Filed Washington State Court of Appeals Division Two
January 31, 2023
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II STATE OF WASHINGTON, No. 55793-2-II
Respondent,
v. UNPUBLISHED OPINION NEIL ALLEN ALWAY,
Appellant.
PRICE, J. — Neil Alway appeals his convictions for first degree murder, second degree
murder, first degree kidnapping, and first degree robbery, with firearm enhancements for each.
Alway argues that (1) the State committed prosecutorial misconduct for using the nickname “Pit
Bull” during trial and closing argument, (2) he received ineffective assistance of counsel for his
defense counsel’s failure to object to the use of the nickname at trial and closing argument, (3) the
sentencing court erred in sentencing his first degree murder and first degree kidnapping
convictions consecutively as separate and distinct criminal conduct, and (4) his judgment and
sentence has scrivener’s errors that require correction. Alway also raises additional issues in a
statement of additional grounds. We affirm Alway’s convictions, but remand to the trial court to
correct the scrivener’s errors in the judgment and sentence. No. 55793-2-II
FACTS
I. BACKGROUND FACTS
In mid-April 2017, Alway’s friend, Cheryl Penticoff, told him her ex-boyfriend, Raymond
Brandon, and his then girlfriend Allison Fields, were living in Penticoff’s car and she wanted it
returned. Alway said he would get the car back for her.
One week later, on the morning of April 20, Alway was at a friend’s house, smoking meth,
with a group of people. The home belonged to Traci Mendez, who was there that morning. Also
present were Ashley Barry, John West, and Ashley Wideman. Mendez, who would often allow
Brandon and Fields to use her home to eat, sleep, and use meth, informed the group that Brandon
and Fields would be coming over that morning in Penticoff’s car. The group discussed plans to
recover Penticoff’s car, including the possibility of assaulting Brandon.
Alway, Barry, West, and Wideman hid in the back room of Mendez’s home to wait for
Brandon and Fields to arrive. Alway was armed with a handgun, and West was armed with a
wooden bat.
Once Brandon and Fields arrived at the Mendez home, they made their way to the back
room and were confronted by the group. Alway held Brandon and Fields at gunpoint and yelled
at them to kneel down, remove their clothing, and empty their pockets. Alway then disarmed
Brandon of a gun and handed it to West. Alway and West then forced Brandon at gunpoint to
walk outside the home to a shed in the backyard. Berry, Wideman, Mendez, and Fields remained
inside the home.
Once inside the shed, Brandon tried to get his gun back, causing Alway and West to begin
to brutally beat Brandon. The screaming became so loud that Berry came out of the house to tell
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Alway and West to keep the noise down. After Berry returned inside, Alway took out his gun and
shot Brandon in the chest, killing him.
Alway and West then ran back inside the house and hurriedly left with the group, along
with Fields, in Mendez’s car. Fields, who did not want to be with the group, eventually managed
to escape later that day.
Soon after escaping, Fields went to Brandon’s family and told them what she suspected
happened. Brandon’s family called the police several times over the next few days. Law
enforcement opened a missing person’s investigation and were in the process of executing a search
warrant for Mendez’s home when Brandon’s body was found in the shed one week after the attack.
Five days later, unrelated to the murder, Alway and Berry were arrested for driving a car
with stolen license plates. At the time of the arrest, Alway was in possession of the handgun that
killed Brandon. After Brandon’s body was discovered, Alway was questioned by law enforcement
regarding the murder. While Alway admitted to being at the Mendez’s home on the day of the
attack, he maintained that Brandon was still alive when he left.
The State charged Alway, West, Wideman, and Barry with various crimes, including
murder, kidnapping, robbery, and rendering criminal assistance. In its third amended information,
the State charged Alway with first and second degree murder of Brandon (Counts 1 and 2), first
degree kidnapping of Fields and Brandon (Counts 3 and 4), and first degree robbery of Fields and
Brandon (Counts 5 and 6), with firearm sentencing enhancements for all counts.
3 No. 55793-2-II
II. JURY TRIAL
A. TESTIMONY
Alway’s case proceeded to a lengthy jury trial. The State called over 50 witnesses and
admitted over 500 exhibits during trial. West, Wideman, and Mendez entered into plea agreements
and testified against Alway at trial, consistent with the facts above.
Wideman also offered additional testimony that after she heard a gunshot, Alway and West
frantically ran inside the house, yelling at everyone to leave. She asked West where Brandon was,
and West responded that Brandon was gone, pointed to his chest, and said that it was an accident.
