IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON, No. 84634-5-I Respondent, DIVISION ONE v. UNPUBLISHED OPINION CHRISTOPHER HOWARD CONKLIN,
Appellant.
HAZELRIGG, A.C.J. — Christopher Conklin appeals from multiple felony
convictions for assault in the first degree, burglary in the first degree, kidnapping
in the first degree, and unlawful possession of a firearm in the second degree.
We accept the State’s concessions as to instructional, evidentiary, and
sentencing errors on all convictions except for unlawful possession of a firearm in
the second degree and the imposition of the DNA1 fee at sentencing.
Accordingly, we remand for the trial court to vacate the erroneous convictions,
resentence Conklin on the remaining charge, and determine whether the DNA
fee is proper.
1 Deoxyribonucleic acid. No. 84634-5-I/2
FACTS
Christopher Conklin was charged with two counts of assault in the first
degree, one count of burglary in the first degree, two counts of kidnapping in the
first degree, and one count of unlawful possession of a firearm in the second
degree. All of the charges except unlawful possession of a firearm carried
additional firearm sentencing enhancements. Prior to trial, Conklin filed motions
in limine seeking to prohibit the State from introducing in-court identifications of
Conklin by the two named victims. He argued the separate pretrial identification
procedures used with each witness were impermissibly suggestive. The trial
court denied the motion with regard to witness Arlen Stebbins but reserved the
issue as to witness John Fryer. During trial, the State did not seek an in-court
identification from Fryer. The jury convicted Conklin on all charges.
Conklin timely appealed.
ANALYSIS
I. State’s Concessions of Error and Issues for Remand
Conklin’s opening brief assigned error to the trial court’s rulings on the
identification procedures used with each of the named victims and the imposition
of the DNA fee at sentencing. Conklin then filed a supplemental brief that raised
several instructional and evidentiary challenges to the kidnapping, assault, and
burglary charges. The State properly conceded error on all issues except those
relating to identification by the witnesses and, as such, we only briefly analyze
the conceded errors here.
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The State expressly agrees with the argument and authority set out in
Conklin’s supplemental brief. Accordingly, the charges of assault in the first
degree with firearm enhancements must merge with those of kidnapping in the
first degree. Under the double jeopardy clause, the State may not impose
multiple punishments for the same offense. State v. Berg, 181 Wn.2d 857, 864,
337 P.3d 310 (2014). Courts utilize the merger doctrine “‘to determine whether
the Legislature intended to impose multiple punishments for a single act which
violates several statutory provisions.’” Id. (quoting State v. Vladovic, 99 Wn.2d
413, 419 n.2, 662 P.2d 853 (1983)). “Even if crimes would otherwise merge,
they can be punished separately if they had an independent purpose or effect.”
State v. Davis, 177 Wn. App. 454, 465, 311 P.3d 1278 (2013). The parties are in
accord that the State relied on the acts of shooting at Fryer and Stebbins as a
basis for the elements of assault and the “intent to inflict bodily injury” element of
kidnapping. Conklin further notes there was no independent purpose or effect
because the State argued the assault was intended to force Fryer and Stebbins
into a vehicle as a basis for the kidnapping conviction; no other purpose or effect
of the shooting was argued or presented. To avoid a double jeopardy violation,
the assaults must merge with the kidnapping charges.
Conklin next avers, and the State concedes, that his convictions for
kidnapping in the first degree must then be reversed because the State did not
provide sufficient evidence to support both of the alternative means. “When a
defendant challenges the sufficiency of the evidence in an alternative means
case, appellate review focuses on whether ‘sufficient evidence supports each
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alternative means.’” State v. Sweany, 174 Wn.2d 909, 914, 281 P.3d 305 (2012)
(quoting State v. Kintz, 169 Wn.2d 537, 552, 238 P.3d 470 (2010)). Under
Washington law, there are five alternative means under which a jury may find a
person guilty of kidnapping in the first degree. RCW 9A.40.020(1).
Here, the court instructed the jury that it could find Conklin guilty of
kidnapping if it found he intentionally abducted Stebbins with the intent to either:
(1) inflict bodily injury, or (2) inflict extreme mental distress. The parties agree
there is insufficient evidence to support the second alternative means, that
Conklin intended to inflict extreme mental distress. An intent to inflict extreme
mental distress “is an intention to cause more mental distress than a reasonable
person would feel when being restrained by the threat of deadly force,” while the
analysis of the level of distress focuses on “the mental state of the defendant
rather than the actual resulting distress.” State v. Garcia, 179 Wn.2d 828, 843,
318 P.3d 266 (2014). The State concedes that, even in the light most favorable
to its position, the statements regarding the kidnapping charges that it relied
upon in closing argument are insufficient to demonstrate an intent to inflict more
extreme emotional distress than a reasonable person would feel when being
restrained by threat of deadly force.
