202950MAJ ~ DO NOT CITE. SEE RAP 10.4(h).

Court of Appeals Division III State of Washington Opinion Information Sheet Docket Number: 20295-0-III Title of Case: State of Washington v. Perry D. Lowe File Date: 11/12/2002 SOURCE OF APPEAL ---------------Appeal from Superior Court of Spokane County Docket No: 001028351 Judgment or order under review Date filed: 06/20/2001 Judge signing: Hon. Linda G. Tompkins JUDGES -----Authored by John A. Schultheis Concurring: Stephen M. Brown Kenneth H Kato COUNSEL OF RECORD ----------------Counsel for Appellant(s) David N. Gasch PO Box 30339 Spokane, WA 99223-3005 Counsel for Respondent(s) Kevin M. Korsmo Spokane County Prosecutor's Office W. 1100 Mallon Spokane, WA 99260 Andrew J. Metts Iii Deputy Prosecuting Attorney 1100 W Mallon Ave Spokane, WA 99260-0270 IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON STATE OF WASHINGTON, ) Respondent, ) ) Division Three ) No. 20295-0-III

v. PERRY D. LOWE, Appellant.

) Panel Two ) ) ) UNPUBLISHED OPINION )

SCHULTHEIS, J. -- Perry Lowe was convicted of first degree robbery, first degree kidnapping, first degree animal cruelty, and first degree burglary. On appeal, he contends the trial court erred in refusing to dismiss the animal cruelty charge and in refusing to merge the robbery and kidnapping charges for sentencing purposes. Pro se, Mr. Lowe contends the trial court improperly included accomplice liability language in the jury instructions and miscalculated his criminal history. He also claims the trial court failed to sequester the witnesses. Finding no error, we affirm. Facts One evening in November 2000, high school student Shilene Jaramillo was home alone in the residence she shared with her mother, her sister, and her older brother Zane. At one point, Ms. Jaramillo looked up and saw a strange man standing at the top of the stairs, facing her pit bull. The man told Ms. Jaramillo to get her dog, but shot and killed the dog before she could react. He then tied Ms. Jaramillo's hands behind her back and pushed her down the stairs toward the basement. Another man, wearing a ski mask, was waiting at the bottom of the stairs. The first man made Ms. Jaramillo lie on the basement floor, pointed a handgun at her, and demanded to know, 'where's the shit at?' Report of Proceedings at 39. She told him she did not know what he was talking about. He blindfolded and gagged her and left the basement, telling the masked man to help him search each room. After 30 minutes to an hour, the men returned, took Ms. Jaramillo upstairs, and placed her on her bed. At this time they untied her hands but kept her blindfolded. She heard more than two male voices. One of the men was told by the first man-who appeared to be their leader--to shoot Ms. Jaramillo if she started screaming. The leader told her he was looking for $17,000 worth of cocaine that her brother Zane had stolen from him. Eventually the men took her to the living room, removed her blindfold and gag, and told her to sit on the couch as though she was watching television. The leader drank a few beers and stood by the front door with the gun. Ms. Jaramillo saw that several of her family's belongings were stacked in piles. The other men appeared to have left, and she sat with the leader for about another hour. As Ms. Jaramillo answered a telephone call from her mother, the leader left the house. Ms. Jaramillo then ran to a neighbor's house and called the police. The entire ordeal lasted about four hours. When police arrived they found the pit bull lying in a pool of blood. Several items were missing from the house, including computer components, speakers, African statuettes, a watch, jewelry, snow board equipment, and a rifle. One of the officers who responded to the call arrived as a man was walking away from the residence. The man saw the police car and began walking away rapidly. His suspicions aroused, the officer stopped the man, explained that he was investigating an armed robbery, and asked for the man's identification. The man, Mr. Lowe, stated he had no identification, but gave his name, birth date and social security number. Because Mr. Lowe was acting very nervous and kept putting his hands in his baggy pants pockets, the officer patted him down, finding no weapons. Satisfied that he had no further reason to restrain Mr. Lowe, the officer released him and