West also testified, stating he understood there would be either a verbal or physical
confrontation once Brandon arrived, but that there was “not exactly” a discussion of “what exactly
was going to go down” when Brandon arrived at the house. 4 Verbatim Report of Proceedings
(VRP) (Apr. 1, 2021) at 1652. West testified that after Alway shot Brandon, Alway yelled, “I
[f**ked] up” and ran, panicked, into the house, yelling at the rest of the group that they needed to
get out. 4 VRP (Apr. 1, 2021) at 1660.
Fields also testified. She testified she previously knew Alway through Brandon, and that
Alway had the nickname Pit Bull. 1 VRP (Mar. 24, 2021) at 438. Throughout her testimony,
Fields referred to Alway only as Pit Bull, using the reference 23 times. The prosecutor referred to
Alway as Pit Bull 13 times when questioning Fields (and defense counsel used the nickname twice
during his questioning of Fields). Alway did not object to the use of Pit Bull during Fields’
testimony or when used by the prosecutor. Fields was the only witness to use Pit Bull consistently
during her testimony; most of the numerous other witnesses never referenced the nickname.
4 No. 55793-2-II
Six police officers testified about various aspects of the arrests of Alway and Berry for
driving a stolen vehicle five days after the murder. They explained how they received information
that Alway was driving a stolen vehicle and pursued him in a Vancouver neighborhood, eventually
arresting him and Berry. They testified Alway possessed a handgun when he was arrested. The
officers testified the Clark County Sheriff’s Office contacted them a few days after their arrest of
Alway to notify them about the murder. The officers then testified about the process of turning
over the evidence found on Alway to the sheriff’s office, including the handgun. Alway did not
object to the officers’ testimony.
A medical examiner testified that Brandon died from a gunshot wound that severed his
aorta. A firearm and toolmark forensic scientist testified she was “100 [percent] confident” the
handgun found in Alway’s possession at the time of his arrest matched the bullet found in
Brandon’s body and the shell casing found inside the shed. 4 VRP (Apr. 1, 2021) at 1750. A DNA
expert testified Alway’s DNA was found on the gun that killed Brandon and on rope found tied
around Brandon’s hands.
B. CLOSING ARGUMENT
During the State’s closing argument and rebuttal, the State referred to Alway as Pit Bull
seven times. The State used the nickname when he was identifying Alway, including five times
when he was identifying who was involved in the attack.
But the State otherwise referred to Alway only as “the defendant” or by his proper name.
The label “defendant” was used over 50 times. Alway did not object to the use of the nickname
during closing argument.
5 No. 55793-2-II
III. VERDICT AND SENTENCING
The jury found Alway guilty on all counts and firearm sentencing enhancements.
At sentencing, the State sought to have Count 3, Brandon’s kidnapping conviction, run
consecutively with Count I, Brandon’s murder conviction. The State argued Alway’s conduct for
first degree murder and first degree kidnapping of Brandon were separate and distinct criminal
conduct because the offenses had different criminal intents and the offenses occurred in two
different locations. Accordingly, the State argued RCW 9.94A.589(1)(b)1 required the respective
sentences to run consecutively. Alway responded the offenses were all part of one event and,
therefore, not separate and distinct criminal conduct.
The trial court agreed with the State, stating, “The murder count and the kidnap counts are
separate and distinct conduct. That’s the finding of the [c]ourt at this time. Two different intents
and in the case of Ms. Fields, two different victims.” 5 VRP (May 7, 2021) at 2283. The trial court
sentenced Alway to 850 months confinement, to run consecutively with two prior offenses.2
Alway appeals.
1 Sentences involving “two or more serious violent offenses arising from separate and distinct criminal conduct” are to be served consecutively. 2 Alway was sentenced to nine months confinement for second degree burglary in 2016, which, according to the State, he had not served (Clark County cause number 15-1-02306-3). According to the State, Alway was already serving a sentence for possession of a stolen vehicle and unlawful possession of a firearm at the time of his conviction (Clark County cause number 17-1-00899-1). The trial court stated at sentencing the current sentence “will run consecutive to 15 and 17 cause numbers.” 5 VRP (May 7, 2021) at 2288.
6 No. 55793-2-II
ANALYSIS
I. PROSECUTORIAL MISCONDUCT
Alway argues the State committed prosecutorial misconduct when it elicited testimony
from Fields regarding Alway’s nickname during trial and again used the nickname during closing
statement. We disagree.
