State Of Washington v. Sandor Rivera ( 2014 )

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON,
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No. 68914-2-1
Respondent,
DIVISION ONE
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SANDOR RIVERA, UNPUBLISHED OPINION
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Appellant. FILED: January 13, 2014 cn
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Becker, J. — Sandor Rivera challenges the sentence imposed following
his convictions for first degree assault, first degree robbery, first degree burglary,
and intimidating a witness, all with deadly weapon enhancements. He argues
that the assault, robbery, and burglary convictions constituted the same criminal
conduct for purposes of calculating his offender score. Because the trial court
did not abuse its discretion in counting the three convictions separately and
because the arguments in Rivera's statement of additional grounds for review are
without merit, we affirm.
FACTS
On February 14, 2010, Gary Cook, a manager at Radio Shack in Federal
Way, arrived to open the store for the day's business. He saw Sandor Rivera
waiting outside the store. Rivera was wearing a Radio Shack uniform and an
official company name tag. He told Cook that he was an employee at the Radio
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Shack in Auburn and explained he was there for an "intracompany stock
transfer," meaning that he would pick up some merchandise from the Federal
Way store and transfer it to the Auburn store. Thinking Rivera was a legitimate
employee on routine business, Cook unlocked the store, and Rivera followed him
to the stockroom.
As Cook turned to open the security cage in the stockroom where high-
end electronics were kept, Rivera struck Cook in the back of the head several
times with a knife with a large blade. Cook fell to the floor and crawled as far
away from Rivera as he could. He touched the back of his neck and felt bone;
when he removed his hand it was covered in blood. Cook told Rivera that he
would not fight back and that Rivera could take whatever he wanted from the
stockroom. As Cook lay on the floor, Rivera took Cook's store keys, car keys,
and cell phone. Cook explained to Rivera how to unlock the security cage. Cook
heard Rivera taking things and putting them in plastic shopping bags.
Cook became concerned about the amount of blood he was losing and
begged Rivera to hurry and finish so that he could get medical attention. Rivera
went into the employee lunchroom and got an ice pack and some paper towels,
which he gave to Cook. Rivera then left the stockroom and went into the main
store area, where Cook could hear him tearing open packaging. Rivera soon
returned to the stockroom and tied Cook up with zip ties he found in the store.
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Rivera continued to take items from the stockroom. Rivera then left the
stockroom again briefly, but returned and hit Cook two or three more times in the
back of the head with the knife, using a downward chopping motion. Cook
begged Rivera to stop, reiterating that he would not prevent Rivera from taking
the merchandise. Rivera told Cook that he would stop hitting him and that "it'll all
be over real quick." Cook thought Rivera was referring to the robbery, but Rivera
then knelt on Cook's body and began poking a screwdriver into Cook's scalp
wounds. Afraid Rivera meant to kill him, Cook managed to break out of the zip
ties and knock the screwdriver from Rivera's hand.
Rivera then ordered Cook into the employee bathroom, where he took
Cook's wallet. Rivera removed Cook's driver's license and told Cook that if Cook
identified him to the police, Rivera would come to his home and kill his family.
Rivera tied Cook up with a vacuum cleaner extension cord and put a plastic
shopping bag over Cook's head, which he secured around Cook's neck with a zip
tie. Rivera left the bathroom and was gone for a longer period of time than
before, but returned and began hitting Cook in the back of the head again.
Rivera admitted that he did not want to kill Cook but also did not want to leave a
witness to the crime. Rivera then pressed the knife to Cook's throat. Cook
attempted to push Rivera away as Rivera swung the knife at him, slashing at his
head and cutting his ear. Rivera again promised he would stop hitting Cook if
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Cook stayed in the bathroom for an hour to give Rivera time to escape. Cook
stayed in the bathroom, counting the seconds, until he began experiencing
confusion and was afraid that he would lose consciousness. Cook called out
and, hearing no answer, determined that Rivera had left the store. Cook crawled
to his office, called 911, and passed out.
The State charged Rivera with one count of first degree assault, one count
of first degree robbery, one count of first degree burglary and one count of
intimidating a witness, all with deadly weapon enhancements. The jury convicted
Rivera as charged.
At sentencing, Rivera argued that all four convictions constituted the same
criminal conduct and asked the court to count them as only one offense for the
purposes of his offender score. The trial court disagreed:
There doesn't seem to be a dispute as to whether or not of
the three criteria that the Court must look at that the acts occurred
at the same time and did occur in the same place, which was
Radio Shack. I will find as to the Burglary charge that there were
two victims, that was Mr. Cook as well as the business of Radio
Shack.
I am going to further find that the antimerger statute does
apply as it relates to the facts in this case.
