State v. Dunn

• Decision Date: 21 April 2014
• Docket Number: No. 69754-4-I,69754-4-I
• Court: Washington Court of Appeals
• Parties: STATE OF WASHINGTON, Respondent, v. RAVIS L. DUNN, Appellant.

STATE OF WASHINGTON, Respondent, v. RAVIS L. DUNN, Appellant.

No. 69754-4-I

COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION ONE

FILED: April 21, 2014

UNPUBLISHED OPINION

DWYER, J. — Ravis Dunn and Rachelle Lawson lured Shannan Cassidy out of a house and down to a vehicle with the promise of selling him a sports jersey. Dunn then pulled out a pistol, brandished it at Cassidy, and said, "you know what this is, nigga." Thinking that he was being robbed, Cassidy gave Dunn his wallet. When Dunn began to check Cassidy's pockets, Cassidy pushed the gun away and the two "tussled." After disentangling himself, Dunn stepped back and shot Cassidy in the hip.

The State charged Dunn with robbery in the first degree and assault in the second degree. With respect to the assault charge, the jury was instructed that it could only convict on that charge if it found that an actual battery had been committed. The jury convicted Dunn on both charges. On appeal, Dunn contends that his assault conviction elevated the robbery to robbery in the first degree, which should cause his assault conviction to merge into his robberyconviction. He also contends that his right to a trial by a fair and impartial jury was violated. In affirming Dunn's convictions, we conclude that each offense required proof of a fact not necessary to convict Dunn of the other offense, and that the assault conviction, as charged and consistent with the jury's instructions, did not elevate the robbery to robbery in the first degree. Further, we conclude that Dunn's right to a fair and impartial jury was not violated. Accordingly, we affirm.

I

On July 16, 2011, Dunn encountered Rachelle Lawson, a friend he had known for a number of years, at a bar. Lawson had argued with her boyfriend earlier. Because she did not want to go home to see him, she left the bar with Dunn in her boyfriend's Ford Bronco. The two drove to a home in West Seattle. At the home were some of Dunn's friends, including Rebekah Gonzales,¹ Nicole Parke, and Kim Wilbur. Also present was Parke's friend, Shannan² Cassidy. After socializing with Dunn's friends, Lawson and Dunn left the house around 4:00 a.m. Before Lawson and Dunn left the house, however, Cassidy had discussed sports jerseys while Dunn was present.

The following afternoon, Lawson and Dunn returned to the same home in West Seattle in the Ford Bronco. At some point that afternoon, Cassidy—who was still present at the West Seattle home when Lawson and Dunn returned—left the house to look at sports jerseys stored in the Bronco. Although there wasconflicting testimony as to who asked Cassidy to look at the jerseys and as to who walked out to the Bronco with him, all accounts confirm that Cassidy left the house to look at the jerseys. Lawson testified that the jerseys had been gifts she had given to her boyfriend, which she had taken back following their argument.

Once Cassidy walked outside and approached the Bronco, Dunn produced a pistol, which he pointed at Cassidy's head, stating, "You know what this is, nigga." Cassidy thought that he was being robbed. In response, Cassidy pulled his wallet out of his pocket and handed it to Dunn. After Cassidy handed his wallet to Dunn, Dunn checked Cassidy's pockets for other valuables. Dunn felt Cassidy's checkbook in one of Cassidy's back pockets and tried to remove it, at which point the two started "tussling over the gun." Once Dunn managed to disentangle himself from Cassidy, Dunn stepped back and shot Cassidy in the hip. After Dunn shot Cassidy, Dunn, Lawson, and another man named Quayvis,³ got in the Bronco and drove away.

The State charged Dunn with robbery in the first degree, assault in the second degree, and unlawful possession of a firearm in the first degree. The robbery and assault charges included the allegation that Dunn committed the offenses while armed with a firearm. Lawson was initially charged with rendering criminal assistance in the first degree. Later, she pleaded guilty to a reduced charge and agreed to testify against Dunn. The information was then amended to eliminate mention of Lawson's charge from Dunn's charging document.

The case was tried to a jury. On August 8, 2012 at 1:30 p.m., after deliberating for more than eight hours over the course of two days, the jury sent a note to the court, stating, "we have reviewed the evidence no one feels the need to review further we are unable to reach a unanimouse [sic] verdict on any count." The trial court then brought the jury into the courtroom and asked the presiding juror, "Is there a reasonable probability of the jury reaching a unanimous verdict within a reasonable time[?]" The presiding juror responded, "No." The court then asked, "Is there any member of the jury that disagrees with that statement. If so, please raise your hand." One of the jurors raised her hand. The court then released the jurors for the day, instructing them to return the next day to continue deliberations.