A. LEGAL PRINCIPLES
To prevail on a claim of prosecutorial misconduct, a defendant must first demonstrate that
the prosecutor’s statements were improper and, second, that they were prejudicial. State v.
Magers, 164 Wn.2d 174, 191, 189 P.3d 126 (2008). We examine improper conduct in the full trial
context, “including the evidence presented, ‘the context of the total argument, the issues in the
case, the evidence addressed in the argument, and the instructions given to the jury.’ ” State v.
Monday, 171 Wn.2d 667, 675, 257 P.3d 551 (2011) (internal quotation marks omitted)
(quoting State v. McKenzie, 157 Wn.2d 44, 52, 134 P.3d 221 (2006)).
When a defendant fails to object to a prosecutor’s statements at the trial court level, a
waiver is presumed unless the defendant can show that the statements were so flagrant and ill-
intentioned that no instruction could have cured them. State v. Warren, 165 Wn.2d 17, 30, 195
P.3d 940 (2008), cert. denied, 556 U.S. 1192 (2009). “When a nonobjecting defendant fails to
show that the improper remarks were incurable, the claim ‘necessarily fails, and our analysis need
go no further.’ ” State v. Gouley, 19 Wn. App. 2d 185, 201, 494 P.3d 458 (2021) (quoting State v.
Emery, 174 Wn.2d 741, 764, 278 P.3d 653 (2012)), review denied, 198 Wn.2d 1041 (2022).
Prejudice occurs when “ ‘within reasonable probabilities, the outcome of the trial would have been
materially affected had the error not occurred.’ ” State v. Weber, 159 Wn.2d 252, 270, 149 P.3d
7 No. 55793-2-II
646 (2006) (internal quotation marks omitted) (quoting State v. Bourgeois, 133 Wn.2d 389, 403,
945 P.2d 1120 (1997)), cert. denied, 551 U.S. 1137 (2007); see also State v. Fisher, 165 Wn.2d
727, 747, 202 P.3d 937 (2009) (prejudice requires there to be “a substantial likelihood the improper
conduct affected the jury”). Our analysis focuses more on whether the prejudice could have been
cured and less on whether the prosecutor’s misconduct was flagrant and ill-intentioned. Gouley,
19 Wn. App. 2d at 201.
A prosecutor “has wide latitude in closing argument to draw reasonable inferences from
the evidence . . . .” State v. Lewis, 156 Wn. App. 230, 240, 233 P.3d 891 (2010). But a “prosecutor
must ‘seek convictions based only on probative evidence and sound reason.’ ” In re Pers. Restraint
of Glasmann, 175 Wn.2d 696, 704, 286 P.3d 673 (2012) (quoting State v. Casteneda-Perez,
61 Wn. App. 354, 363, 810 P.2d 74 (1991)). Prosecutors must refrain from using arguments meant
to appeal to the jury’s passion and prejudice to render a verdict, rather than the evidence presented.
State v. Belgarde, 110 Wn.2d 504, 507, 755 P.2d 174 (1988).
ER 403 provides relevant evidence “ ‘may be excluded if its probative value is substantially
outweighed by the danger of unfair prejudice . . . .’ ” Wilson v. Olivetti N. Am., Inc., 85 Wn. App.
804, 813, 934 P.2d 1231 (emphasis added) (quoting ER 403), review denied, 113 Wn.2d 1017
(1997). Prejudicial evidence is evidence that is “likely to stimulate an emotional response instead
of a rational decision.” State v. Scherf, 192 Wn.2d 350, 388, 429 P.3d 776 (2018). Prejudicial
evidence “is not inadmissible merely because it is harmful to the party opposing its admission.”
Id.
Prejudicial nicknames can be admissible if the witness only knew the defendant by that
nickname, or if forbidding the witness from using the nickname would have been unduly
8 No. 55793-2-II
burdensome on the witness. State v. Rodriguez, 163 Wn. App. 215, 230, 259 P.3d 1145 (2011),
review denied, 173 Wn.2d 1009 (2012). In Rodriguez, the defendant argued the probative value
of his street name, Little Evil, was substantially outweighed by its prejudicial nature. Id. at 229.