I am going to find that there are differing intents as to the
other charges. Looking at the charge of Burglary, if you will, there
certainly was the intent to enter into the store; and the charge of
Burglary in the First Degree once there was an assault. I will find
that that intent was committed.
The issue of Robbery, I will find that although he did enter
and remain in the store, which this Court following the assault finds
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No. 68914-2-1/5
is burglary, that there further was the intent to commit a Robbery
with force. He did, in fact, turn his attention on Mr. Cook, took the
keys to the cage, as well as took » as well as the cell phone of
Mr. Cook. He did so with the threatened use of violence, and he
also did so with a deadly weapon.
As to the assault. Even after entering into the store and, if
you will, robbing Mr. Cook, he continued to assault Mr. Cook.
Indeed, he basically tortured Mr. Cook, causing great bodily harm.
I am going to find that the attack or the torture, the cutting of the
neck, the tapping the base of the skull, the placing of that bag
around his head, indeed, was -- it was so far in excess of what was
necessary in order to commit the burglary and the robbery, as well.
As to the intimidation of a witness. Finally, the defendant
threatened both Mr. Cook's life as well as the life of his family; and
that, indeed, and I think as the facts bear out here was successful
to prevent Mr. Cook from telling the police exactly what happened.
I will find that in so doing that the purpose was to thwart
investigation or any subsequent prosecution.
Rivera appeals.
DISCUSSION
Same Criminal Conduct
Rivera argues that the trial court erred when it found that the convictions
for burglary, robbery, and assault were not the same criminal conduct. Under the
Sentencing Reform Act of 1981, an offender's sentence range for each
conviction is ordinarily calculated by counting "all other current and prior
convictions as ifthey were prior convictions for the purpose of the offender
score." RCW 9.94A.589(1)(a). The act provides an exception to this general rule
if the court finds that some or all of the current offenses encompass the same
criminal conduct. RCW 9.94A.589(1)(a). Crimes constitute the same criminal
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No. 68914-2-1/6
conduct when 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). Unless all
three of these elements are present, the offenses do not constitute the same
criminal conduct and must be counted separately in calculating the offender
score. State v. Porter, 133 Wash. 2d 177, 181, 942 P.2d 974 (1997). "The statute
is generally construed narrowly to disallow most claims that multiple offenses
constitute the same criminal act." Porter, 133 Wash. 2d at 181.
We review the trial court's determination of what constitutes the same
criminal conduct for an abuse of discretion or misapplication of the law. State v.
Graciano, 176 Wash. 2d 531, 537, 295 P.3d 219 (2013). "Under this standard,
when the record supports only one conclusion on whether crimes constitute the
'same criminal conduct,' a sentencing court abuses its discretion in arriving at a
contrary result." Graciano, 176 Wash. 2d at 537-38. "But where the record
adequately supports either conclusion, the matter lies in the court's discretion."
Graciano, 176 Wash. 2d at 538. A trial court abuses its discretion if it makes a
manifestly unreasonable decision based on untenable grounds or for untenable
reasons. State ex rel. Carroll v. Junker, 79 Wash. 2d 12, 26, 482 P.2d 775 (1971).
A person is guilty of first degree burglary if he or she enters or remains
unlawfully in a building with intent to commit a crime against a person or property
therein, and he or she is armed with a deadly weapon or assaults any person
inside. RCW 9A.52.020. A person commits first degree robbery, as charged
No. 68914-2-1/7
here, by unlawfully taking property from another person against that person's will
by the use or threatened use of force, violence, or fear of injury, and if he is
armed with a deadly weapon or inflicts bodily injury. RCW 9A.56.190, .200(1 )(a).
A person is guilty of first degree assault, as charged here, if he or she assaults
another and inflicts great bodily harm or assaults another with a deadly weapon
likely to produce great bodily harm. RCW 9A.36.011 (a), (c).
The trial court did not abuse its discretion in counting the burglary
separately from the assault and the robbery because the crimes did not involve
the same victims. Cook was the victim of the assault and the robbery. However,
both Cook and Radio Shack were victims of the burglary. The burglary was
therefore not the same criminal conduct as the assault and the robbery.
The trial court furthermore did not err in counting the assault and the
robbery separately from each other because they did not share the same criminal
intent. Whether two crimes share the same criminal intent depends on "'the
extent to which the criminal intent, objectively viewed, changed from one crime to
the next. . . . This, in turn, can be measured in part by whether one crime
furthered the other.'" State v. Williams. 135 Wash. 2d 365, 368, 957 P.2d 216
(1998) (alteration in original), quoting State v. Vike, 125 Wash. 2d 407, 411, 885
P.2d 824 (1994). Here, Rivera assaulted Cook the first time in order to secure
Cook's compliance to the robbery. Cook told Rivera that he would not fight back
and Rivera was free to take whatever merchandise he wanted. Despite the fact
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No. 68914-2-1/8
that Rivera did not need further force to commit the robbery, he continued to
assault Cook. On at least three separate occasions after the initial assault,
Rivera left Cook alone and then returned to commit further violence: hitting Cook
again with the knife, poking a screwdriver into Cook's wounds, and slashing at
Cook's head and ear with the knife. As the trial court appropriately found, these
assaults were "far in excess of what was necessary in order to commit the
burglary and the robbery."
