Opinion
No. 58300-0-I.
December 24, 2007.
Appeal from a judgment of the Superior Court for King County, No. 05-1-10684-7, LeRoy McCullough, J., entered May 8, 2006.
Affirmed in part, reversed in part, and remanded by unpublished opinion per Ellington, J., concurred in by Grosse and Dwyer, JJ.
Where evidence of a second degree assault is relied upon to elevate attempted robbery to the first degree, the assault is necessarily the substantial step towards the first degree robbery and the two crimes merge under State v. Freeman, 153 Wn.2d 765, 770, 108 P.3d 753 (2005). Consequently, convicting the defendant of both crimes violates double jeopardy. We remand with instructions to vacate Jacob Tagoai's conviction for second degree assault.
BACKGROUND
On August 1, 2005, as Mohamud Sugulle rode the bus to his job at Sea-Tac International Airport, he made a call on his cell phone. Jacob Tagoai was sitting directly behind Sugulle and asked to borrow the phone. Sugulle refused. Tagoai asked again, and Sugulle once more refused, even when Tagoai offered to pay him.
Tagoai became angry, swearing at Sugulle and threatening him. According to Sugulle, Tagoai said, "I'm going to kick your ass, I'm going to beat you up, I'm going to take the phone, and I want to beat you up when you get off the bus." Report of Proceedings (RP) (Mar. 2, 2006, Vol. 2) at 20. Sugulle ignored him, but Tagoai continued his threats. After a few minutes, Tagoai quieted down. Sugulle, nervous, moved the phone from his front pocket to his lunch box.
Sugulle got off the bus at the airport. He had walked about 20 feet when he felt a hard hit on the back of his head. He turned around, and Tagoai punched him in the eyes and face. Sugulle fell to the ground and covered his face for protection. Tagoai kicked him, felt the outside of Sugulle's front pocket, as if searching for the phone, and left. Sugulle suffered blunt trauma to the eye, including the eyeball, and injuries to his back and one arm.
The State charged Tagoai with attempted first degree robbery and second degree assault. Tagoai testified at trial. He conceded he was "irritated" when Sugulle refused to loan him the phone and admitted he called Sugulle a "bitch" and threatened to "kick his ass." RP (Mar. 8, 2006) at 66. But he claimed they decided to settle the matter off the bus by fighting and he merely threw the first punch. Sugulle allegedly punched back. Tagoai denied kicking Sugulle or feeling his pocket for the phone. Sugulle testified that he got off the bus, walked about 20 feet, and was struck in the back of the head by Tagoai, who bashed him in the face multiple times, repeatedly kicked him in the back as he lay on the ground, and finally checked the pocket where he had had his cell phone. The jury found Tagoai guilty of second degree assault and first degree attempted robbery.
At sentencing, the court agreed with the State that the crimes encompassed the same criminal conduct and imposed concurrent standard range sentences. Tagoai appeals, contending that the conviction for second degree assault should be vacated on double jeopardy grounds.
It does not appear that this argument was raised below.
DISCUSSION
Review of a double jeopardy challenge is de novo. Freeman, 153 Wn.2d at 770. Double jeopardy bars multiple punishments for the same offense. In re Pers. Restraint of Borrero, 161 Wn.2d 532, 536, 167 P.3d 1106 (2007). Where the defendant's conduct supports charges under two statutes, the question is whether the legislature intended to authorize multiple punishments. Id. Where, as here, the relevant statutes do not express legislative intent, we consider principles of statutory construction to determine whether multiple punishments are authorized. Id.
Same Evidence Test
The primary analysis is the same evidence test. If the offenses are identical both in fact and in law, double jeopardy principles are violated. Id. The elements of the crimes are compared as charged and proved. Freeman, 153 Wn.2d at 777. "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." Borrero, 161 Wn.2d at 537.
A person commits robbery when he or she unlawfully takes property from the person of another by force or fear. RCW 9A.56.190. If a person commits robbery while armed with or displaying a deadly weapon, or inflicts bodily injury, the crime is robbery in the first degree. RCW 9A.56.200. An assault in the second degree is committed, among other means, by intentional assault resulting in reckless infliction of substantial bodily harm. RCW 9A.36.021.
An attempt crime is committed when a defendant takes a substantial step with intent to commit the completed crime. RCW 9A.28.020. "The `substantial step' element is . . . a `placeholder' in the statute defining attempt, lacking meaning until the facts of the particular case are considered." Borrero, 161 Wn.2d at 537. To apply the same evidence test involving a completed crime and an attempt crime, the term "substantial step" must be given a factual context so the court can assess whether proof of the attempted crime requires proof of a fact that the other crime does not. Id.
The State charged first degree attempted robbery on the basis that Tagoai intended to take Sugulle's cell phone by the use or threat of force, took a substantial step towards taking the phone, and inflicted bodily injury upon Sugulle:
That [Tagoai] did unlawfully and with intent to commit theft attempt to take personal property of another, to wit: cell phone, from the person and in the presence of Mohamud Sugulle, against his will, by the use or threatened use of immediate force . . ., and in the attempted commission of and in immediate flight therefrom, the defendant inflicted bodily injury on Mohamud Sugulle.