The court decided it was not error for the trial court to allow certain lay witnesses to refer to the
defendant by Little Evil because those witnesses only knew the defendant by this name, and
therefore, its use was unavoidable. Id. The court relied on federal cases that decided prejudicial
nicknames were admissible if witnesses only knew the defendant by that name or if forbidding the
witness to use the nickname would be unduly burdensome. See United States v. Farmer, 583 F.3d
131, 146 (2d Cir. 2009) (deciding it was not error for most of the defendant’s convictions when
the government elicited testimony about the nickname from witnesses who knew the defendant by
his nickname, Murder); see also United States v. Hattaway, 740 F.2d 1419, 1425 (7th Cir. 1984)
(forbidding a witness from using the nicknames she only knew other gang members by would be
unduly burdensome for her testimony).
B. APPLICATION
Alway argues the State committed prosecutorial misconduct in two instances related to the
nickname Pit Bull: first, when Fields used the nickname during her testimony as elicited by the
State and second, during the State’s closing argument. Alway further argues the State’s use of the
nickname in closing argument was a flagrant and ill-intentioned appeal to the jury’s emotions and
passions that could not have been cured with an instruction.
1. Use of “Pit Bull” During Fields’ Testimony
Alway first argues that when the State elicited the use of the nickname by Fields during
her testimony, the term was overly prejudicial because it is suggestive of animals that are typically
9 No. 55793-2-II
associated by some people with aggression and violence. Alway alleges the use of this nickname
would cause the jury to unfairly attribute those negative characteristics to him.
However, during Fields’ testimony, the nickname was largely used as an identifier. Even
if modestly prejudicial, Fields’ use of the nickname as an identifier was relevant when, as here,
the record suggests that is how Fields was accustomed to referring to Alway. See Rodriguez, 163
Wn. App. at 230. That relevant and permissible use of the nickname outweighs any resulting
prejudice, especially considering the nickname is well-short of the offensiveness and prejudicial
effect of the nicknames of “Little Evil” or “Murder.”3 Fields’ use was not error, and therefore,
there was no prosecutorial misconduct for the State’s role in soliciting the nickname.
Furthermore, even if it could be characterized as misconduct for the State to participate in
this testimony by Fields, Alway cannot show that it was so flagrant and ill-intentioned that a
curative instruction would not have been sufficient. Considering the nickname was admissible as
an identifier by Fields, if defense counsel had objected, the use of the nickname would not likely
have been stricken in its entirety. If anything, the trial court may have limited the jury’s
consideration of the nickname to the identification of Alway. Alway cannot show that such an
instruction would not have been sufficient to prevent any unfair prejudice.
In sum, the use of the nickname by Fields as an identifier was not improper and any
prejudice could have been cured by an instruction. Therefore, the prosecutor did not commit
misconduct when he elicited testimony from Fields.
3 While it is possible that a juror could associate the nickname “Pit Bull” with the image of an aggressive dog, it is equally possible that a juror could have associated the name with the well- known rap-music entertainer who goes by that same name.
10 No. 55793-2-II
2. Use of “Pit Bull” During Closing Argument
Alway’s second related argument is that the State committed prosecutorial misconduct
when it used the nickname during closing argument.
However, as explained above, the nickname was admissible as an identifier for Alway
during the trial testimony of Fields. And a prosecutor is free to refer to admitted evidence in
closing. See, e.g., State v. Brown, 132 Wn.2d 529, 567, 940 P.2d 546 (1997) (prosecutor’s reading
from tape transcript of defendant’s statements was proper because the tapes had been admitted into
evidence at trial), cert. denied, 523 U.S. 1007 (1998). With the admissibility of the nickname as
an identifier during Fields’ testimony, the State was generally permitted to use the nickname unless
the State strayed from its permissible use as an identifier into the forbidden territory of appealing
to the jury’s passion or prejudice. See Farmer, 583 F.3d at 146-47 (in homicide trial, “main
problem” was not admission of prejudicial nickname “Murder,” it was the prosecutors’ “frequently
repeated, gratuitous invocation” of the nickname).
Here, looking at the State’s closing argument, the use of the nickname stops short of
misconduct for two reasons. First, the State used the nickname seven times in the course of its
lengthy closing, each time using the nickname as an identifier for Alway—twice to refer to him
directly and five times to identify him as the person involved in the attack. Importantly, at no point
did the State use any language evoking an image of a vicious animal in conjunction with the
nickname. Indeed, absent from the State’s closing argument is any language paralleling Alway’s
actions to that of an animal.