Conklin next contends his conviction for burglary in the first degree must
be reversed because the jury was instructed on an uncharged alternative means.
Because this is a manifest error affecting a constitutional right, we may review
this assignment of error for the first time on appeal. State v. Chino, 117 Wn.
App. 531, 538, 72 P.3d 256 (2003). “Generally, the crime upon which the jury is
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instructed is limited to the offense charged in the information,” except where a
jury is instructed on a lesser included offense. Id. at 539. If the State omits an
alternative means of a crime in the information, “it is error for the trial court to
instruct the jury on uncharged alternatives, regardless of the strength of the trial
evidence.” Id. at 540.
The State charged Conklin with burglary in the first degree, alleging he
“unlawfully and feloniously, with intent to commit a crime against a person or
property therein, enter[ed] or remain[ed] unlawfully in a building” while armed
with a deadly weapon. However, at trial, the court instructed the jury it could find
Conklin guilty of burglary in the first degree if it found that he “was armed with a
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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON, No. 84634-5-I Respondent, DIVISION ONE v. UNPUBLISHED OPINION CHRISTOPHER HOWARD CONKLIN,
Appellant.
HAZELRIGG, A.C.J. — Christopher Conklin appeals from multiple felony
convictions for assault in the first degree, burglary in the first degree, kidnapping
in the first degree, and unlawful possession of a firearm in the second degree.
We accept the State’s concessions as to instructional, evidentiary, and
sentencing errors on all convictions except for unlawful possession of a firearm in
the second degree and the imposition of the DNA1 fee at sentencing.
Accordingly, we remand for the trial court to vacate the erroneous convictions,
resentence Conklin on the remaining charge, and determine whether the DNA
fee is proper.
1 Deoxyribonucleic acid. No. 84634-5-I/2
FACTS
Christopher Conklin was charged with two counts of assault in the first
degree, one count of burglary in the first degree, two counts of kidnapping in the
first degree, and one count of unlawful possession of a firearm in the second
degree. All of the charges except unlawful possession of a firearm carried
additional firearm sentencing enhancements. Prior to trial, Conklin filed motions
in limine seeking to prohibit the State from introducing in-court identifications of
Conklin by the two named victims. He argued the separate pretrial identification
procedures used with each witness were impermissibly suggestive. The trial
court denied the motion with regard to witness Arlen Stebbins but reserved the
issue as to witness John Fryer. During trial, the State did not seek an in-court
identification from Fryer. The jury convicted Conklin on all charges.
Conklin timely appealed.
ANALYSIS
I. State’s Concessions of Error and Issues for Remand
Conklin’s opening brief assigned error to the trial court’s rulings on the
identification procedures used with each of the named victims and the imposition
of the DNA fee at sentencing. Conklin then filed a supplemental brief that raised
several instructional and evidentiary challenges to the kidnapping, assault, and
burglary charges. The State properly conceded error on all issues except those
relating to identification by the witnesses and, as such, we only briefly analyze
the conceded errors here.
-2- No. 84634-5-I/3
The State expressly agrees with the argument and authority set out in
Conklin’s supplemental brief. Accordingly, the charges of assault in the first
degree with firearm enhancements must merge with those of kidnapping in the
first degree. Under the double jeopardy clause, the State may not impose
multiple punishments for the same offense. State v. Berg, 181 Wn.2d 857, 864,
337 P.3d 310 (2014). Courts utilize the merger doctrine “‘to determine whether
the Legislature intended to impose multiple punishments for a single act which
violates several statutory provisions.’” Id. (quoting State v. Vladovic, 99 Wn.2d
413, 419 n.2, 662 P.2d 853 (1983)). “Even if crimes would otherwise merge,
they can be punished separately if they had an independent purpose or effect.”
State v. Davis, 177 Wn. App. 454, 465, 311 P.3d 1278 (2013). The parties are in
accord that the State relied on the acts of shooting at Fryer and Stebbins as a
basis for the elements of assault and the “intent to inflict bodily injury” element of
kidnapping. Conklin further notes there was no independent purpose or effect
because the State argued the assault was intended to force Fryer and Stebbins
into a vehicle as a basis for the kidnapping conviction; no other purpose or effect
of the shooting was argued or presented. To avoid a double jeopardy violation,
the assaults must merge with the kidnapping charges.
