[Copyrighted Material Omitted]
Appeal from Pierce County Superior Court. Docket No: 10-1-01903-2. Date filed: 05/13/2011. Judge signing: Honorable Rosanne Nowak Buckner.
Mitch Harrison (of Harrison Law ), for appellant.
Mark E. Lindquist, Prosecuting Attorney, and Melody M. Crick, Deputy, for respondent.
AUTHOR: J. Robin Hunt, P.J. We concur: Joel Penoyar, J., Thomas R. Bjorgen, J.
[176 Wn.App. 940] ¶ 1 Amanda Christine Knight appeals two convictions for second degree assault against
two victims, JS  and Charlene Sanders, (Counts III and V) during a home invasion robbery ; she also appeals her sentences, arguing that they were based on an incorrect offender score. Knight argues that there was insufficient evidence to support these convictions and that they constitute double [176 Wn.App. 941] jeopardy because (1) the jury instructions were ambiguous, and (2) the assaults should have merged with her first degree robbery convictions committed against the same two victims (Counts IV  and II). She also asks us to remand for resentencing because the trial court erred in calculating her offender score when it counted several of the convictions as separate points instead of counting them as one point because they constituted the same criminal conduct under RCW 9.94A.589(1)(a). In her Statement of Additional Grounds (SAG), Knight asserts that the trial court erred in failing to give a nonunanimity jury instruction for the special verdicts that enhanced her sentence. We affirm.
¶ 2 Amanda Christine Knight, Joshua Reese, and Kyoshi Higashi were acquaintances, who, with another acquaintance, Clabon Berniard, participated in a home invasion robbery in Lake Stevens in April 2010. Soon thereafter, on April 28, Higashi told Knight that he wanted to commit another robbery; Knight drove her car to Renton to pick up Higashi and then picked up Berniard. Higashi had found a Craigslist wedding ring advertisement posted by James Sanders. Using a nontraceable throw-away cell phone, Knight contacted Sanders that morning and asked whether she and her boyfriend could see the ring to buy for Mother's Day. Wanting to arrive after dark, Knight claimed that they were coming from Chehalis and could not be there until that evening.
¶ 3 Knight drove Higashi, Berniard, and Reese to the Sanders' house at 9:00 pm; she drove down the long driveway [176 Wn.App. 942] and backed in to park to facilitate a quick getaway. Higashi was in possession of Knight's firearm; Reese and Berniard were also armed. They had zip ties and masks with them. Before entering, Knight covered up her tattoos and put on a pair of gloves, and Higashi handed her several zip ties. They met James Sanders outside. The three walked together into the Sanders' kitchen.
¶ 4 Inside, James  handed an old wedding ring to Knight, who handed it to Higashi. When Knight and Higashi asked several questions about the ring, James called upstairs to his wife, Charlene, asking her to come down to help answer the questions. Their two children, JS and CK, remained upstairs. Knight told James she was interested in buying the ring.
¶ 5 Higashi revealed a large amount of cash and asked, " How is this?" He also pulled out a handgun and threatened, " How about this?" 5 Verbatim Report of Proceedings (VRP) at 580. Charlene and James told Higashi and Knight to take whatever they wanted and to leave. Knight zip tied Charlene's hands behind her back; Higashi zip tied James's hands behind his back. Knight removed Charlene's wedding ring from her finger. Knight or Higashi removed James's wedding ring from his finger. Higashi and Knight ordered James and Charlene to lie down on their stomachs on the floor.
¶ 6 Through Knight's Bluetooth headset connection to Reese and Berniard waiting in her car, they heard that the Sanders adults had been secured; and Knight signaled them to enter. Knight knew that Reese and Berniard
possessed loaded guns and that using these guns was part of the group's plan to carry out the Sanders' home invasion robbery. Reese and Berniard went upstairs, brought down the two Sanders boys with their hands behind their heads at gunpoint, and forced them to lie down on their stomachs [176 Wn.App. 943] on the floor near the kitchen entryway; Knight walked between them. Charlene and JS saw Knight and Higashi gather up items from the house, including from the downstairs laundry room. Knight also ransacked the main bedroom upstairs, looking for other expensive items to collect.