Second, as discussed above, the nickname itself does not carry a grossly negative
connotation, like “Little Evil” and “Murder,” and its use here was wholly dissimilar to other
11 No. 55793-2-II
improper appeals to passion or prejudice, like racially charged language and rhetoric. See
Belgarde, 110 Wn.2d at 507 (holding language alluding to the defendant’s association with the
American Indian Movement was akin to the Irish Republican Army was flagrant); see also
Monday, 171 Wn.2d at 675 (holding intentional comments appealing to racist stereotypes was
flagrant and ill-intentioned).
But even if the State’s closing was misconduct, just as with the Fields’ testimony, defense
counsel made no objection. Therefore, Alway must show that the State’s actions were so flagrant
and ill-intentioned that resulting prejudice could not be cured by an instruction. Like the
nickname’s use in the Fields’ testimony, Alway cannot make this showing because an instruction
could have cured the misconduct. Accordingly, we hold that Alway has failed to show
prosecutorial misconduct.
II. INEFFECTIVE ASSISTANCE OF COUNSEL
Alway argues defense counsel acted deficiently when he failed to object to the use of
Alway’s nickname during trial and closing argument.4 Specifically, Alway argues he received
ineffective assistance of counsel because his defense counsel failed to properly research the
prejudicial effect of nicknames and apply the rules of evidence accordingly. We disagree.
4 The State argues that because Alway failed to object to the use of his nickname during trial, unless he can show the error was a manifest constitutional error, he is precluded from raising the issue on appeal under RAP 2.5(a). We may review the arguments under an ineffective assistance of counsel claim, regardless of whether the error is of manifest constitutional right. See State v. Gerdts, 136 Wn. App. 720, 726, 150 P.3d 627 (2007).
12 No. 55793-2-II
To show they received ineffective assistance of counsel, a defendant must show that the
attorney’s performance was deficient and that the deficiency prejudiced the appellant. Strickland
v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984) (known as the
“Strickland test”); In re Pers. Restraint of Yates, 177 Wn.2d 1, 35, 296 P.3d 872 (2013). Failure
to establish either prong is fatal to the claim. Strickland, 466 U.S. at 700.
Counsel’s performance is deficient if it falls below an objective standard of reasonableness.
State v. Grier, 171 Wn.2d 17, 33, 246 P.3d 1260 (2011), cert. denied, 574 U.S. 860 (2014).
Defense counsel’s performance is not deficient if it is a legitimate trial tactic. State v. Kyllo,
166 Wn.2d 856, 863, 215 P.3d 177 (2009). “The decision of when or whether to object is a classic
example of trial tactics.” State v. Madison, 53 Wn. App. 754, 763, 770 P.2d 662, review denied,
113 Wn.2d 1002 (1989). We engage in a strong presumption that counsel’s performance was
reasonable. Grier, 171 Wn.2d at 33.
For ineffective assistance of counsel claims centered on the attorney’s failure to object, the
defendant “ ‘must show that the objection would likely have succeeded.’ ” State v. Vazquez, 198
Wn.2d 239, 248, 494 P.3d 424 (2021) (quoting State v. Crow, 8 Wn. App. 2d 480, 508, 438 P.3d
541 (2019)). The failure to object justifies reversal “[o]nly in egregious circumstances, on
testimony central to the State’s case.” Crow, 8 Wn. App. 2d at 508. Defense counsel performs
deficiently if they fail to object to inadmissible evidence. Vazquez, 198 Wn.2d at 248.
Lastly, a defendant must show they were prejudiced by defense counsel’s deficiency.
Grier, 171 Wn.2d at 34. “To satisfy the prejudice prong of the Strickland test, the defendant must
establish that ‘there is a reasonable probability that, but for counsel’s deficient performance, the
13 No. 55793-2-II
outcome of the proceedings would have been different.’ ” Grier, 171 Wn.2d at 34 (quoting Kyllo,
166 Wn.2d at 862). If defense counsel failed to object to inadmissible evidence, “reversal is
required if the defendant can show the result would likely have been different without the
inadmissible evidence.” Vazquez, 198 Wn.2d at 248-49.
Alway argues he received ineffective assistance of counsel because his defense counsel
failed to perform basic research that would have led to an objection for the use of the nickname
Pit Bull during trial. Alway argues his nickname was inadmissible under ER 401, 403, and 404
and there was no tactical reason to not object to the use of the nickname. Alway also argues he
was prejudiced because the State distracted and impassioned the jury by misusing the nickname.