went to the scene of the crime. The only man Ms. Jaramillo had seen clearly was the leader. Suspecting that Mr. Lowe may have been involved in the incident, officers put his photo in a photo montage shown to Ms. Jaramillo. She identified Mr. Lowe as the leader of the men. Fingerprints taken from the beer bottles and other items in the residence also placed Mr. Lowe at the scene. The items taken from Ms. Jaramillo's residence were later found in the apartment of a young woman who said that Mr. Lowe and two other men brought the items there. In December 2000, Mr. Lowe was charged by information with first degree robbery (RCW 9A.56.200(1)(a)), first degree kidnapping (RCW 9A.40.020(1)(b)), first degree animal cruelty (RCW 16.52.205), and first degree burglary (RCW 9A.52.020(1)(a)). At trial, the State presented the testimony of Camille Brisbois, a young woman who had driven Mr. Lowe and two other men to Ms. Jaramillo's residence on the night of the incidents, and who later picked up the other two men there. She testified that Mr. Lowe had a gun and forced her and the other men to do his bidding. One of the men who helped Mr. Lowe restrain Ms. Jaramillo and take items from the residence also testified for the State. A veterinarian testified that the bullet entered the dog's upper neck, traveled through the chest and diaphragm, and came to rest under the dog's rib cage, severing major organs and arteries. Before resting its case, the State moved to amend the information to add an alternate basis for the animal cruelty count. Originally, the count alleged that Mr. Lowe intentionally caused physical injury to an animal. RCW 16.52.205(1)(b). The amendment added as an alternate basis that Mr. Lowe killed an animal by a means causing undue suffering.1 RCW 16.52.205(1)(c). Although Mr. Lowe objected that the evidence did not support this alternative, the court granted the motion to amend. The jury found Mr. Lowe guilty of all charges and found by special verdicts that he was armed with a firearm when he committed the robbery, kidnapping, and burglary. At the sentencing hearing, Mr. Lowe moved for merger of the kidnapping and robbery convictions. He also asked the trial court to impose only one of the firearm enhancements. The trial court found independent purposes and effects in the separate crimes of burglary, robbery, and kidnapping, and different intended victims. Consequently, the court did not merge any of the crimes for sentencing purposes. The trial court imposed the high end of the standard sentence for each crime, to run concurrently, and added three 60-month firearm enhancements, to run consecutively: a total of 310 months. Animal Cruelty On appeal, Mr. Lowe first contends the evidence is insufficient to support his conviction for first degree animal cruelty. He argues that the Legislature intended that only the third alternative in RCW 16.52.205(1) applies when an animal is killed, and argues that the State failed to prove that the dog suffered undue suffering. On review of the sufficiency of the evidence, we view the evidence in the light most favorable to the State and ask whether any rational trier of fact could find the essential elements of the crime beyond a reasonable doubt. State v. Bencivenga, 137 Wn.2d 703, 706, 974 P.2d 832 (1999). First degree animal cruelty may be committed three alternate ways, by intentionally (1) inflicting substantial pain on an animal, (2) causing physical injury to an animal, or (3) killing an animal by a means causing undue suffering. RCW 16.52.205(1). Each alternative sets forth separate and distinct acts. State v. Andree, 90 Wn. App. 917, 920, 954 P.2d 346 (1998). For instance, an act may cause substantial pain without physically