Conklin next avers, and the State concedes, that his convictions for
kidnapping in the first degree must then be reversed because the State did not
provide sufficient evidence to support both of the alternative means. “When a
defendant challenges the sufficiency of the evidence in an alternative means
case, appellate review focuses on whether ‘sufficient evidence supports each
-3- No. 84634-5-I/4
alternative means.’” State v. Sweany, 174 Wn.2d 909, 914, 281 P.3d 305 (2012)
(quoting State v. Kintz, 169 Wn.2d 537, 552, 238 P.3d 470 (2010)). Under
Washington law, there are five alternative means under which a jury may find a
person guilty of kidnapping in the first degree. RCW 9A.40.020(1).
Here, the court instructed the jury that it could find Conklin guilty of
kidnapping if it found he intentionally abducted Stebbins with the intent to either:
(1) inflict bodily injury, or (2) inflict extreme mental distress. The parties agree
there is insufficient evidence to support the second alternative means, that
Conklin intended to inflict extreme mental distress. An intent to inflict extreme
mental distress “is an intention to cause more mental distress than a reasonable
person would feel when being restrained by the threat of deadly force,” while the
analysis of the level of distress focuses on “the mental state of the defendant
rather than the actual resulting distress.” State v. Garcia, 179 Wn.2d 828, 843,
318 P.3d 266 (2014). The State concedes that, even in the light most favorable
to its position, the statements regarding the kidnapping charges that it relied
upon in closing argument are insufficient to demonstrate an intent to inflict more
extreme emotional distress than a reasonable person would feel when being
restrained by threat of deadly force.
Conklin next contends his conviction for burglary in the first degree must
be reversed because the jury was instructed on an uncharged alternative means.
Because this is a manifest error affecting a constitutional right, we may review
this assignment of error for the first time on appeal. State v. Chino, 117 Wn.
App. 531, 538, 72 P.3d 256 (2003). “Generally, the crime upon which the jury is
-4- No. 84634-5-I/5
instructed is limited to the offense charged in the information,” except where a
jury is instructed on a lesser included offense. Id. at 539. If the State omits an
alternative means of a crime in the information, “it is error for the trial court to
instruct the jury on uncharged alternatives, regardless of the strength of the trial
evidence.” Id. at 540.
The State charged Conklin with burglary in the first degree, alleging he
“unlawfully and feloniously, with intent to commit a crime against a person or
property therein, enter[ed] or remain[ed] unlawfully in a building” while armed
with a deadly weapon. However, at trial, the court instructed the jury it could find
Conklin guilty of burglary in the first degree if it found that he “was armed with a
deadly weapon or assaulted a person.” (Emphasis added.) While this “error may
be harmless if other instructions clearly and specifically define the charged
crime,” that is not the case here. See Id. at 540. The State concedes the court
erred in instructing the jury on an uncharged alternate means and that reversal is
necessary.
Finally, the State agrees that remand is appropriate so that the trial court
may determine whether Conklin has already paid the mandatory DNA fee
pursuant to a prior felony conviction. RCW 43.43.7541 requires that every
sentence for a felony “must include a fee of one hundred dollars unless the state
has previously collected the offender’s DNA as a result of a prior conviction.”
The trial court found Conklin indigent and waived all discretionary fines; if it
concludes on remand that Conklin previously paid the DNA fee, it should be
stricken from the judgment and sentence.
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We accept the State’s concessions on these errors and remand for the
court to resentence Conklin after merging the charges of assault in the first
degree with those of kidnapping and vacating the convictions for kidnapping in
the first degree and burglary in the first degree. On remand, the court should
also determine whether the DNA fee is appropriate here or should be waived as
previously paid.
II. Witness Identification
Conklin also assigns error to the trial court’s handling of his pretrial
motions to suppress an identification by Fryer obtained using a “show-up”
procedure, and any in-court identification of Conklin by Stebbins. Because the
State relied on the testimony of both Fryer and Stebbins to prove Conklin
unlawfully possessed a firearm, now the only remaining conviction, we address
each argument in turn.
We review decisions on the admissibility of evidence for an abuse of
discretion. State v. Birch, 151 Wn. App. 504, 514, 213 P.3d 63 (2009). A trial
court abuses its discretion if its decision is based on untenable grounds or
untenable reasons. Id. Under the due process clause of the federal constitution,
eyewitness identification evidence must be excluded if it: “(1) was obtained by an
unnecessarily suggestive police procedure and (2) lacks reliability under the
totality of the circumstances.” State v. Derri, 199 Wn.2d 658, 673-74, 511 P.3d
1267 (2022).