As for his counsel’s failure to object during Fields’ testimony, in order to succeed in his
ineffective assistance of counsel claim, Alway must show an objection to the use of the nickname
during this testimony would have been successful. As explained above, Alway’s nickname was
admissible as an identifier during Fields’ testimony. Because of its admissibility, Alway cannot
show an objection would have been successful, and thus, was not deficient performance.
Therefore, Alway fails to show he received ineffective assistance of counsel for failure to object
to the nickname during this testimony.
As for his counsel’s failure to object during the State’s closing, the State has wide latitude
to refer to admitted evidence and, due to its limited use, the State’s use of the nickname fell short
14 No. 55793-2-II
of impermissibly appealing to passion or prejudice. The State referred to Alway as “the defendant”
over 50 times in its lengthy closing and used the nickname only seven times.
But even if defense counsel could have succeeded in convincing the trial court to sustain
an objection to the nickname, Alway cannot show he was prejudiced by his counsel’s deficient
performance. There was overwhelming evidence for the jury to convict Alway. For example,
West testified he saw Alway shoot Brandon, the medical examiner testified Brandon died from a
gunshot wound, the forensic examiner testified Alway’s gun was used to shoot Brandon, and the
DNA expert testified Alway’s DNA was found on rope tied around Brandon’s hands and on the
gun that killed Brandon. Given this evidence against Alway, it is unlikely that the use of the
nickname had any material effect on the outcome of the trial. See, e.g., Farmer, 583 F.3d at 147
(“Given the strength of the government’s evidence, there can be no doubt that [the defendant]
would have been convicted on [multiple counts] even if he had no nickname [of Murder].”).
We conclude that Alway did not receive ineffective assistance of counsel. Alway cannot
show deficient performance because an objection from his counsel would not have been successful
to exclude the use of the nickname, and he cannot show he was prejudiced.
III. SEPARATE AND DISTINCT CRIMINAL CONDUCT
Alway argues the sentencing court erred in sentencing him to consecutive sentences for
first degree murder and first degree kidnapping of Brandon (Counts 1 and 4) because the offenses
were not separate and distinct criminal conduct. We disagree.
A person “convicted of two or more serious violent offenses arising from separate and
distinct criminal conduct” must serve those sentences consecutively. RCW 9.94A.589(1)(b).
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“Crimes that do not constitute the same criminal conduct are necessarily separate and distinct
offenses.” State v. Kloepper, 179 Wn. App. 343, 356, 317 P.3d 1088, review denied, 180 Wn.2d
1017 (2014). Two or more crimes have the same criminal conduct if they “require the same
criminal intent, are committed at the same time and place, and involve the same victim.” RCW
9.94A.589(1)(a); State v. Valencia, 2 Wn. App. 2d 121, 125, 416 P.3d 1275 (2018). If one of the
elements is not met, the crimes are not the same criminal conduct. Id. The statute is narrowly
construed to “disallow most claims that multiple offenses constitute the same criminal act.” State
v. Porter, 133 Wn.2d 177, 181, 942 P.2d 974 (1997). The defendant bears the burden of
establishing the offenses are the same criminal conduct. State v. Graciano, 176 Wn.2d 531, 541,
295 P.3d 219 (2013).
Offenses have the same criminal intent if, when objectively viewed, the intent does not
change between the two offenses. Kloepper, 179 Wn. App. at 357. Criminal intent is the
defendant’s “objective criminal purpose in committing the crime.” State v. Adame, 56 Wn. App.
803, 811, 785 P.2d 1144, review denied, 114 Wn.2d 1030 (1990). We examine whether the
objective criminal intent changed from one crime to the next. State v. Tili, 139 Wn.2d 107, 123,
985 P.2d 365 (1999). “Crimes may involve the same criminal intent if they were part of a
‘continuing, uninterrupted sequence of conduct.’ ” State v. Munoz-Rivera, 190 Wn. App. 870,
889, 361 P.3d 182 (2015) (quoting Porter, 133 Wn.2d at 186). “But when an offender has time to
‘pause, reflect, and either cease his criminal activity or proceed to commit a further criminal act,’
and makes the decision to proceed, he or she has formed a new intent to commit the second act.”
Id. (quoting State v. Grantham, 84 Wn. App. 854, 859, 932 P.2d 657 (1997)).
