FILED JULY 16, 2019 In the Office of the Clerk of Court WA State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE
STATE OF WASHINGTON, ) No. 35958-1-III ) Respondent, ) ) v. ) UNPUBLISHED OPINION ) LICO LAVAR MCKINNIE, ) ) Appellant. )
LAWRENCE-BERREY, C.J. — A trial court found Lico McKinnie guilty of
attempted first degree assault and first degree robbery. McKinnie appeals, and argues
double jeopardy jurisprudence requires his attempted first degree assault conviction to be
vacated. We agree and vacate that conviction. By motion, McKinnie requests that we
direct the trial court to strike the criminal filing fee cost and the deoxyribonucleic (DNA)
collection fee. The State does not oppose McKinnie’s motion, and we grant it. No. 35958-1-III State v. McKinnie
In a statement of additional grounds for review (SAG), McKinnie raises six
grounds for reversing one or both of his convictions. We decline to reverse his
conviction for first degree robbery.
FACTS
On August 31, 2016, Desirae McMichael left her apartment with a bag of garbage,
got in her car, and stopped near the apartment complex’s dumpster to dispose of the trash.
She left her car door open and her car running. McKinnie jumped inside and began to
drive away.
McMichael then jumped on the hood of her car, but McKinnie accelerated.
Multiple witnesses saw McKinnie repeatedly swerving and driving very fast through the
parking lot while McMichael held onto the hood of her car. McMichael screamed for
help and for McKinnie to stop. As McKinnie turned out of the parking lot, McMichael
fell to the ground and was struck by a tire.
Ten minutes later, McKinnie crashed McMichael’s car into another car.
McMichael’s car was severely damaged, and McKinnie did not flee far. A nearby officer
apprehended McKinnie and later learned that the damaged car was stolen.
McMichael sustained serious injuries, including abrasions to her face and knee, a
concussion, and permanent nerve damage to her leg.
2 No. 35958-1-III State v. McKinnie
Trial
The State charged McKinnie with attempted first degree assault of McMichael and
first degree robbery of her car. McKinnie waived his right to a jury trial. The State’s
witnesses testified consistent with the facts above.
McKinnie also testified. He testified he was visiting a friend on the second floor
of the apartment complex. Outside his friend’s window, he saw a short Hispanic man
with a bandana around his face holding a pistol. He then jumped out the window, hurt his
ankle, and saw the Hispanic man and others. Thinking they were going to kill him, he
made use of McMichael’s car after she hopped out. He testified he did not stop after
McMichael jumped on the car because he was being chased by a truck and feared for his
life.
No witness testified to seeing a Hispanic man with a bandana or a truck chasing
McKinnie. One witness testified to seeing McKinnie drop from an upper floor window,
hurt himself, and then wait around for about 10 minutes before taking McMichael’s car.
The trial court did not find McKinnie’s story credible. It found McKinnie guilty of
both charges and entered findings of fact and conclusions of law.
Thereafter, the trial court entered a judgment of conviction for both offenses. The
judgment reflects McKinnie’s offender score of 9+ for both offenses. For the attempted
3 No. 35958-1-III State v. McKinnie
first degree assault conviction, the judgment shows a seriousness level of XII, a standard
range of 180-238.5 months, but a maximum term of 120 months. For the first degree
robbery conviction, the judgment shows a seriousness level of IX, and a standard range of
129-171 months. The trial court imposed a sentence of 120 months for the attempted first
degree assault conviction, and 165 months for the first degree robbery conviction. It
ordered the sentences to be served concurrently for a total sentence of 165 months.
McKinnie appealed to this court.
ANALYSIS
McKinnie contends that his conviction for attempted first degree assault violates
the prohibition against double jeopardy.
A. DOUBLE JEOPARDY
Standard of Review
The proper interpretation and application of the double jeopardy clauses of the
Fifth Amendment to the United States Constitution and article I, section 9 of the
Washington Constitution are questions of law that are reviewed de novo. In re Pers.
Restraint of Francis, 170 Wn.2d 517, 523, 242 P.3d 866 (2010).
4 No. 35958-1-III State v. McKinnie
1. Reviewability of unpreserved error
Citing RAP 2.5(a), the State correctly notes that this court generally refrains from
reviewing unpreserved errors. But RAP 2.5(a)(3) permits review of unpreserved claims
of error if they involve a manifest error affecting a constitutional right. The State argues
the purported error is not prejudicial because McKinnie has an offender score of 9+ and
vacation of his assault conviction would not reduce his sentence. McKinnie responds that
he is prejudiced by a conviction that the legislature did not intend.
