Opinion
66977-0-I
01-28-2013
STATE OF WASHINGTON, Respondent, v. PAUL RAYMOND LEWIS, Appellant.
UNPUBLISHED OPINION
Spearman, A.C.J.
For his acts in attempting to take Paul Rodrick's wallet and stabbing Rodrick with a knife, Paul Lewis was convicted by a jury of attempted robbery in the first degree and assault in the second degree. The jury found that he committed each offense while armed with a deadly weapon. Because he was a persistent offender, Lewis received a mandatory life sentence under the Persistent Offender Accountability Act (POAA). On appeal he claims that: (1) the trial court abused its discretion in denying his "for cause" challenge to a juror; (2) defense counsel provided ineffective assistance by asserting a self-defense theory and presenting certain expert testimony; (3) the jury instructions denied him a right to a unanimous jury verdict on the deadly weapon enhancements; (4) the trial court violated art. I, sec. 7 of the Washington State Constitution by compelling him to provide fingerprints after he was convicted; (5) he was entitled to a jury finding beyond a reasonable doubt that he is a persistent offender; (6) the POAA violates equal protection because it allows the State to prove the existence of prior convictions to a judge rather than to a jury and under a lower standard of proof than in cases where prior convictions constitute an "element" of a crime; (7) his conviction for attempted robbery must be reversed because the jury was instructed on an uncharged alternative means; and (8) his convictions violate double jeopardy under the merger doctrine. We agree that Lewis's convictions merged, requiring reversal of the assault conviction. We reject his remaining claims, holding that Lewis's for-cause challenge is not properly raised; he does not show prejudice for his ineffective assistance claim; the jury instructions as a whole properly instructed the jury on unanimity; his claim regarding fingerprints is waived; his claims regarding persistent offender status and the POAA have already been addressed by this court; and that while the jury was improperly instructed on an uncharged alternative means, the error was harmless under the circumstances of this case. We affirm Lewis's conviction for attempted robbery in the first degree, and remand with instructions to vacate his conviction for assault in the second degree and to resentence him.
FACTS
Rodrick lives in the South Park neighborhood of Seattle. Around 1:30 a.m. on August 27, 2009, Rodrick went to a Shell station to buy cigarettes and beer. As he left the store, Rodrick put his wallet in his rear pocket. Lewis approached him and asked for a cigarette. Rodrick gave Lewis a cigarette and the two engaged in conversation. Rodrick offered to share his beer with Lewis. The two moved away from the store and sat down on a ledge. Lewis reached over to Rodrick, attempted to grab Rodrick's wallet from his pocket, then pulled out a utility knife and said, "Give me your money." Verbatim Report of Proceedings (VRP) at 136-41. Rodrick was shocked and did not comply immediately. Lewis began slashing at Rodrick with the knife and stabbed Rodrick's arm. Rodrick struggled with Lewis, tried to grab the knife, and ended up on the ground on his stomach, at which point Lewis stabbed him in the back.
Rodrick described the knife as having an adjustable blade one to one-and-a-half inches long.
1VRP-1/12/11, 2VRP-1/13/11, 3VRP-1/18/11, 4VRP-1/31/11, 5VRP-2/1/11, 6VRP-2/1/11, 7VRP-2/2/11, 8VRP-2/3/11, 9VRP-2/7/11, 10VRP-2/8/11, 11VRP-2/9/11, 12VRP-3/10/11, 13VRP-3/25/11, and 14VP-4/1/11.
Neighborhood resident Erin Carnahan heard noises and went to investigate. She saw Lewis overpower Rodrick and "lung[e] something into" Rodrick several times, though she did not see a weapon. Lewis got on top of Rodrick, who said "help me" and "I'm being stabbed." VRP at 70-71. Carnahan came within six or seven feet of the scene. When she asked what was going on, Lewis got off Rodrick and said, "He ripped me off, he ripped me off." Id. at 74.
