App. at 352. Here, instruction 22 described all three common law definitions of assault:
An assault is an intentional touching or striking or shooting of another person that is harmful or offensive regardless of whether any physical injury is done to the person. . . . [This paragraph describes common law battery.]
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 inflict the bodily injury if not prevented. It is not necessary that bodily injury be inflicted. [This paragraph describes common law attempted battery.]
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 in fact creates in another a reasonable apprehension and imminent fear of bodily injury even though the actor did not actually intend to inflict bodily injury. [This paragraph describes common law assault].
CP at 137; see also Rivas, 97 Wn. App. at 352.
Division One addressed a similar claim in Rivas, a case with similar facts and a similar jury instruction defining assault. Rivas, 97 Wn. App. at 352-54. In that case, the defendant displayed a knife during an argument with his girlfriend and said to her, "How about if I kill you while your son watches." Rivas, 97 Wn. App. at 351. Later the defendant claimed, as Pierce does here, that substantial evidence did not support two of the three alternative means of committing assault. Rivas, 97 Wn. App. at 351-52.
Division One held that if substantial evidence does not support one or more of the alternative means, the verdict will stand if the court can determine that the verdict was based on only one of the alternative means and that substantial evidence supported that alternative means. Allen, 127 Wn. App. at 130; Rivas, 97 Wn. App. at 354-55. The substantial evidence test is satisfied if a rational trier of fact could have found each means of committing the crime proved beyond a reasonable doubt. In re Det. of Halgren, 156 Wn.2d 795, 811, 132 P.3d 714 (2006).
In Rivas, the court determined that no evidence supported either an actual or an attempted battery. Rivas, 97 Wn. App. at 352. The defendant did not touch the victim with the knife nor did he fail in an attempt to inflict bodily harm. Rivas, 97 Wn. App. at 352-53. The trial court record only supported a second degree assault based on common law assault. Rivas, 97 Wn. App. at 354.
In this case, the Coble assaults could only have been accomplished through common law assault and substantial evidence supports the conviction based on common law assault. No evidence was presented to show that Pierce shot or tried to shoot the Cobles. The only evidence was that Pierce created apprehension and imminent fear of bodily injury. Because we can determine that the verdict was based on only one of the alternative means and that substantial evidence supported that means, we hold that the jury verdict was unanimous as to that means.
VIII. Jury Instruction Defining "Knowledge"
Pierce claims that jury instruction 32 defining "knowledge" misstated the law because the instruction's language differed from the statutory language. He cites to RCW 9A.08.010(1)(b), which says:
A person knows or acts knowingly or with knowledge when:
(i) he is aware of a fact, facts, or circumstances or result described by a statute defining an offense; or
(ii) he has information which would lead a reasonable man in the same situation to believe that facts exist which facts are described by a statute defining an offense.
RCW 9A.08.010(1)(b) (emphasis added).
The jury instruction read:
A person knows or acts knowingly or with knowledge when he or she is aware of a fact, circumstance or result described by law as being a crime, whether or not the person is aware that the fact, circumstance or result is a crime.
If a person has information which would lead a reasonable person in the same situation to believe that facts exist which are described by law as being a crime, the jury is permitted but not required to find that he or she acted with knowledge.
CP at 147, Instruction 32.
Pierce claims that it is nonsensical for a "fact, circumstance or result" to be described by law as a crime. He says this is different from the statute, which requires that the fact be described by a criminal statute, not that the fact itself be described as a crime. He says that the instruction was confusing and misleading and that the jury was unable to determine the meaning of the knowledge element of the possession of a stolen firearm instruction.
Pierce raises this claim for the first time on appeal. However, failure to properly instruct the jury on an element of a charged crime is an error of constitutional magnitude that may be raised for the first time on appeal. State v. Roggenkamp, 153 Wn.2d 614, 620, 106 P.3d 196 (2005). This rule applies to errors in defining the terms in the "to convict" instruction as well as to the "to convict" instruction itself. See Roggenkamp, 153 Wn.2d at 620.
Jury instructions are sufficient if they are supported by substantial evidence, allow the parties to argue their theories of the case, and when read as a whole properly inform the jury of the applicable law. State v. Clausing, 147 Wn.2d 620, 626, 56 P.3d 550 (2002). We review the adequacy of jury instructions de novo as a question of law. Clausing, 147 Wn.2d at 626-27. Instructional error is presumed to be prejudicial unless it affirmatively appears to be harmless. Clausing, 147 Wn.2d at 628.