One consideration for whether a claim is manifest is whether the facts are
sufficiently developed to review it. State v. McFarland, 127 Wn.2d 322, 333, 899 P.2d
1251 (1995). Because the facts are sufficiently developed for us to review McKinnie’s
constitutional claim, we exercise our discretion and review it.
2. General principles of double jeopardy
The guarantee against double jeopardy protects persons from multiple punishments
for the same offense. State v. Calle, 125 Wn.2d 769, 776, 888 P.2d 155 (1995). “A court
entering multiple convictions for the same offense violates double jeopardy.” Francis,
170 Wn.2d at 523. “Because the legislature has the power to define offenses, whether
two offenses are separate offenses hinges upon whether the legislature intended them to
be separate.” Id.
5 No. 35958-1-III State v. McKinnie
3. Express or implied legislative intent
Washington courts look first to the statutory language to determine if the
legislature expressly intended multiple punishments for two offenses. State v. Jackman,
156 Wn.2d 736, 746, 132 P.3d 136 (2006). Here, the relevant statutes provide no
express statements whether attempted first degree assault and first degree robbery are
intended to be punished separately. See RCW 9A.36.011(1)(a); RCW 9A.28.020(1);
RCW 9A.56.200.
Washington courts also look to any implied legislative intent to determine if the
legislature intended multiple punishments for two offenses. State v. Freeman, 153 Wn.2d
765, 775, 108 P.3d 753 (2005). When a court vacates a conviction on double jeopardy
grounds, it usually vacates the conviction for the crime that forms part of the proof of the
other. Id. This is because the greater offense typically carries a penalty that incorporates
punishment for the lesser included offense. Id.
The Freeman court noted that when first degree assault raises a robbery to first
degree, the case is atypical because first degree assault carries a longer standard range
sentence than first degree robbery. Id. The Freeman court concluded that this sentencing
anomaly implied the legislature intended to punish first degree assault and first degree
robbery separately. Id. at 776.
6 No. 35958-1-III State v. McKinnie
The State argues that Freeman requires us to affirm the attempted first degree
assault conviction; whereas McKinnie argues that Freeman supports the opposite result.
Despite the parties’ arguments, we do not discern any implied legislative intent in this
situation. Like the result in Freeman, the seriousness level for attempted first degree
assault, XII, is higher than that for first degree robbery, IX. But unlike the result in
Freeman, because attempted first degree assault is a class B felony, the maximum
sentence of 10 years is shorter than McKinnie’s standard range sentence for first degree
robbery, given his 9+ offender score. The evidence of implied legislative intent is mixed,
so we do not discern any implied legislative intent.
4. Other evidence of legislative intent
If it is unclear whether the legislature intended to punish the two crimes separately,
we discern legislative intent by first applying the Blockburger1 test and then the merger
doctrine. Francis, 170 Wn.2d at 523. These two considerations inform but do not
compel our outcome. Id. The underlying question remains whether the legislature
intended the offenses to be the same. Id. This determination is made on a case-by-case
basis. Id.
1 Blockburger v. United States, 284 U.S. 299, 52 S. Ct. 180, 76 L. Ed. 305 (1932).
7 No. 35958-1-III State v. McKinnie
a. Blockburger test
Under Blockburger, also known as the “same evidence” test, if each crime contains
an element that the other does not, we presume the crimes are not the same offense for
double jeopardy purposes. Freeman, 153 Wn.2d at 772. We look to the nature of the
offenses as they were actually charged and proved. Francis, 170 Wn.2d at 535 (Madsen,
C.J., concurring).
Here, attempted first degree assault contains different elements than first degree
robbery. As charged and proved, attempted first degree assault required the State to
prove that McKinnie, with intent to commit the crime of first degree assault, intended to
inflict great bodily harm on McMichael by force or means likely to produce great bodily
harm or death. As charged and proved, first degree robbery required the State to prove
that McKinnie, with the intent to commit theft, took McMichael’s car by use of
immediate force and inflicted injury upon her. Here, proof of great bodily harm was
required to obtain a conviction for attempted first degree assault, but such proof was not
required to obtain a conviction for first degree robbery. In addition, proof that McKinnie
intended to commit theft was required for first degree robbery, but such proof was not
required to obtain a conviction for attempted first degree assault. Under the Blockburger
test, the two crimes are thus separate.
8 No. 35958-1-III State v. McKinnie
b. Merger doctrine
The merger doctrine is a tool of statutory interpretation used to determine whether
the legislature intended to impose multiple punishments for a single act that violates
several statutory provisions. State v. Michielli, 132 Wn.2d 229, 238, 937 P.2d 587
(1997). When the conduct of one offense elevates the degree of the second offense, the
offenses merge to avoid double jeopardy. State v. Vladovic, 99 Wn.2d 413, 419, 662 P.2d
853 (1983). Here, it is clear that an assault elevates the degree of robbery from second
degree to first degree.