By chance, an ambulance came across the scene. The driver of the ambulance, Rose Washington, observed that Lewis and Rodrick were both lying down. Soon Lewis got up, started dragging Rodrick onto the sidewalk, then held Rodrick down and hit him. Carnahan saw Lewis get off Rodrick and go to the bushes nearby. Lewis appeared to Carnahan to be looking for something. She then went to the ambulance to talk to Washington, who was on the phone with police. When Carnahan next looked in Lewis's direction she observed him go through her yard and disappear. Meanwhile, Washington also saw Lewis walk away from Rodrick, who was covered in blood and lying motionless on the ground. Washington observed Lewis return and strike Rodrick multiple times in the abdomen and side approximately 30 seconds later. She observed that Rodrick appeared to be trying to protect himself. Washington, like Carnahan, did not see a weapon in Lewis's hand. She saw Lewis take off his shirt and flee on foot.
When Washington reached Rodrick, his vital signs were "very poor, " and she believed there was a possibility he could die. Rodrick was transported to Harborview Medical Center, where he underwent emergency surgery. He sustained multiple stab wounds, including to his back, chest, abdomen, side, and both arms.
Lewis was apprehended a few blocks from the scene after a police dog track and foot pursuit. Although a large amount of blood was on Lewis, officers observed no injuries other than a few minor cuts to his hands. Deoxyribonucleic acid (DNA) testing confirmed the presence of Rodrick's blood on Lewis's cell phone and clothing. Police did not recover a knife.
The evidence at trial was unclear regarding what happened to Rodrick's wallet. While Rodrick testified that Lewis took the wallet because it did not accompany him to the hospital, Police officer Charles Stewart testified that he believed Rodrick had a wallet with him and that the wallet "was probably sent to [Rodrick] or stayed with him as he went to the hospital." 7VRP at 77, 81, 138. Rodrick could not say when Lewis got a hold of the wallet.
At closing, the prosecutor stated it was unclear what happened to Rodrick's wallet, and defense counsel pointed out that Stewart's testimony was that Rodrick had a wallet on him.
The State charged Lewis by amended information with attempted robbery in the first degree and assault in the second degree, each with a deadly weapon enhancement. He was charged under the "bodily injury" alternative means for the attempted robbery charge.
During voir dire, Juror 31 stated, "I don't think that I really assume that anybody is innocent, that they must have done something. That's why they're here." 5VRP at 85. Lewis challenged the juror for cause. During the colloquy that followed, the juror expressed ambivalence about being able to apply the presumption of innocence. But ultimately, in response to the trial court's question whether the juror could follow the law and the jury instructions regardless of what the juror personally believed, the juror responded, "Yes." 5VRP at 89. The court then denied Lewis's challenge for cause. When the time came to exercise peremptory challenges, Lewis did not exercise such a challenge against Juror 31 even though he had peremptory challenges remaining.
At trial, Lewis testified in his own defense. He testified that, on the day of the incident, he went to see his counselor and was in an agitated mood. Afterward, he ran around town, returned home, drank a beer, and took his medication. He then went to the Shell station to hang out and buy beer. As Lewis drank his beer, he saw Rodrick arrive. Lewis asked Rodrick for a cigarette, was given one, and then Rodrick asked Lewis if he wanted to share a beer. Lewis testified that the two talked for about twenty minutes and that Rodrick became angry when Lewis refused to assist him in buying crack cocaine. As Lewis walked away, Rodrick attacked him from behind with a small knife. Lewis testified that he was able to grab the knife away from Rodrick, at which point he blacked out. He testified that he had no memory of stabbing or struggling with Rodrick.
The jury found Lewis guilty as charged and found by special verdicts that he was armed with a deadly weapon when he committed both crimes. As a persistent offender, Lewis received a mandatory life sentence.