In this case, we hold that the jury instruction properly informed the jury of the applicable law. The language in the jury instruction is not significantly different from the statutory language. Both refer to facts or circumstances that are crimes. Whether the crimes are described "by law" or in a "statute defining an offense" is not relevant in this instance. Furthermore, Pierce cannot show that this instruction affected the trial's outcome. Therefore, we reject his claim of error.
IX. Offender Score A. Prior Convictions
Pierce argues that the trial court sentenced him using an incorrect offender score because it failed to determine whether his two prior convictions constituted the same criminal conduct.
Pierce's criminal history included convictions for possession and possession with intent to deliver, both occurring on January 27, 2004. At sentencing, the State presented certified copies of the judgment and sentence for these two convictions. The trial court asked the parties if there were any disputes about the offender score and the prior convictions. Pierce failed to argue that his two prior convictions should be considered the same criminal conduct, and the two convictions added two points to his offender score. On the judgment and sentence, which Pierce also signed, the trial court checked the box next to the statement: "[t]he court finds that the following prior convictions are one offense for purposes of determining the offender score (RCW 9.94A.525): NONE." CP at 5.
Pierce argues that the trial court is not bound by prior determinations, but must affirmatively decide whether his prior offenses should count separately or together. Because the trial court failed to exercise its discretion in making this determination, he claims that his sentence must be vacated and remanded for resentencing. We have no information about whether the prior court found these two offenses to be the same criminal conduct or whether the sentences were served concurrently.
The court below ordered that Pierce's sentence in the current case run concurrent with part of his sentence for these prior offenses.
1. Counting Prior Convictions
A sentencing court counts all prior convictions separately unless the prior court found that the offenses constituted the same criminal conduct. RCW 9.94A.525(5)(a)(i). "Same criminal conduct" means two or more crimes that require the same criminal intent, are committed at the same time and place, and involve the same victim. RCW 9.94A.589(1)(a). Pierce's argument that a sentencing court is not bound by a prior court's determination is overbroad. RCW 9.94A.525(5)(a)(i) requires a subsequent court to follow the prior court's determination only when the prior court found that the actions were the "same criminal conduct." RCW 9.94A.525(5)(a)(i).
Washington's Sentencing Reform Act provides:
In the case of multiple prior convictions, for the purpose of computing the offender score, count all convictions separately, except:
(i) Prior offenses which were found, under RCW 9.94A.589(1)(a), to encompass the same criminal conduct, shall be counted as one offense, the offense that yields the highest offender score. The current sentencing court shall determine with respect to other prior adult offenses for which sentences were served concurrently . . . whether those offenses shall be counted as one offense or as separate offenses using the "same criminal conduct" analysis found in RCW 9.94A.589(1)(a), and if the court finds that they shall be counted as one offense, then the offense that yields the highest offender score shall be used. The current sentencing court may presume that such other prior offenses were not the same criminal conduct from sentences imposed on separate dates, or in separate counties or jurisdictions, or in separate complaints, indictments, or informations.
RCW 9.94A.525(5)(a)(i) (emphasis added).
If the sentences for prior adult offenses were served concurrently, the trial court "shall" determine whether those offenses constituted the same criminal conduct. RCW 9.94A.525(5)(a)(i). This is mandatory and a court abuses its discretion when it declines to make this determination. State v. Wright, 76 Wn. App. 811, 829, 888 P.2d 1214, review denied, 127 Wn.2d 1010 (1995). However, the statute does not compel this determination if the sentences for prior adult offenses were served consecutively. See RCW 9.94A.525(5)(a)(i).
In this case, Pierce does not indicate whether the sentences for his prior offenses ran concurrently. The record only shows that he was sentenced for his two prior offenses at one hearing and that he committed his two prior offenses on the same date. Therefore, the trial court was not compelled by statute to expressly determine whether the prior offenses constituted the same criminal conduct.
2. Waiver
Generally, issues not raised in the trial court may not be raised for the first time on appeal. RAP 2.5(a). In the context of sentencing, the general rule is that "[a] sentence within the standard range for the offense shall not be appealed." RCW 9.94A.585(1). Illegal or erroneous sentences, however, may be challenged for the first time on appeal. State v. Nitsch, 100 Wn. App. 512, 519, 997 P.2d 1000, review denied, 141 Wn.2d 1030 (2000).
A defendant cannot agree to punishment in excess of that which the Legislature has established. In re the Pers. Restraint of Goodwin, 146 Wn.2d 861, 873-74, 50 P.3d 618 (2002). Therefore, a defendant generally cannot waive a challenge to a miscalculated offender score. Goodwin, 146 Wn.2d at 874.