injuring an animal. RCW 16.52.205(1)(a). Likewise, a physical injury may not cause pain that qualifies as substantial. RCW 16.52.205(1)(b). While in many cases the death of an animal is caused by physical injury, such is not the case when an animal is intentionally starved to death--clearly satisfying the death with undue suffering alternative. RCW 16.52.205(1)(c). In this case, the jury was instructed that it could find that Mr. Lowe intentionally caused physical injury to an animal, or killed an animal by a means causing undue suffering. Additionally, the jurors were instructed that they must unanimously agree that either the first option or the second option was proved beyond a reasonable doubt. An act contrary to any one of the three animal cruelty alternatives is a complete violation of the statute. Andree, 90 Wn. App. at 920. Consequently, any evidence that supports beyond a reasonable doubt a finding that Mr. Lowe's intentional act physically injured the dog or killed the dog by a means causing undue suffering is sufficient to uphold the jury's verdict of guilty. Substantial evidence supports each alternative means. See State v. Kitchen, 110 Wn.2d 403, 410, 756 P.2d 105 (1988) (the jury need not be unanimous regarding the alternative means of committing a crime if substantial evidence supports each alternative means). By shooting the dog in the neck, Mr. Lowe clearly physically injured it. Further, evidence in the record shows that the bullet traveled through major organs before settling below the dog's rib cage. The path of the bullet and the fact that the dog apparently bled copiously support an inference that the dog's death involved undue suffering. On either basis, the evidence supports a rational juror's conclusion that beyond reasonable doubt, Mr. Lowe's intentional act physically injured or caused death with undue suffering. Merger Mr. Lowe next contends the trial court erred in denying his motion to merge the crimes of first degree kidnapping and first degree robbery for sentencing purposes. Citing State v. Vladovic, 99 Wn.2d 413, 662 P.2d 853 (1983), he contends merger is required because the kidnapping was incidental to and intricately tied to the robbery. As charged here, a person is guilty of first degree kidnapping if he or she intentionally abducts a person with the intent to facilitate the commission of any felony or flight thereafter. RCW 9A.40.020(1)(b). First degree robbery is the felony Mr. Lowe allegedly intended to facilitate when he abducted Ms. Jaramillo. RCW 9A.56.200. Merger is a doctrine of statutory interpretation used to determine whether the Legislature intended multiple punishments for a single act that violates several statutory provisions. In re Pers. Restraint of Fletcher, 113 Wn.2d 42, 50-51, 776 P.2d 114 (1989). As described in Vladovic, 99 Wn.2d at 421, the doctrine only applies where the Legislature has clearly indicated that in order to prove a particular degree of crime (e.g., first degree rape) the State must prove not only that a defendant committed that crime (e.g., rape) but that the crime was accompanied by an act which is defined as a crime elsewhere in the criminal statutes (e.g., assault or kidnapping). Although Vladovic indicated that robbery could merge into kidnapping if the robbery was 'merely incidental to the kidnapping,' id. at 421, Fletcher, 113 Wn.2d at 52-53, rejects this statement as erroneous dicta. As noted in Fletcher, the kidnapping statute merely requires proof of intent to commit acts, including acts defined as crimes. Id. at 52. The person who intentionally abducts another with the intent to commit robbery satisfies RCW 9A.40.020(1)(b) without actually committing the robbery. Id. at 52-53.