DISCUSSION
For-Cause Challenge to Juror
Lewis claims the trial court abused its discretion in denying his for-cause challenge to Juror 31. But a claim of error in denying a challenge for cause is not properly raised where, as here, a defendant accepts a jury without exercising all available peremptory challenges. State v. Clark, 143 Wn.2d 731, 762, 24 P.3d 1006 (2001). The defendant cannot show prejudice based on the jury's composition. Id. (citing State v. Tharp, 42 Wn.2d 494, 500, 256 P.2d 482 (1953)).
The denial of a challenge for cause is addressed to the sound discretion of the trial court. State v. Rupe, 108 Wn.2d 734, 749, 743 P.2d 210 (1987).
Other cases applying this rule include State v. Elmore, 139 Wn.2d 250, 277-78, 985 P.2d 289 (1999); State v. Robinson, 75 Wn.2d 230, 231-32, 450 P.2d 180 (1969); State v. Collins, 50 Wn.2d 740, 744, 314 P.2d 660 (1957); State v. Tharp, 42 Wn.2d 494, 500, 256 P.2d 482 (1953); State v. Jahns, 61 Wash. 636, 638, 112 P. 747 (1911); and Martini ex reI. Dussault v. State, 153 Wn.2d 1023, 108 P.3d. 250 (2004), rev. denied, 153 Wn.2d 1023, 108 P.3d 133 (2005).
Lewis contends his claim is properly raised, citing State v. Fire, 145 Wn.2d 152, 34 P.3d 1218 (2001). Fire is of no assistance to Lewis. The court's holding was that even if a juror should have been dismissed for cause, where the defendant exercises a peremptory challenge to remove the juror and exhausts all peremptory challenges but there is no showing that a biased juror (against whom a peremptory challenge might have been used) sat on the panel, there is no prejudice. Id. at 154. Unlike Lewis, the defendant in Fire exercised a peremptory challenge on the juror in question and exhausted his peremptory challenges.
Ineffective Assistance of Counsel
Claims of ineffective assistance present mixed questions of fact and law reviewed de novo. In re Pers. Restraint of Brett, 142 Wn.2d 868, 873, 16 P.3d 601 (2001). To establish ineffective assistance of counsel, a defendant must prove that (1) counsel's performance was deficient and (2) the deficient performance prejudiced the defendant such that there is a reasonable probability that the proceedings would have turned out differently without counsel's errors. Strickland v. Washington, 466 U.S. 668, 687-95, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); State v. Thomas, 109 Wn.2d 222, 225-26, 743 P.2d 816 (1987). If the defendant fails to prove either prong of this test, the inquiry ends. State v. Hendrickson, 129 Wn.2d 61, 78, 917 P.2d 563 (1996).
Lewis contends defense counsel's performance was deficient because he pursued a "muddled" defense and presented the testimony of an expert witness, psychologist Kenneth Muscatel. He claims Muscatel's testimony harmed him.Lewis contends he was prejudiced because self-defense applied only to the assault; even if successful, the defense provided no basis upon which to acquit him of robbery. Accordingly, self-defense could not prevent the imposition of a life sentence. He contends diminished capacity, on the other hand, would have constituted a complete defense for both charges.
Specifically, Lewis points to Muscatel's testimony that Lewis's capacity was not diminished; his statement that a claim of self-defense was "saying I didn't do it"; his description of Lewis's behavior as an "overreaction, " which he contends effectively defeated his claim of self-defense; his statement that Lewis's mental illness was only relevant if the jury believed his version of events; and his statements that one had to rely on someone's self-reporting and that he believed Lewis underperformed on certain tests.
Lewis's ineffective assistance claim fails because he does not show prejudice. The evidence against him was overwhelming; two eyewitnesses in addition to Rodrick testified that he repeatedly attacked Rodrick, and Rodrick testified that Lewis tried to grab his wallet and demanded money. Defense counsel recognized it was unlikely that a claim of self-defense by itself could succeed; even if jurors believed Lewis's version of events, self-defense alone would not support his extreme use of force. Therefore, counsel pursued a modified self-defense theory: Lewis overreacted based on his mental illness, his reaction to medication he was taking, his resulting perceptions, and his belief that he was going to be attacked. Lewis testified at trial and the defense asserted that his version of events was correct. Muscatel's testimony was predicated on that version and was consistent with the defense's theory. If it was Lewis who attempted to rob Rodrick, Lewis's mental state was not relevant; he initiated the acts and was not using self-defense. But if Rodrick initiated the assault, Lewis's mental disorder explained why he reacted the way he did.