But there exists a well-established exception to the merger doctrine: when the two
crimes have an independent purpose or effect, they can be punished separately even
though one crime forms part of the other. Freeman, 153 Wn.2d at 773.
An assault is frequently committed as part of the commission of some other crime. In such a case, the defendant cannot be convicted of both assault and the other crime, unless the assault involves some injury that is separate and distinct from the other crime, and not merely incidental to it. This remains true even if the assault involved the infliction of bodily harm beyond the minimum required to constitute the other crime. On the other hand, a defendant can be separately convicted for an assault that did not further the commission of the underlying crime. There can also be a separate conviction for an assault committed after completion of the other crime, whether for the purpose of escape or to aid commission of a new crime.
9 No. 35958-1-III State v. McKinnie
13A SETH A. FINE & DOUGLAS J. ENDE, WASHINGTON PRACTICE: CRIMINAL LAW
§ 305(5) at 45-46 (2d ed. 1998) (emphasis added).
Here, McKinnie did not commit first degree robbery until he used actual force to
take McMichael’s car. That is, first degree robbery did not occur by virtue of McKinnie
jumping into McMichael’s open and running car. First degree robbery occurred only
when McMichael jumped on the hood of her car and McKinnie used force by swerving
and accelerating the car in an attempt to dislodge her. Here, McMichael’s injury was not
separate and distinct from the conduct that formed first degree robbery.
Under the particular facts here, where the acts that underlie the attempted first
degree assault conviction were not separate and distinct from the acts that underlie the
first degree robbery conviction, we conclude that the legislature did not intend to punish
offenders separately for attempted assault. We, therefore, conclude that McKinnie’s
conviction for attempted first degree assault must be vacated so as not to offend double
jeopardy.
McKinnie concedes that resentencing is not required because the vacated sentence
was a lesser concurrent sentence. We nevertheless direct the trial court to enter either an
amended judgment or an order noting that the attempted first degree assault conviction
has been vacated.
10 No. 35958-1-III State v. McKinnie
B. STRIKING OF CRIMINAL FILING FEE AND DNA COLLECTION FEE
McKinnie filed a motion requesting that we direct the trial court to strike the $200
criminal filing fee cost and the DNA collection fee imposed by the trial court. By letter
dated October 23, 2018, we directed the State, if it wished to respond to McKinnie’s
motion, to do so in its respondent’s brief. The State declined to respond.
In State v. Ramirez, 191 Wn.2d 732, 426 P.3d 714 (2018), the court held that
House Bill 1783 applies prospectively to cases pending on direct review as of June 7,
2018, when the bill was enacted. This case was pending on direct review as of that date.
House Bill 1783 therefore applies to this case.
House Bill 1783 prohibits a trial court from imposing the $200 criminal filing on
indigent defendants. Id. at 749. Here, McKinnie is indigent. We therefore grant
McKinnie’s request and direct the trial court to strike the $200 criminal filing fee.
House Bill 1783 also prohibits a trial court from imposing the $100 DNA
collection fee against an offender whose DNA has been previously collected. LAWS OF
2018, ch. 269, § 18. Since 1994, persons convicted of a felony have been required to
provide a DNA sample. See RCW 43.43.754(1)(a). McKinnie, who has a 9+ offender
score, has been convicted of numerous felonies. It is almost certain that McKinnie’s
DNA has been previously collected. On remand, we direct the trial court to strike the
11 No. 35958-1-III State v. McKinnie
$100 DNA collection fee unless the State establishes that McKinnie has not had his DNA
previously collected.
C. STATEMENT OF ADDITIONAL GROUNDS FOR REVIEW
McKinnie submits six additional grounds for this court’s review.
SAG 1: REASONABLE DOUBT OF ATTEMPTED FIRST DEGREE ASSAULT
McKinnie claims that the court erred by convicting him of attempted first degree
assault. Because we conclude that this conviction must be vacated, SAG 1 is moot.
SAG 2: PROSECUTORIAL MISCONDUCT
McKinnie contends the prosecutor committed misconduct by withholding medical
records from him in violation of Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L.
Ed. 2d 215 (1963). He claims that these medical records contradicted the victim’s
testimony regarding her injuries.
Issues that involve facts or evidence not in the record are properly raised through a
personal restraint petition, not an SAG. State v. Alvarado, 164 Wn.2d 556, 569, 192 P.3d
345 (2008). Because McKinnie refers to medical records that are not part of the record,
we will not address this claim.