Clerk's Papers at 5. The charge of second degree assault alleged the same facts:
[A] crime of the same or similar character and based on the same conduct as [the attempted robbery], which crimes were part of a common scheme or plan and which crimes were so closely connected in respect to time, place and occasion that it would be difficult to separate proof of one charge from proof of the other, committed as follows:
That the defendant Jacob Levea Tagoai . . . did intentionally assault another and thereby recklessly inflict substantial bodily harm upon Mohamud Sugulle.
Clerk's Papers at 5-6. As charged, the crimes are the same in fact. The crimes are also the same in fact as proved. The State relied on the evidence of the assault to elevate the attempted robbery to first degree.
The State analogizes to State v. Esparza, 135 Wn. App. 54, 143 P.3d 612 (2006), review denied, 161 Wn.2d 1004 (2007), but that case included two separate acts that could serve independently to elevate the robbery to first degree: assault and use of a deadly weapon. Id. at 64. Double jeopardy was not implicated because the State was not required to prove assault in order to prove first degree attempted robbery. Id.
We think this case is more like In re Personal Restraint of Orange, 152 Wn.2d 795, 100 P.3d 291 (2004). There, convictions for first degree attempted murder and first degree assault were held to violate double jeopardy because "the two crimes were based on the same [gunshot] directed at the same victim." Id. at 820. The defendant committed attempted murder in the first degree when he took the substantial step of shooting the victim, and committed first degree assault by committing assault with a firearm. Id. at 820. Likewise here, the only evidence that could elevate the attempted robbery to the first degree was the evidence of the assault.
But the crimes are not the same in law. For this analysis, we must compare the elements the State had to prove at trial. Attempted first degree robbery requires intent to take personal property, whereas second degree assault requires intentional assault. State v. Cook, 69 Wn. App. 412, 415, 848 P.2d 1325 (1993); State v. Allen, 116 Wn. App. 454, 463-64, 66 P.3d 653 (2003); RCW 9A.56.190, .200. As charged here, first degree robbery also required bodily injury, which is "physical pain or injury, illness, or an impairment of physical condition." RCW 9A.04.110(4)(a). Second degree assault, on the other hand, requires substantial bodily harm, defined as "bodily injury which involves a temporary but substantial disfigurement, or which causes a temporary but substantial loss or impairment of the function of any body part or organ, or which causes a fracture of any bodily part." RCW 9A.04.110(4)(b). Thus the State had to prove different criminal intents and different degrees of bodily harm. The crimes are not the same in law, and thus fail the same evidence test.
Merger
Merger is another doctrine we apply to determine legislative intent to impose separate punishments, and it occurs when the degree of one crime is elevated by proof of a separate crime. Freeman controls the analysis. There, defendant Zumwalt punched a woman and stole $300 in cash and casino chips. He was convicted of first degree robbery and second degree assault. The court held that the two crimes merged: "[T]o prove first degree robbery as charged[,] . . . the State had to prove [Zumwalt] committed an assault in furtherance of the robbery. . . . [W]ithout the conduct amounting to assault, [Zumwalt] would be guilty of only second degree robbery." Freeman, 153 Wn.2d at 778. Like Zumwalt, Tagoai was not armed, so to elevate the attempted robbery from second to first degree, the State had to prove that Tagoai inflicted bodily injury on Sugulle. Without the assault, Tagoai could only have been charged with and convicted of attempted second degree robbery. Under Freeman, the crimes merge.
The State again points to Esparza, in which we applied the Freeman analysis but found no merger. In Esparza, however, the State did not have to prove second degree assault to elevate the attempted robbery to first degree because a separate act (entering a store armed with a deadly weapon) raised the attempted robbery to first degree. Esparza, 135 Wn. App. at 66.
The State contends Freeman was wrongly decided, noting that first degree robbery does not require proof of intentional assault or substantial bodily harm, and proof of second degree assault is therefore not required to prove first degree robbery. Whether we agree with that observation is of no moment. Freeman controls our analysis. The State must address its argument to the Supreme Court.
There is an exception to the merger doctrine: if two crimes appear to merge but each had an independent purpose or effect, they may be punished separately. Each crime must have "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)). The exception does not apply merely because a defendant uses more violence than necessary to accomplish the crime. Id. at 779. "The test is whether the unnecessary force had a purpose or effect independent of the crime." Id.
Tagoai's assault did not have a purpose or effect independent of the attempted robbery. According to Sugulle, Tagoai threatened to beat him up on the bus and take the phone. Tagoai's punches pushed Sugulle to the ground, and while Sugulle was lying there, Tagoai felt his pocket looking for the phone. In these circumstances, the force, though certainly more than necessary, was not independent of the robbery. See State v. Prater, 30 Wn. App. 512, 516, 635 P.2d 1104 (1981) (striking of victim was part of the force used to induce victim to find money, and its purpose was to intimidate; the force was not separate and distinct from the robbery). The two crimes merge.
We vacate Tagoai's conviction for second degree assault and remand for resentencing.