Lewis also fails to show that his attorney's representation was deficient. The decision to pursue a modified self-defense theory was reasonable in light of Lewis's testimony that he did not commit the robbery but instead only reacted to Rodrick's alleged assault against him. Muscatel's testimony explained why, based on Lewis's mental illness and medications, he may have overreacted to the perceived threat from Rodrick.
Lewis asserts that defense counsel should have pursued a diminished capacity defense instead. He asserts that Muscatel's testimony undercut his ability to make such a defense. But the record reflects that such a defense could not have been pursued. First, Lewis testified that he had no memory of the assault. Therefore, he could not provide evidence to support a claim that he could not form the requisite intent. Second, as he testified, Muscatel examined Lewis and did not find sufficient evidence to support this defense.
A diminished capacity defense requires evidence of a mental condition that prevents the defendant from forming the intent necessary to commit the crime charged. State v. Tilton, 149 Wn.2d 775, 784, 72 P.3d 735 (2003). A defendant must produce expert testimony on the issue. State v. Eakins, 127 Wn.2d 490, 502, 902 P.2d 1236 (1995).
Lewis also argues that the self-defense claim pertained only to the assault charge; therefore, the strategy was defective because he still faced a life sentence if convicted of attempted robbery. But Lewis testified that he did not attempt to rob Rodrick. If his testimony was believed, he would have been acquitted of the robbery. He still needed a defense for the assault, which was why defense counsel pursued the modified self-defense theory.
In sum, Lewis does not show that the outcome of his trial would have been different had counsel not pursued a modified self-defense theory or presented Muscatel's testimony, or had counsel pursued his suggested strategies.
Jury Instructions
Alleged errors of law in jury instructions are reviewed de novo. State v. Hayward, 152 Wn.App. 632, 641, 217 P.3d 354 (2009). Jury instructions are proper when they permit the parties to argue their theories of the case, do not mislead the jury, and properly inform the jury of the applicable law. Id. We analyze a challenged jury instruction by considering the instructions as a whole and reading the challenged portions in context. Id. at 642.
Lewis contends the jury was not instructed that its verdicts on the deadly weapon enhancements must be unanimous, in violation of his constitutional rights. Wash. Const. art. I, §§ 21, 22; State v. Recuenco, 163 Wn.2d 428, 435-36, 180 P.3d 1276 (2008). A jury must unanimously agree the State has proved beyond a reasonable doubt the facts necessary to impose an enhancement. State v. Goldberg, 149 Wn.2d 888, 893, 72 P.3d 1083 (2003) overruled on other grounds by State v. Nuñez, 174 Wn.2d 797, 285 P.3d 21 (2012). The failure to ensure the jury is unanimous in its verdict is a manifest constitutional error, and this issue may be addressed in the absence of an objection below. State v. Watkins, 136 Wn.App. 240, 244-45, 148 P.3d 1112 (2006).
We conclude the jury instructions as a whole properly informed the jury it had to be unanimous as to the deadly weapon enhancements. Instruction 22 related to the special verdict, providing that:
For purposes of a special verdict the State must prove beyond a reasonable doubt that Defendant was armed with a deadly weapon at the time of the commission of the crime in Count 1 AND Count 2.CP at 79. The instruction defined what it meant to be "armed with a deadly weapon" and defined "deadly weapon." That instruction did not include a unanimity instruction. Instruction 23, however, informed the jury it would be provided four verdict forms: two for the charged offenses and two for the deadly weapon enhancements. It then informed the jurors: "Because this is a criminal case, each of you must agree for you to return a verdict. When all of you have so agreed, fill in the verdict form(s) to express your decision." CP at 80-81. Furthermore, the jurors were instructed: "As jurors, you have a duty to discuss the case with one another and to deliberate in an effort to reach a unanimous verdict." CP at 59 (Instruction 2). As a whole, the instructions accurately state the law.