The following morning, one of the jurors was ill. The trial court excused the remaining jurors until the afternoon. In the afternoon, the entire jury, including the ill juror, resumed deliberations and ultimately returned verdicts of guilty as charged on all counts, concluding additionally that Dunn was armed with a firearm during the commission of the robbery and the assault.

At sentencing, Dunn asserted that the convictions for robbery in the first degree and assault in the second degree should merge, and that the trial court should therefore vacate the conviction for assault in the second degree. The trial court rejected Dunn's assertion and imposed a sentence of 225 months in prison.

Dunn appeals from the judgment and sentence.

II

Dunn claims that he should not have been convicted of both robbery in thefirst degree and assault in the second degree. This requires us to address several issues. The first issue is whether the legislature has, either expressly or implicitly, evinced an intent to punish separately the offenses of assault in the second degree and robbery in the first degree. The next question, which requires us to apply the Blockburger⁴ test, is whether each offense contains an element that the other does not. The final issue is whether, in order for the jury to convict the defendant of robbery in the first degree, it was necessary for the jury to convict the defendant of assault in the second degree.

The double jeopardy clauses of our state and federal constitutions protect against multiple punishments for the same offense.⁵ WASH. CONST, art. I, § 9; U.S. CONST, amend. 5; State v. Calle, 125 Wn.2d 769, 772, 888 P.2d 155 (1995). Although the State may bring multiple charges arising from the same criminal conduct, "'[w]here a defendant's act supports charges under two criminal statutes, a court weighing a double jeopardy challenge must determine whether, in light of legislative intent, the charged crimes constitute the same offense.'" State v. Freeman, 153 Wn.2d 765, 771, 108 P.3d 753 (2005) (quoting In re Pers. Restraint of Orange, 152 Wn.2d 795, 815, 100 P.3d 291 (2004)). "If the legislature authorized cumulative punishments for both crimes, then double jeopardy is not offended." Freeman, 153 Wn.2d at 771.

Recently, in State v. Esparza, 135 Wn. App. 54, 143 P.3d 612 (2006), wereiterated our approach to resolving double jeopardy issues, as elucidated by our Supreme Court in Freeman.

"Because the question largely turns on what the legislature intended, we first consider any express or implicit legislative intent. Sometimes the legislative intent is clear, as when it explicitly provides that burglary shall be punished separately from any related crime. RCW 9A.52.050. Sometimes, there is sufficient evidence of legislative intent that we are confident concluding that the legislature intended to punish two offenses arising out of the eparately without more analysis. E.g., [State v.] Calle, 125 Wn.2d [769,] 777-78[, 888 P.2d 155 (1995)] (rape and incest are separate offenses).

Second, if the legislative intent is not clear, we may turn to the Blockburger test. SeeCalle, 125 Wn.2d at 777-78, 888 P.2d 155; Blockburger v. United States, 284 U.S. 299, 304, 52 S. Ct. 180, 76 L. Ed. 306 (1932). If each crime contains an element that the other does not, we presume that the crimes are not the same offense for double jeopardy purposes. Calle, 125 Wn.2d at 777; Blockburger, 284 U.S. at 304 (establishing "same evidence" or "same elements" test); State v. Reiff, 14 Wash. 664, 667, 45 P. 318 (1896) (double jeopardy violated when '"the evidence required to support a conviction [of one crime] would have been sufficient to warrant a conviction upon the other'") (quoting Morev v. Commonwealth, 108 Mass. 433, 434 (1871)).

When applying the Blockburger test, we do not consider the elements of the crime on an abstract level. "'[W]here the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not.'" [In re Personal Restraint of] Orange, 152 Wn.2d [795,] 817[, 100 P.3d 291 (2004)] (quoting Blockburger, 284 U.S. at 304 (citing Gavieres v. United States, 220 U.S. 338, 342, 31 S. Ct. 421, 55 L Ed. 489 (1911))). However, the Blockburger presumption may be rebutted by other evidence of legislative intent. Calle, 125 Wn.2d at 778.

Third, if applicable, the merger doctrine is another aid in determining legislative intent, even when two crimes have formally different elements. Under the merger doctrine, when the degree of one offense is raised by conduct separately criminalized by the legislature, we presume the legislature intended to punish both offenses through a greater sentence for the greater crime. [State v. Vladovic, 99 Wn.2d [413,] 419[, 662 P.2d 853 (1983)].

Finally, even if on an abstract level two convictions appear tobe for the same offense or for charges that would merge,

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