¶ 7 From upstairs, Knight heard the commotion and screams downstairs as her companions assaulted the Sanders family. Berniard held a gun to Charlene's head, pulled back the hammer, began counting down, and asked her, " Where is your safe?" 5 VRP at 586. Charlene responded that they did not own a safe. Berniard kicked Charlene in the head, called her a " b*tch," and threatened to kill her and her children. 5 VRP at 586. According to Charlene, " [Berniard] kicked [her] so hard that [her] head went up and then [she] hit down on the ground" ; it left a large " goose egg" on her left temple. 5 VRP at 587. Charlene believed she was going to die. Eventually, Charlene told the intruders that they kept a safe in their garage.
¶ 8 While Berniard was forcing James to the garage, James broke free of his zip ties and began beating Berniard. Berniard shot James in the ear, knocking him unconscious. JS jumped on Berniard, who threw JS off and began hitting him with the butt of his firearm. Reese then dragged James's body back through the kitchen and into the adjacent living room, where it was out of sight. Either Reese or Berniard shot James multiple times, causing fatal internal bleeding.
¶ 9 Following the gunshots, the four intruders fled immediately. Charlene went to the living room and found James lying on the floor; his body appeared white, and one of his ears had been shot off. Charlene called 911. The police declared James dead at the scene; autopsy investigators later recovered three bullets from his body. The police also took JS to the hospital, where he was treated for bruising and bleeding around his left ear; the beating left scars that were still visible a year later. In addition to the rings, among the items missing from the Sanders' home were a PlayStation, an iPod, and a cellular phone.
[176 Wn.App. 944] ¶ 10 Knight dropped Higashi at a friend's house; Knight and Reese went to a hotel. Later that evening, Higashi called Knight; when they met up, Higashi told Knight and Reese that James had been killed and that they needed to discard the clothing they had been wearing and to " get rid of" any remaining zip ties. 7 VRP at 922. Knight handed over her clothing.
¶ 11 The following morning, Knight, Reese, and Higashi began driving to California and sold the Sanders' PlayStation and Knight's firearm along the way. California police eventually pulled them over and arrested them on unrelated charges. Knight posted bail, pawned James's wedding band, and purchased a bus ticket to return to Washington. On hearing the news that she was a murder suspect, she turned herself in to the Sumner Police Department.
¶ 12 The State charged Knight with (1) first degree felony murder of James (Count I); (2) two counts of first degree robbery, ,  against James (Count II) and Charlene (Count IV); (3) two counts of second degree assault,  against Charlene (Count V) and JS
(Count III); and (4) first degree [176 Wn.App. 945] burglary (Count VI). Each charge alleged accomplice liability and carried a firearm enhancement and other sentencing aggravators for manifest deliberate cruelty, a high degree of sophistication or planning, and an offender score that would result in some of the current offenses going unpunished.
¶ 13 In its opening statement, the State explained that it would prove the following: (1) Knight and three accomplices, Higashi, Reese, and Berniard, planned to go to the Sanders' house, ostensibly to purchase a ring that James had advertised on Craigslist, " tie everybody up and steal the expensive stuff out of the house ... ransack the place and take what they could" ;  (2) Knight had later told police that she " wore gloves so she wouldn't leave fingerprints [and] wore long sleeves because she ha[d] rather distinctive tattoos on her arms" ;  (3) once inside the house, Knight zip tied Charlene's hands behind her back, ordered her face down on the kitchen floor, and took Charlene's wedding ring off her hand; (4) Knight then used a Bluetooth to signal the others to enter; (5) later the intruders got the idea that there was a safe in the house, demanded the safe's location, kicked Charlene in the face, and demanded the combination; (6) they also beat Charlene's stepson JS when he tried to intervene to protect his father, James, who was also being beaten before being shot three times; and (6) Knight would claim at trial that she and Reese had been upstairs stealing valuables while JS, Charlene, and James were being beaten downstairs.
¶ 14 The jury instructions provided: (1) To elevate the robbery to first degree, the jury was required to find that, during the commission of the crime, " [Knight] or an accomplice [was] armed with a deadly weapon or inflict[ed] bodily injury." 2 Clerk's Papers (CP) at 339 (Instruction 12); see also CP at 354 (Instruction 26).
[176 Wn.App. 946] ¶ 15 (2) " An assault is an intentional touching or striking of another person. ... An assault is also an act done with the intent to create in another apprehension and fear of ...