Violation of Article I, Section 7
Lewis claims the trial court violated art. I, §7 of the Washington State Constitution by compelling him to provide fingerprints after his conviction. Generally a party's failure to raise an issue at trial waives the issue on appeal unless the party can show the presence of a manifest error affecting a constitutional right. RAP 2.5(a); State v. Robinson, 171 Wn.2d 292, 304, 253 P.3d 84 (2011). Here, Lewis did not raise the issue when his fingerprints were taken or when the prints were admitted into evidence at sentencing. And because he does not explain why he can raise this issue for the first time on appeal, it is waived.
Lewis was convicted on February 9, 2011. On March 10, the parties appeared in court. The State made an oral motion to compel Lewis to provide his fingerprints so the State could prove his identity. Defense counsel stated that Lewis wanted to know why the State needed a set of his prints as it already had a set on file. Counsel did not otherwise object, stating, "There's no good faith basis to oppose the State's motion to make the prints." 12 VRP at 3. The court stated that if Lewis did not voluntarily submit to fingerprinting, it would enter an order requiring him to do so. Lewis complied and no order was entered. In sentencing Lewis as a persistent offender, the State used the prints as part of the evidence to prove he had two or more prior "most serious offenses." 14VRP at 6-23. Lewis did not move to suppress evidence of the prints or object that the prints were obtained illegally.
Right to Jury Finding of Persistent Offender Status
Lewis claims he had a constitutional right to have a jury determine whether he is a persistent offender. This court has already rejected this claim on the basis of binding state and federal authority. State v. McKague, 159 Wn.App. 489, 513-17, 246 P.3d 558 (aff'd, 172 Wn.2d 802, 262 P.3d 1225 (2011))(citing Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000)); Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998); State v. Thiefault, 160 Wn.2d 409, 158 P.3d 580 (2007); State v. Smith, 150 Wn.2d 135, 75 P.3d 934 (2003).
In McKague, we noted that in Apprendi and Almendarez-Torres, the U.S. Supreme Court decided that the right to a jury trial and the prosecution's burden of proof beyond a reasonable doubt did not apply to determining the existence of prior convictions. McKague, 159 Wn.App. at 513. We further noted that our own supreme court had decided to follow federal precedent on this issue and that we are bound unless the court overrules itself. Id. at 514.
Equal Protection Challenge to POAA
Lewis argues that his equal protection rights were violated because the POAA allows the State in his case to prove the existence of prior convictions to a judge by a preponderance of the evidence, while in cases where prior convictions are considered an "element" of a crime those convictions must be proven to a jury beyond a reasonable doubt. He contends the POAA arbitrarily discriminates between two classes of similarly situated recidivists. We have already rejected this claim. State v. Reyes-Brooks, 165 Wn.App. 193, 206-07, 267 P.3d 465 (2011); State v. Langstead, 155 Wn.App. 448, 456-57, 228 P.3d 799, rev. denied, 170 Wn.2d 1009, 228 P.3d 799 (2010); State v. Williams, 156 Wn.App. 482, 496-98, 234 P.3d 1174, rev. denied, 170 Wn.2d 1011, 245 P.3d 173 (2010).
This court has concluded that, under rational basis review, "proof of [the defendant's] prior convictions by a preponderance of the evidence is not entirely irrelevant to the purposes of the persistent offender statutes. [The defendant's] sentence is rationally related to the purposes of the Persistent Offender Accountability Act and is not, then, a violation of equal protection." Williams, 156 Wn.App. at 498.