12 No. 35958-1-III State v. McKinnie
SAG 3: MIRANDA2 VIOLATION
McKinnie claims that law enforcement committed a Miranda violation following
the car accident and prior to his arrest. He alleges the trial court erred by concluding that
he was not in custody when he made voluntary statements to law enforcement.
Following a CrR 3.5 hearing as to the admissibility of McKinnie’s prearrest
statements, the court made the following findings of fact:
1. On August 31, 2016, Trooper Taylor responded to a location on State Route 2 regarding a 2-car collision. 2. The defendant was observed driving a silver vehicle that was involved in the collision. 3. The defendant got out of the car and walked towards Trooper Taylor. 4. Trooper Taylor noticed that the defendant was slightly limping. 5. Trooper Taylor then questioned the defendant regarding his involvement in the collision and his association with the silver vehicle.
Clerk’s Papers (CP) at 59-60 (Findings of Fact and Conclusions of Law—CrR 3.5
Hearing). From the foregoing findings of fact, the court made the following conclusions
of law:
1. The defendant was not under arrest when he initially contacted Trooper Taylor. 2. Trooper Taylor’s questioning of the defendant was part of a routine, general investigation in which the defendant voluntarily cooperated. 3. The defendant’s statements to Trooper Taylor were made knowingly and voluntarily given.
2 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
13 No. 35958-1-III State v. McKinnie
4. Trooper Taylor was not required to advise the defendant of his Miranda warnings. 5. The defendant’s statements are admissible in the State’s case in chief. 6. There is no 5th Amendment violation which would warrant the suppression of the defendant’s voluntary statements in the case at bar.
CP at 60.
We review alleged Miranda violations de novo. State v. Dykstra, 127 Wn. App. 1,
7, 110 P.3d 758 (2005). CrR 3.5 provides that when the State will offer a statement of the
accused as evidence, the court must hold a hearing to determine whether the statement is
admissible. State v. Ustimenko, 137 Wn. App. 109, 115, 151 P.3d 256 (2007). Generally,
statements made while an accused is in custodial interrogation are not admissible unless
the accused was first advised of his or her constitutional right to counsel and privilege
against self-incrimination. Id. This court reviews the trial court’s custodial determination
de novo. Id. To determine whether a person is in custody for Miranda purposes, we ask
whether a reasonable person in the individual’s position would believe he or she was in
police custody to a degree associated with formal arrest. Id.
In the present case, Trooper James Taylor arrived at the scene of a car accident and
observed two cars that had been in an accident. The people gathered around the cars
informed him that a third car had been involved in the accident, but had left the scene. As
14 No. 35958-1-III State v. McKinnie
Trooper Taylor was speaking with the witnesses, the third car came driving by, “spouting
smoke,” and the witnesses informed him that it was the car involved in the accident.
Report of Proceedings (Oct. 2, 2017) at 20. The car headed toward the south entrance of
the parking lot, made a u-turn and approached Trooper Taylor. As Trooper Taylor
walked toward the car, McKinnie exited and limped toward Trooper Taylor. Trooper
Taylor asked if McKinnie was okay and asked about the car collision. McKinnie
acknowledged that he hit one of the cars and then he gave an account of how he had
jumped out of an apartment building because he was being chased.
Trooper Taylor asked if McKinnie was the registered owner of the car and
McKinnie acknowledged that he was not, but that the owner had winked and nodded to
give him permission to drive it.
The conversation paused while Trooper Taylor approached the car McKinnie had
been driving. The car was still running and was emitting large amounts of smoke.
Trooper Taylor then saw a woman’s purse and wallet lying on the passenger’s seat.
McKinnie was then transported to Sacred Heart Medical Center for his injuries.
The court held that Trooper Taylor was at the scene to investigate the traffic
collision. McKinnie voluntarily exited his car and walked toward Trooper Taylor.
Trooper Taylor only asked routine questions about the collision and attempted to
15 No. 35958-1-III State v. McKinnie
determine McKinnie’s identity and the identity of the registered owner of the car. For
purposes of Miranda, the court held that McKinnie was not subjected to custodial
interrogation.
We agree that McKinnie was not in custody when the questioning occurred.
Trooper Taylor’s questions were focused on investigating the collision, and Trooper
Taylor was not asking questions that would elicit an incriminating response from
McKinnie with respect to the present charges. Accordingly, a reasonable person in
McKinnie’s position would not have felt that he or she was in police custody to a degree
associated with formal arrest. Thus, the court did not err by ruling that McKinnie’s pre-
Miranda statements were admissible.