Consequently, first degree robbery does not merge into first degree kidnapping. Id. at 53. Mr. Lowe's contention that the kidnapping should merge into the robbery conviction because the kidnapping was merely incidental to the ultimate purpose to rob Ms. Jaramillo is also without merit. As stated in Vladovic, 99 Wn.2d at 421, the State can prove first degree robbery without proving kidnapping. Thus, the Legislature did not intend that kidnapping should merge into a robbery conviction. Id., cited in Fletcher, 113 Wn.2d at 51-52. Instruction on Accomplice Liability Mr. Lowe raises several issues on appeal pro se. In the first of these, he contends the jury instructions improperly and prejudicially referred to accomplice liability. Citing State v. Cronin, 142 Wn.2d 568, 14 P.3d 752 (2000), he argues that the accomplice instructions impermissibly allowed the jury to convict him without a finding that he had knowledge of the actual crime for which he was charged. We will find jury instructions sufficient if they permit each party to argue his or her theory of the case and if they properly inform the jury of the applicable law. State v. Riley, 137 Wn.2d 904, 909, 976 P.2d 624 (1999). In Cronin, the jury was instructed that '{a} person is an accomplice in the commission of a crime if, with knowledge that it will promote or facilitate the commission of a crime, he either: (1) solicits, commands, encourages or requests another person to commit the crime; or (2) aids or agrees to aid another person in committing a crime.' 142 Wn.2d at 576-77. With this language, it appears that accomplice liability attaches whenever the defendant knows that he or she is aiding in the commission of any crime, not necessarily the crime with which he or she is charged. Id. at 578-79. Because that is a misstatement of the law and relieves the State of the burden of proving every essential element of the crime, Cronin held that any similar accomplice instruction is reversible error. Id. at 579-80. And because such an error affects the defendant's constitutional right to a fair trial, it may be raised for the first time on appeal. RAP 2.5(a)(3); State v. Stein, 144 Wn.2d 236, 240-41, 27 P.3d 184 (2001); State v. Mangan, 109 Wn. App. 73, 76 n.1, 34 P.3d 254 (2001). In this case, the accomplice instruction is written correctly: A person is an accomplice in the commission of the crime if, with knowledge that it will promote or facilitate the commission of the crime, he or she either: (1) solicits, commands, encourages, or requests another person to commit the crime; or (2) aids or agrees to aid another person in planning or committing the crime. Clerk's Papers (CP) at 10 (emphasis added). With reference to 'the crime' rather than to 'a crime,' the instruction clearly indicates that the jury must find that the defendant must have knowledge that he or she is facilitating the crime for which he or she is eventually charged. Cronin, 142 Wn.2d at 579. Similarly, the burglary instruction directs the jury to consider whether Mr. Lowe or 'an accomplice in the crime charged' was armed with a deadly weapon. CP at 25. As with the definitional instruction, the State carries the burden of showing that the accomplice facilitated the crime charged.

Mr. Lowe also contends the evidence is not sufficient to convict him as an accomplice. But the instructions do not refer to Mr. Lowe as a possible accomplice in the crimes charged. The accomplice instructions relate only to the issue of whether Mr. Lowe or an accomplice was armed with a deadly weapon or a firearm. In light of witness testimony that Mr. Lowe temporarily gave his handgun to one of his associates while the associate was guarding Ms. Jaramillo, the evidence is sufficient to support a finding that Mr. Lowe and at least one of his accomplices were armed during the incident. Juvenile Convictions and the Offender Score Mr. Lowe's next pro se assignment of error is to the trial court's alleged revival of a washed out juvenile felony adjudication for the purposes of his offender score. The juvenile adjudication for possession of a controlled substance was for a crime committed in September 1996. Prior to 1997, a defendant's criminal history included juvenile felonies if the defendant was 15 years of age or older, and class B or C felonies if the defendant was less that 23 years of age when the current offense was committed. Former RCW 9.94A.030(12)(b) (1996); State v. Smith, 144 Wn.2d 665, 670, 30 P.3d 1245, 39 P.3d 294 (2001). Consequently, juvenile felonies washed out after an offender reached age 23 and juvenile felonies committed when the offender was less than age 15 were not included in subsequent offender scores. Smith, 144 Wn.2d at 670-71. In 1997, the statute was amended to include all prior juvenile adjudications in a defendant's criminal history. Laws of 1997, ch. 338, sec. 2 (1997 amendment). Smith holds that the 1997 amendment cannot be applied retroactively to revive previously washed out juvenile adjudications. 144 Wn.2d at 674-75. Mr. Lowe committed his juvenile offense when he was over age 15, and he committed the current crimes under the age of 23. Consequently, his juvenile adjudication had not washed out before his current offenses. Moreover, even if the juvenile adjudication had washed out, Mr. Lowe's sentence would not have been affected. Noting that the juvenile possession should count for one-half point pursuant to former RCW 9.94A.360(7) (1999), but that it must be rounded down to zero (former RCW 9.94A.360), the trial court did not include the juvenile adjudication in Mr. Lowe's offender score. Same Criminal conduct The next pro se contention is that the trial court violated the double jeopardy clause when it did not treat Mr. Lowe's multiple convictions as the same criminal conduct for sentencing purposes. Double jeopardy protects a defendant from multiple punishments for the same offense. Vladovic, 99 Wn.2d at 423. However, if there is an element in each offense that is not contained in the other, and proof of one offense would not necessarily prove the other, then the offenses are not constitutionally the same and double jeopardy does not attach. Id. By statute, Washington law further provides that if some or all of a defendant's current offenses encompass the same criminal conduct, then those offenses are counted as one crime for sentencing purposes. Former RCW 9.94A.400(1)(a) (1999). Same criminal conduct is defined as 'two or more crimes that require the same criminal intent, are committed at the same time and place, and involve the same victim.' Former RCW 9.94A.400(1)(a). Neither double jeopardy nor same criminal conduct under former RCW 9.94A.400(1)(a) were raised at the trial level. Although double jeopardy is a constitutional issue that may be raised for the first time on appeal, State v. Adel, 136 Wn.2d 629, 631-32, 965 P.2d 1072 (1998), it is well settled that the issue of same criminal conduct cannot be raised for the first time on appeal. State v. Nitsch, 100 Wn. App. 512, 519, 997 P.2d