Instruction on Uncharged Alternative Means
Lewis claims his conviction for attempted robbery in the first degree must be reversed because the jury was instructed on an uncharged alternative means of committing the crime. When an offense may be committed by alternative means, it is error to instruct the jury on a means that was not alleged in the information, regardless of the range of evidence admitted at trial. State v. Laramie, 141 Wn.App. 332, 342, 169 P.3d 859 (2007); State v. Chino, 117 Wn.App. 531, 540, 72 P.3d 256 (2003); State v. Bray, 52 Wn.App. 30, 34, 756 P.2d 1332 (1988). The manner of committing a crime is an element and the defendant must be informed of the element in the information to prepare a proper defense. Bray, 52 Wn.App. at 34 (citing State v. Carothers, 84 Wn.2d 256, 263, 525 P.2d 731 (1974)); see also State v. Doogan, 82 Wn.App. 185, 188, 917 P.2d 155 (1996) (trying defendant under uncharged statutory alternative violates defendant's right to notice of the crime charged). Such an erroneous instruction is presumed prejudicial unless it affirmatively appears that the error was harmless. Bray, 52 Wn.App. at 34-35 (citing State v. Brown, 147 Wn.2d 330, 331, 58 P.3d 889 (2002)).
Lewis asserts this claim in a supplemental assignment of error but does not submit any detailed argument in support of this claim.
Here, it was undisputed error to instruct the jury on an uncharged alternative. Lewis was charged in the amended information with committing attempted robbery only under the alternative means of inflicting bodily injury. But the jury was instructed on both the deadly weapon alternative means and the bodily injury alternative means for the attempted robbery charge. The jury was instructed that to convict Lewis of attempted robbery in the first degree, the State had to prove, among other elements, that Lewis "did an act that was a substantial step toward the commission of robbery in the first degree." CP a 63. It was further instructed that "[a] person commits the crime of robbery in the first degree when in the commission of a robbery or in immediate flight therefrom he or she is armed with a deadly weapon or inflicts bodily injury." CP at 64 (emphasis added).
Ordinarily, this type of instructional error is prejudicial "if it is possible that the jury might have convicted the defendant under the uncharged alternative." Doogan, 82 Wn.App. at 189. Under the unique circumstances of this case, however, we are persuaded that the error was harmless.
First, we note that the amended information did inform Lewis that he would have to defend against the specific accusation that he was armed with a deadly weapon while committing the attempted robbery. The special allegation explicitly accused Lewis was of being armed with a deadly weapon, to wit: a knife, at the time of the crime. Therefore, the purpose of the rule—notice to the defendant—was not violated in this case.
Second, the court's special verdict instruction directed the jury to determine whether Lewis was armed with a deadly weapon at the time of the commission of the attempted robbery. The jury's special verdict shows that it found beyond a reasonable doubt that he was. In addition, the jury's verdict on the assault charge demonstrates it found beyond a reasonable doubt that Lewis caused bodily injury to Rodrick. Therefore, the jury necessarily found that Lewis committed attempted robbery in the first degree under both alternative means.
In instruction 22, the special verdict instruction, the court advised the jury, in part: A person is armed with a deadly weapon if, at the time of the commission of the crime, the weapon is easily accessible and readily available for offensive or defensive use. The State must prove beyond a reasonable doubt that there was a connection between the weapon and the Defendant. The State must also prove beyond a reasonable doubt that there was a connection between the weapon and the crime. CP at 79.
Because Lewis had notice that he would be required to defend against an allegation that at the time of the attempted robbery he was in possession of a deadly weapon and because the record affirmatively demonstrates that both alternative means were found by the jury to have been proven beyond a reasonable doubt, we conclude the giving of the erroneous instruction was harmless.