SAG 4: SPEEDY TRIAL RIGHT
McKinnie claims that the trial court abused its discretion and violated his speedy
trial rights by putting him through frivolous mental health competency proceedings.
This court reviews alleged speedy trial violations de novo. State v. Harris, 122
Wn. App. 498, 504, 94 P.3d 379 (2004).
If a defendant pleads not guilty by reason of insanity, or if the court has reason to
doubt the defendant’s competency to stand trial, the court must order an expert evaluation
of the defendant’s mental condition. RCW 10.77.060(1)(a). The court may do this on its
16 No. 35958-1-III State v. McKinnie
own motion. RCW 10.77.060(1)(a). The “reason to doubt” language “vests a large
measure of discretion in the trial judge.” City of Seattle v. Gordon, 39 Wn. App. 437,
441, 693 P.2d 741 (1985).
The court rules provide that proceedings related to competency toll the time for
trial. CrR 3.3(e)(1).
The following periods shall be excluded in computing the time for trial: (1) Competency Proceedings. All proceedings relating to the competency of a defendant to stand trial on the pending charge, beginning on the date when the competency examination is ordered and terminating when the court enters a written order finding the defendant to be competent.
CrR 3.3(e).
In light of the bizarre explanation that McKinnie gave law enforcement as to how
and why he stole McMichael’s vehicle, the court was well within its discretion to order a
competency proceeding. McKinnie’s time for trial was tolled during the pendency of the
proceedings. McKinnie’s argument that his speedy trial rights were violated fails.
SAG 5: TROOPER TAYLOR’S TESTIMONY
McKinnie claims that the trial court abused its discretion by using Trooper
Taylor’s testimony to make its findings of guilt. He avers that the court erroneously
considered CrR 3.5 statements to make findings when the court stated that it would not.
17 No. 35958-1-III State v. McKinnie
“[T]he appellate court will not consider a defendant’s statement of additional
grounds for review if it does not inform the court of the nature and occurrence of alleged
errors.” RAP 10.10(c). Insofar as McKinnie claims that the court improperly considered
his pre-Miranda statements or Trooper Taylor’s statements when making a determination
of guilt, we reject his claim. The trial court found McKinnie’s testimony at trial not
credible because it contradicted numerous other witnesses who testified. We otherwise
reject this additional ground for review because it fails to inform this court of the nature
of the alleged error.
SAG 6: MOTION FOR NEW TRIAL: INEFFECTIVE ASSISTANCE OF COUNSEL
McKinnie claims that his motion for a new trial should have been granted based on
newly discovered evidence—namely, the medical records of the victim. McKinnie filed a
pro se motion for new trial on February 7, 2018. The court’s ruling on the motion was
not made part of the record. The medical records of the victim are also not part of the
present record.
Issues that involve facts or evidence not in the record are properly raised through a
personal restraint petition, not a SAG. Alvarado, 164 Wn.2d at 569. Accordingly, we
will not consider McKinnie’s claim concerning the victim’s medical records.
18 No. 35958-1-III State v. McKinnie
McKinnie next claims that he received ineffective assistance of counsel when his
attorney withdrew from representation and he was not appointed new counsel. To protect
a defendant’s right to counsel, a defendant has the right to receive effective assistance of
counsel. Strickland v. Washington, 466 U.S. 668, 686, 104 S. Ct. 2052, 80 L. Ed. 2d 674
(1984). An allegation of ineffective assistance of counsel is a mixed question of law and
fact that we review de novo. Id. at 698. To determine whether counsel provided effective
assistance, we apply a two-pronged test: (1) whether counsel’s performance was
deficient, and (2) whether that deficient performance prejudiced the defendant to an
extent that changed the result of the trial. Id. at 687. We can address the second prong
initially “[i]f it is easier to dispose of an ineffectiveness claim on the ground of lack of
sufficient prejudice.” Id. at 697. Even if trial counsel performed deficiently by
withdrawing, McKinnie has not established prejudice. McKinnie has not explained what
arguments his attorney could have made to merit a new trial. Accordingly, we reject his
claim that he received ineffective assistance of counsel.
We affirm McKinnie’s conviction for first degree robbery, vacate his conviction
for first degree attempted assault, and direct the trial court to strike the criminal filing fee
and the DNA collection fee.
19 No. 35958-1-111 State v. McKinnie
A majority of the panel has determined this opinion will not be printed in the
Washington Appellate Reports, but it will be filed for public record pursuant to
RCW 2.06.040.
L.... .,_1.r,, "· - (st1vt.. t t · C.. ~ . Lawrence-Berrey, C.J.
WE CONCUR:
Fearing, J. Pennell, J.