1000, review denied, 141 Wn.2d 1030 (2000). Therefore, we confine our analysis to the double jeopardy issue. As noted in Vladovic, robbery and kidnapping each include an element that is not included in the other. 99 Wn.2d at 423. To prove robbery, the State must prove a taking of property, which is not an element of kidnapping. Id. To prove kidnapping, the State must prove abduction of a victim through the use or threatened use of deadly force, not elements of robbery. Id. Burglary requires a showing of illegal entry with the intent to commit a crime, elements not included in robbery or kidnapping. RCW 9A.52.020. Accordingly, the offenses do not implicate double jeopardy. Multiple Firearm Enhancements Mr. Lowe's next pro se challenge is to the consecutive firearm enhancements imposed on his concurrent sentences for the robbery, kidnapping, and burglary convictions. Pursuant to former RCW 9.94A.310(3) (1999), the trial court added 60 months for each of the three class A felonies, based on the special verdicts finding that Mr. Lowe was armed with a firearm, and ran each enhancement consecutively to the others for a total of 180 months of firearm enhancements. Mr. Lowe contends the multiple enhancements constitute a violation of the double jeopardy clause. The double jeopardy clauses of article I, section 9 of the Washington Constitution and the fifth amendment to the United States Constitution prevent greater punishment for a single offense than the Legislature intended. State v. Pentland, 43 Wn. App. 808, 811, 719 P.2d 605 (1986). In this case, former RCW 9.94A.310(3) provides that firearm enhancements apply to all felonies, are mandatory, and must run consecutively to all other sentencing provisions, including other firearm or deadly weapon enhancements. Because the Legislature clearly intended that multiple enhancements were mandatory and must run consecutively with each other, double jeopardy is not triggered here. Sequestration of Witnesses Finally, Mr. Lowe contends pro se that the trial court improperly allowed a detective who was a State's witness to sit in court during the testimony of other witnesses. He also contends his counsel was ineffective because he did not object to the detective's presence. A trial court may, at the request of a party, exclude witnesses from the courtroom so they cannot hear the testimony of other witnesses. ER 615. In this case, the trial court granted Mr. Lowe's pretrial motion to exclude witnesses. According to Mr. Lowe, the trial court then allowed one of the State's witnesses, a detective, to remain in the courtroom during other testimony. This assertion is not supported by the record and consequently cannot be the basis for review by this court. State v. Elliott, 114 Wn.2d 6, 15, 785 P.2d 440 (1990) (an appellate court will not consider arguments that are not supported by authority or citation to the record). Affirmed. A majority of the panel has determined that 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. Schultheis, J. WE CONCUR: Brown, C.J. Kato, J.

1 The amended information is not contained in the record. >>