Double Jeopardy
Finally we consider Lewis's claim that his convictions merged for double jeopardy purposes because the assault in the second degree elevated attempted robbery to attempted robbery in the first degree. The proper interpretation and application of the double jeopardy clause is a question of law reviewed de novo. State v. Knight, 162 Wn.2d 806, 810, 174 P.3d 1167 (citing State v. Womac, 160 Wn.2d 643, 649, 160 P.3d 40 (2007)). A court entering multiple convictions for the same offense violates double jeopardy. State v. Freeman, 153 Wn.2d 765, 770-71, 108 P.3d 753 (2005). Under the merger doctrine, when the degree of one offense is raised by conduct separately criminalized by the legislature, the court presumes the legislature intended to punish both offenses through a greater sentence for the greater crime. Id. at 772-73. However, even if two convictions appear to be for charges that would merge, they may be punished as separate offenses if there is an independent purpose or effect to each crime. Id. at 773.
Although there are several methods to determine the existence of a double jeopardy violation, Lewis only argues that the merger doctrine applies. Therefore we will focus only on that analysis.
In Freeman, the court considered whether, in the consolidated case of State v. Zumwalt, convictions for robbery in the first degree and assault in the second degree merged. Freeman, 153 Wn.2d at 770. Zumwalt had punched the victim in the face and robbed her. Id. The robbery was based on the infliction of bodily injury alternative means, and the assault was based on the reckless infliction of bodily harm alternative means. State v. Zumwalt, 119 Wn.App. 126, 129-32, 82 P.3d 672 (2003). The court noted that, to prove robbery in the first degree as charged and proved, the State had to prove Zumwalt committed an assault in furtherance of the robbery. Freeman at 778. The court held the convictions merged for double jeopardy purposes because "[a]s charged and proved, without the conduct amounting to assault, " Zumwalt "would be guilty of only second degree robbery." Freeman, 153 Wn.2d at 778. The court stated, "Generally, it appears that [first degree robbery and second degree assault] will merge unless they have an independent purpose or effect[, ]" but also noted that a case-by-case approach was necessary. Id. at 780.
Here, the State concedes the material facts are indistinguishable from those of the Zumwalt defendant in Freeman and that double jeopardy is based on how a defendant is "charged and proved." Freeman, 153 Wn.2d at 778. Lewis was charged only with the alternative means of inflicting "bodily injury" on Rodrick for the attempted robbery charge. Therefore, the State acknowledges, to prove attempted robbery in the first degree as "charged and proved, " the State had to prove Lewis committed an assault in furtherance of the attempted robbery. The State's concessions are well taken.
The State argues, however, that Lewis's convictions should stand because the attempted robbery and the assault each had an independent purpose or effect. "[O]ffenses may in fact be separate when there is a separate injury to 'the person or property of the victim or others, which is separate and distinct from and not merely incidental to the crime of which it forms an element.'" Freeman, 153 Wn.2d at 778 (quoting State v. Frohs, 83 Wn.App. 803, 807, 924 P.2d 384 (1996)). This exception "is less focused on abstract legislative intent and more focused on the facts of the individual case." Id. at 779. The Freeman court cited an example in which a defendant strikes a victim after completing a robbery, in which case "there was a separate injury and intent justifying a separate assault conviction, especially since the assault did not forward the robbery." Id. (citing State v. Prater, 30 Wn.App. 512, 516, 635 P.2d 1104 (1982).
The State contends that while Lewis's initial assault may have been incidental to the attempted robbery, the latter was complete when Lewis briefly walked away from Rodrick. It points out that Lewis returned and continued his assault of Rodrick, with no evidence that Lewis attempted to take anything from Rodrick at that time.
The problem with the State's argument is that it is unclear from the evidence when, if ever, Lewis's attempt to rob Rodrick was completed. The evidence did not establish that the wallet was taken, much less when it was taken. The fact that Carnahan and Washington did not testify to seeing Lewis try to take a wallet from Rodrick does not equate to evidence that he did not do so. After all, they also testified that they did not see a knife, yet it is evident that Lewis stabbed Rodrick. We are not persuaded by the evidence in the record that the two crimes had an independent purpose or effect.
We conclude that Lewis's conviction for assault in the second degree merged with his conviction for attempted robbery in the first degree. We affirm the attempted robbery conviction, and remand for vacation of his assault conviction and resentencing.
Affirmed in part and remanded for further proceedings.