16 No. 55793-2-II
Offenses that occur as part of a continuing, uninterrupted sequence of conduct occur at the
same time for sentencing purposes. Porter, 133 Wn.2d at 186. The offenses are not required to
have occurred simultaneously to be considered the same criminal conduct. Id. at 183, 185-86. But
offenses do not occur at the same time if the defendant cannot show the offenses were continuous,
or occurred in a short time frame. Graciano, 176 Wn.2d at 541.
We review a trial court’s ruling on whether two or more crimes are the same criminal
conduct for an abuse of discretion or misapplication of the law. Id. at 536. A trial court abuses its
discretion “when the record supports only one conclusion” and the trial court arrives at a “contrary
result.” Id. at 537-38. When a record supports either determination, there is no abuse of discretion.
Id. at 538.
Alway argues first degree murder and first degree kidnapping were not separate and distinct
criminal conduct because the crimes involved the same criminal intent, which was to restrain and
kill Brandon. Because he intentionally abducted Brandon with the intent to commit murder, Alway
asserts consecutive sentences were not required under RCW 9.94A.589(1)(b). We disagree.
The kidnapping began almost immediately when Brandon first arrived at the house when
Alway held Brandon at gunpoint. This kidnapping was consistent with the collective discussions
of the group and was designed to get Penticoff’s car back. But there was no evidence the group
discussed or intended to kill Brandon or that Alway had any intentions separate from that of the
group. In fact, West testified the group had no real plan on how to get the car back, other than
possibly physically confronting Brandon.
17 No. 55793-2-II
The evidence shows Alway only began brutally beating Brandon when Brandon began to
attempt to get his gun back, and only killed Brandon after Barry told them they were being too
loud. West testified that Alway yelled, “I [f**ked] up” right after he shot Brandon, and West told
Wideman the shooting was an accident. 4 VRP (Apr. 1, 2021) at 1660. Both West and Wideman
testified Alway was panicked and frantic after shooting Brandon. There is simply no evidence
suggesting that the shooting was part of a single, continuing, uninterrupted sequence of conduct.
Rather than proving an uninterrupted sequence of conduct, the evidence shows the criminal
intent behind the conduct abruptly shifted from abduction to killing as the events progressed.
While the kidnapping and the murder did occur within a short period of time from one another,
Alway certainly had time to pause, reflect, and proceed to form a new intent after the kidnapping
began, especially when violence of the brutal assault caused Barry to complain about the noise.
The evidence reasonably supports the trial court’s conclusion that the murder and kidnapping
involved separate criminal intents.
Given this evidence, we hold that the trial court did not abuse its discretion or misapply the
law when it determined that Alway’s first degree murder and first degree kidnapping convictions
involving Brandon were separate and distinct conduct. Therefore, the trial court did not err in
sentencing Alway to consecutive sentences for the offenses under RCW 9.94A.589(1)(b).
IV. JUDGMENT AND SENTENCE
Alway argues the trial court erred in imposing the $250 jury demand fee and the $100 DNA
collection fee. The State concedes the trial court under the particular circumstances of this case
18 No. 55793-2-II
committed scrivener’s errors in imposing both fees.5 We accept the State’s concession and remand
to the trial court to strike the $250 jury demand fee and the $100 DNA collection fee.
V. STATEMENT OF ADDITIONAL GROUNDS (SAG)6
In his SAG, Alway raises five grounds for relief. We reject each ground.
A. DOUBLE JEOPARDY
Alway claims the trial court violated his double jeopardy protections when it sentenced
him to serve his sentence consecutively with two previous sentences from prior convictions (the
sentences for which he claims to have already served). We disagree.
Double jeopardy protects a defendant from multiple punishments for the same offense.
Harris v. Charles, 171 Wn.2d 455, 467, 256 P.3d 328 (2011). “ ‘The double jeopardy clause does
not prohibit the imposition of separate punishments for different offenses.’ ” State v. Arndt, 194
Wn.2d 784, 817, 453 P.3d 696 (2019) (quoting State v. Noltie, 116 Wn.2d 831, 848, 809 P.2d 190
(1991)), cert. denied, 142 S. Ct. 726 (2021).
A trial court has discretion to impose consecutive sentences for felonies committed
subsequent to other felonies under RCW 9.94A.589(3), as long as it expressly so orders. State v.