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A. Show-Up Identification
Conklin first argues Fryer’s identification of Conklin as one of the
perpetrators should have been suppressed because the pretrial “show-up”
identification procedure was impermissibly suggestive. 2 “Show-up identification
is typical shortly after a crime occurs when police show a suspect to a witness or
victim.” Birch, 151 Wn. App. at 513. Show-up procedures are “not per se
impermissibly suggestive,” rather, the defendant must demonstrate “that the
procedure was unnecessarily suggestive.” State v. Guzman-Cuellar, 47 Wn.
App. 326, 335, 734 P.2d 966 (1987). However, we need not analyze whether
Conklin has met this burden because Fryer never identified Conklin in court.
The day after Fryer testified about participating in a show-up identification
of a suspect on the same day as the incident, the court asked the prosecutor if
he intended “to ask Mr. Fryer whether he recognizes either of the defendants;”
the prosecutor confirmed he would not be seeking such an identification. The
court stated, “Okay. Then that won’t be an issue.” Because there was no in-court
identification admitted, there is no error. While Fryer described participating in
the show-up, he never connected the show-up, or any description of the suspects
he saw, to Conklin.3 Conklin fails to demonstrate a basis for relief on this
challenge.
2 While Conklin frames this assignment of error as the trial court denying his motion to
suppress, the record reflects that the court reserved on the issue. The court never made a subsequent ruling (written or oral) granting or denying the motion. 3 At trial, the State informed the judge that it would not seek to elicit an in-court
identification from Fryer, and it did not do so during Fryer’s testimony. However, in its closing argument, the State asserted that Fryer identified Conklin the morning of the incident in the police show-up procedure. While there is no testimony to support this statement, Conklin does not assign error to this comment and, as such, the issue is not before us.
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B. Photo Montage Identification
Conklin also argues the court should have suppressed the in-court
identification by Stebbins because the pretrial photo montage identification by
law enforcement was impermissibly unreliable. He asks us to revisit the case
State v. Knight, 46 Wn. App. 57, 729 P.2d 645 (1986). There, Division Two of
this court held that where a pretrial photographic identification procedure is
impermissibly suggestive due to the actions of private citizens, exclusion is not
required. 46 Wn. App. at 59. Rather, suppression is only necessary where the
State “‘instigated, encouraged, counseled, directed, or controlled the conduct.’”
Id. at 59-60 (quoting State v. Agee, 15 Wn. App. 709, 713-14, 552 P.2d 1084
(1976)). Conklin does not argue that the State controlled or directed the pretrial
conduct, but rather that changes to information access and social media
necessitate new guidance. We disagree.
“An out-of-court photographic identification violates due process if it so
impermissibly suggestive as to give rise to a substantial likelihood of irreparable
misidentification.” State v. Vickers, 148 Wn.2d 91, 118, 59 P.3d 58 (2002).
Here, Conklin contends the police photo montage procedure was impermissibly
suggestive because, prior to viewing the montage, Stebbins’s wife “had used the
county jail roster to learn the names of the individuals arrested in connection with
the incident,” then “used social media to find photos of Mr. Conklin . . . and
showed them to Stebbins.” Conklin also notes that Stebbins described the
suspect on the night of the incident as having “orange blond” hair and a “blond,
more blonder mustache.” The officer who created the photo montage did not add
-8- No. 84634-5-I/9
blond hair or a blond mustache in the search criteria, though he stated “it may
have already been defaulted to there.”
Conklin roots this challenge in Stebbins’s exposure to the results of his
wife’s online research prior to the police photo montage. This alone is insufficient
to demonstrate the procedure used by police was unnecessarily suggestive.
Rather, the private investigation by Stebbins’s wife goes to the weight, not the
admissibility, of the identification he later made when police presented the photo
montage. Conklin had the opportunity to cross-examine Stebbins on the
procedure, including the change in his description of the alleged intruder, and the
record reflects that he did so at length. Stebbins admitted that, prior to viewing
the police montage, he “viewed some photographs that [his] wife found” based
on names published by the State on “the jail roster.” Stebbins also
acknowledged that Conklin, at the time of trial, had dark hair, a dark mustache,
and a dark beard. Stebbins conceded that, in his interview with officers only
hours after the incident, he identified the alleged intruder as “a man with orange-
blond hair” and a “blonder than blond mustache.”
Conklin fails to meet his burden to demonstrate that the photo montage
procedure utilized by law enforcement was unnecessarily suggestive. Further,
he was able to cross-examine Stebbins at length about his wife’s outside
research and the inconsistencies in his various identifications and descriptions.
As such, the court did not abuse its discretion in admitting the eyewitness
identification evidence from the police photo montage.
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Reversed in part, affirmed in part, and remanded for further proceedings
consistent with this opinion.
WE CONCUR:
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