Opinion
No. 31290-5-II
Filed: May 17, 2005 UNPUBLISHED OPINION
Appeal from Superior Court of Thurston County. Docket No: 03-1-01761-6. Judgment or order under review. Date filed: 01/09/2004. Judge signing: Hon. Christine A. Pomeroy.
Counsel for Appellant(s), Thomas Edward Doyle, Attorney at Law, PO Box 510, Hansville, WA 98340-0510.
Counsel for Respondent(s), Steven Curtis Sherman, Thurston County Pros Ofc, 2000 Lakeridge Dr SW, Olympia, WA 98502-6045.
Kwame Forrester appeals his conviction of first degree burglary, first degree robbery, and second degree assault, arguing trial court error in instructing the jury and denying his motion to dismiss the robbery conviction. We affirm the robbery and burglary convictions, but reverse the assault conviction as it merged into the robbery. We remand to the trial court for entry of a judgment and sentence that does not include the assault conviction.
FACTS
On August 5, 2003, K.C. Sanchez called Tumwater police to report a robbery. Sanchez told the officers that three males, including Forrester, broke into his apartment through the back door. The three men barged into Sanchez's bedroom, and one of them put a revolver to Sanchez's head, while the other two men tied his hands with duct tape and a sweater. Sanchez tried to call the police, and later testified at trial that Forrester hit him on the head with a flashlight, causing a three-inch gash on his forehead.
The police officers testified that Forrester admitted hitting Sanchez with a flashlight. But at trial, Forrester denied assaulting Sanchez or having any type of a weapon, including a flashlight.
The attackers took a pair of shoes, a cellular telephone, and approximately $500 in cash. Police put together a photographic montage that included Forrester's photo, and Sanchez immediately identified Forrester as one of the attackers.
The State charged Forrester with first degree burglary, second degree assault, first degree kidnapping, and first degree robbery. It alleged a firearm enhancement on each count.
The trial court instructed the jury on the crimes of first degree burglary, second degree assault, first degree kidnapping, and first degree robbery. Forrester proposed jury instructions on residential burglary, second degree kidnapping, second degree robbery, and fourth degree assault, but the trial court did not give those instructions.
The jury found Forrester guilty of first degree burglary, second degree assault, and first degree robbery, and not guilty of first degree kidnapping. The jury also found that Forrester and his accomplices were not armed with a firearm or a nonfirearm deadly weapon.
At sentencing, the trial court considered whether Forrester's crimes constituted the same course of conduct, as defined in RCW 9.94A.589(1)(a). The trial court found that assault and robbery constituted the same criminal conduct but robbery and burglary did not, and it sentenced him to a standard range 48 month confinement. Forrester appeals.
RCW 9.94A.589(1)(a) reads in part:
[W]henever 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. . . . '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.
ANALYSIS
Forrester raises two issues on appeal. First, he argues that the trial court erred in failing to give proposed instructions on fourth degree assault. Second, he argues that the trial court erred in not dismissing his conviction of robbery in the first degree because that crime was 'incidental to, a part of, or coexistent with' his conviction of second degree assault. Appellant's Brief at 1.
In response, the State filed a motion on the merits to affirm in part and reverse in part. RAP 18.14(e)(1). More specifically, the State asked us to affirm Forrester's convictions of robbery and burglary, to reverse his conviction of second degree assault, and to remand to the trial court for entry of a judgment and sentence without the assault conviction. The State argues that the assault was incidental to the robbery and should merge into that more serious crime. We agree.
RAP 18.14(e)(1) states:
A motion on the merits to affirm will be granted in whole or in part if the appeal or any part thereof is determined to be clearly without merit. In making these determinations, the judge or commissioner will consider all relevant factors including whether the issues on review (a) are clearly controlled by settled law, (b) are factual and supported by the evidence, or (c) are matters of judicial discretion and the decision was clearly within the discretion of the trial court or administrative agency.
Our review of the record discloses that Forrester assaulted Sanchez in order to complete the robbery and not the reverse. The lesser crime of second degree assault was incidental to the greater crime of first degree robbery and merges into the greater. State v. Freeman, ___ Wn.2d ___, 108 P.3d 753, 759 (2005).
Because we reverse the assault conviction, Forrester's arguments based on it are moot and we do not address them.
We grant the State's motion on the merits and affirm the robbery and burglary convictions. We reverse the assault conviction and remand for entry of a judgment and sentence without the assault conviction.
Reversing the assault conviction does not change Forrester's standard sentencing range.
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 hereby so ordered.
BRIDGEWATER, J. and QUINN-BRINTNALL, C.J., concur.