Pierce raises this claim for the first time on appeal. In a case where the defendant did not ask the trial court at sentencing for a finding of same criminal conduct, Division One held that the defendant could raise the issue for the first time on appeal. State v. Anderson, 92 Wn. App. 54, 61, 960 P.2d 975 (1998), review denied, 137 Wn.2d 1016 (1999). However, Division One did not allow same criminal conduct to be raised for the first time on appeal where the defendant affirmatively agreed to his offender score. Nitsch, 100 Wn. App. at 522. Pierce's counsel, while arguing for a decreased offender score, stated that Pierce's offender score "would include two points going in for the prior convictions." 4 RP (Dec. 29, 2004) at 297. He continued to reference the "two points going in." 4 RP at 297-98. Here, unlike Anderson and like Nitsch, Pierce was not silent on same criminal conduct?he argued it extensively at sentencing for the current offenses. Pierce acknowledged the two points from his prior convictions, effectively agreeing to his offender score as regards those offenses. Therefore, under Nitsch, he is not allowed to raise this issue for the first time on appeal.
B. Current Convictions
For his current convictions, Pierce claims that the trial court correctly found that counts VIII (Coble robbery) and X (Coble assault) were the same criminal conduct, as were counts IX (Coble burglary) and XII (Coble theft). He claims that the court should have found that these two pairs of offenses were also the same criminal conduct because they all occurred at the same time and place and all involved the same victims and the same criminal intent. Because they should have been scored as one offense, he asks that his sentence be vacated and that we remand for resentencing with a lower offender score.
The State responds that under the burglary antimerger statute, the trial court had the discretion to count the Coble burglary conviction separately. Pierce responds that the antimerger statute does not affect the same criminal conduct determination.
A defendant's current offenses must be counted separately in determining the offender score unless the trial court finds that some or all of the current offenses "encompass the same criminal conduct." RCW 9.94A.589(1)(a).
We review for abuse of discretion or misapplication of the law the trial court's finding that offenses did not constitute the same criminal conduct. State v. Maxfield, 125 Wn.2d 378, 402, 886 P.2d 123 (1994).
In this case, Pierce is correct that, despite the burglary antimerger statute, RCW 9.94A.589(1)(a) must be applied if other crimes encompass the same criminal conduct as burglary. See Tresenriter, 101 Wn. App. at 496. The trial court apparently did not apply the burglary antimerger statute because it found that the burglary and the theft constituted the same criminal conduct.
We hold that the trial court did not abuse its discretion in counting the burglary and the theft as separate from the robbery and the assault. The trial court could have found that Pierce committed the burglary and theft with the intent to steal property and that the robbery and the assault involved the intent to threaten another person. Because the trial court could have found that the intent in each crime was different, we uphold the offender score for the current convictions.
X. Firearm Enhancement
Pierce claims that the trial court erroneously imposed a firearm enhancement instead of a deadly weapon enhancement. The State responds that Pierce was charged with a firearm enhancement and that the jury returned special verdicts finding that Pierce was armed with a firearm. Pierce replies that the jury was not instructed on firearm enhancements, just on deadly weapon enhancements. He argues that this instruction was insufficient to impose a firearm enhancement, regardless what the special verdict forms said.
Pierce is correct that one of the jury instructions said, "For purposes of a special verdict the State must prove beyond a reasonable doubt that the defendant was armed with a deadly weapon." CP at 152. However, the instruction immediately preceding it explained how to fill out the special verdict forms and did not refer to the verdict forms' content. Another jury instruction defined "firearm." CP at 127. Therefore, the jury had sufficient information to understand the verdict forms. In addition, the question on the special verdict forms was straightforward so that the average juror would understand it. It said, "Was the defendant, Wade William Pierce, armed with, or in possession of a firearm at the time of the commission of the crime —" CP at 175-81.
The Washington Supreme Court has held that a jury verdict finding that the defendant was armed with a deadly weapon is insufficient to support a firearm enhancement. State v. Recuenco, 154 Wn.2d 156, 162, 110 P.3d 188 (2005), overruled by Washington v. Recuenco, 126 S. Ct. 2546, 2553, 165 L. Ed. 2d 466, 477 (2006). However, the United States Supreme Court recently reversed the Washington Supreme Court, holding that "[f]ailure to submit a sentencing factor to the jury, like failure to submit an element to the jury, is not structural error." Recuenco, 126 S. Ct. at 2553. The firearm enhancements were proper here under Recuenco.
We affirm all counts (I-VI, VIII-XIII), except count VII (possession of a stolen firearm), which we reverse without prejudice.
A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.06.040, it is so ordered.
HOUGHTON, P.J. and ARMSTRONG, J., concur.