Champion, 134 Wn. App. 483, 488, 140 P.3d 633 (2006), review denied, 160 Wn.2d 1006, cert.
denied, 552 U.S. 1000 (2007). The statute states,
5 A scrivener’s error is a clerical mistake that, when amended, would correctly convey the trial court’s intention as expressed in the record at trial. State v. Snapp, 119 Wn. App. 614, 627, 82 P.3d 252, review denied, 152 Wn.2d 1028 (2004). The remedy for a scrivener’s error in a judgment and sentence is to remand to the trial court for correction. State v. Makekau, 194 Wn. App. 407, 421, 378 P.3d 577 (2016). 6 RAP 10.10.
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[W]henever a person is sentenced for a felony that was committed while the person was not under sentence for conviction of a felony, the sentence shall run concurrently with any felony sentence which has been imposed by any court in this or another state or by a federal court subsequent to the commission of the crime being sentenced unless the court pronouncing the current sentence expressly orders that the confinement terms be served consecutively to each other.
RCW 9.94A.589(3).
In other words, when (1) a defendant commits a felony (and is not then under a felony
sentence), (2) is subsequently sentenced for a separate felony, and then (3) the defendant is
sentenced on the original felony, the sentences shall run concurrently unless the sentencing court
expressly orders the terms to be served consecutively.
Here, the trial court sentenced Alway to 850 months confinement for Brandon’s murder,
to run consecutively with two previous convictions for second degree robbery7 and possession of
a stolen vehicle and unlawful possession of a firearm.8 Because the record does not include the
sentencing dates for all of these convictions, we cannot determine the application of RCW
9.94A.589(3).9 The record is also insufficient for us to determine whether, and to what extent,
Alway had already served sentences for these previous convictions as alleged in his SAG.
However, what is clear from the record is that the trial court imposed separate punishments
for separate offenses—double jeopardy is not implicated by Alway’s sentence. See Arndt, 194
Wn.2d at 817. Alway’s claim fails.
7 Clark County cause number 15-1-02306-3. 8 Clark County cause number 17-1-00899-1. 9 The declaration of criminal history does not state the sentencing date for Alway’s possession of a stolen vehicle conviction.
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B. OFFICER TESTIMONY
Alway further claims his right to a fair trial was violated when six police officers testified
about his arrest for a stolen vehicle. He claims that (1) this testimony was inadmissible because it
was unrelated to his current case, (2) the State committed prosecutorial misconduct for eliciting
this testimony, and (3) he received ineffective assistance of counsel because his defense counsel
failed to object to the officers’ testimony. We disagree.
1. Inadmissible Evidence
“Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a
person in order to show action in conformity therewith. It may, however, be admissible for other
purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or
absence of mistake or accident.” ER 404(b). Evidence that is properly admitted does not deprive
a defendant of their right to a fair trial. State v. Yarbrough, 151 Wn. App. 66, 87, 210 P.3d 1029
(2009).
Six police officers testified at trial, without objection, about their arrest of Alway and Berry
for a stolen vehicle. The officers testified that they became involved in the Brandon murder
investigation because the sheriff’s office contacted them regarding Alway’s arrest and the handgun
in his possession.
This testimony was admissible. It illustrated the sequence of events that led to the arrest
of Alway and the discovery of the gun that was used to kill Brandon. The testimony also
established the chain of custody of the evidence between Alway’s arrest, turning the gun over to
the sheriff’s office, and the subsequent testing of the gun. Because these were legitimate purposes
21 No. 55793-2-II
for the admittance of this evidence and it was not used to show Alway’s character under ER 404(b),
its admissibility was not error.
2. Prosecutorial Misconduct and Ineffective Assistance of Counsel
To prevail on a claim of prosecutorial misconduct, a defendant must first demonstrate that
the prosecutor’s conduct was improper and, second, that it was prejudicial. Magers, 164 Wn.2d
at 191. As discussed above, the officers’ testimony was admissible, therefore the State did not
commit prosecutorial misconduct. For the same reasons, defense counsel’s failure to object to the
officer’s testimony was not ineffective assistance of counsel.
C. CUMULATIVE ERROR
Finally, Alway claims he is entitled to a new trial because his trial contained cumulative
errors. Under the cumulative error doctrine, a defendant may be entitled to a new trial when
cumulative errors produce a trial that is fundamentally unfair. Emery, 174 Wn.2d at 766.
Alway has not shown error, much less cumulative errors, and therefore, is not entitled to a
new trial.
CONCLUSION
We affirm Alway’s convictions, but remand to the sentencing court to correct the two
scrivener’s errors.
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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 in accordance with RCW 2.06.040,
it is so ordered.
PRICE, J. We concur:
GLASGOW, C.J.
LEE, J.