Statement of Additional Grounds
Pursuant to RAP 10.10, Rivera raises several additional grounds for
review.
Rivera contends that the State committed misconduct by: (1) offering
perjured testimony, (2) purposefully misstating his testimony in closing argument,
(3) referring to him as "sick and twisted," and (4) asserting that he tailored his
testimony. To prevail on a claim of prosecutorial misconduct, Rivera must show
both improper conduct and prejudicial effect. State v. Roberts, 142 Wash. 2d 471,
533, 14 P.3d 713 (2000). Where, as here, a defendant failed to object, move for
mistrial, or request a curative instruction, review is appropriate only if the
prosecutorial misconduct is "so flagrant and ill intentioned" that no curative
instruction could have obviated the prejudice engendered by the misconduct.
State v. Emery, 174 Wash. 2d 741, 760-61, 278 P.3d 653 (2012). This court views
a prosecutor's allegedly improper comments in the context of the total argument,
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the issues in the case, the evidence addressed in the argument, and the jury
instructions given. State v. Dhaliwal, 150 Wash. 2d 559, 578, 79 P.3d 432 (2003).
Under this standard of review, Rivera's claims are without merit.
First, Rivera claims that the State failed to correct an inconsistency in the
testimony of Michael Ranetta, a fellow inmate to whom Rivera made
incriminating statements. But a review of the testimony to which Rivera cites
shows that there was no inconsistency.
Next, Rivera claims the State intentionally misrepresented facts when the
deputy prosecutor in closing argument characterized Rivera's attitude towards
the crime as, "I'm going to stop. I'm sorry. Actually, I'm not, slash. I'm going to
stop. I'm going to leave. I'm sorry. Wait. I lied." But the prosecutor did not
attribute these statements to Rivera. Rather, the prosecutor was arguing that
Rivera was guilty of intimidating a witness because he deliberately terrified Cook
so that Cook would not report the crime to the police. Defense counsel clarified
to the jury that these were not direct statements made by Rivera. Rivera fails to
establish that the statements were prejudicial or any prejudice was not cured by
defense counsel's clarification.
Rivera claims that the prosecutor committed misconduct by referring to
him and his actions as "sick and twisted" during closing argument. While the
prosecutor's remarks are not well taken, there was not a substantial likelihood
that those remarks affected the jury's verdict, particularly given the fact that
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No. 68914-2-1/10
defense counsel reiterated the "sick and twisted" language several times to argue
that Rivera committed his crimes under duress, not out of malice.
Rivera's final theory of misconduct is that the prosecutor improperly cross-
examined him as to whether he had tailored his testimony to match the police
report and argued that he had "practiced and rehearsed" his story. But a
prosecutor is not prohibited "from indicating, via questioning, that a defendant
has tailored his or her testimony to align with witness statements, police reports,
and testimony from other witnesses at trial." State v. Martin, 171 Wash. 2d 521,
533, 252 P.3d 872 (2011).
Rivera argues that the trial court erred in admitting several photographs
that he alleges were unduly prejudicial. But the photographs Rivera challenges
are not part of the record on review, and thus we cannot consider this claim of
error on direct appeal. State v. McFarland, 127 Wash. 2d 322, 335, 899 P.2d 1251
(1995).
Rivera contends that the trial court demonstrated bias against him at
sentencing by stating that she was "extremely disturbed" by the testimony and
that what had happened to Cook was "an absolute nightmare." To the extent that
Rivera argues that the trial court's remarks violated the appearance of fairness
doctrine, Rivera must show evidence of the trial court's actual or potential bias.
State v. Post. 118 Wash. 2d 596, 619 n.8, 826 P.2d 172, 837 P.2d 599 (1992).
These comments do not show bias but rather were part of the trial court's
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No. 68914-2-1/11
explanation for why Rivera's crimes warranted the high end of the standard
range.
Rivera contends that his convictions for first degree assault and first
degree robbery violate double jeopardy because the assault conviction should
merge into the robbery conviction. Although there are several methods to
determine the existence of a double jeopardy violation, Rivera argues only that
the merger doctrine applies, and thus we focus solely on that analysis. 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 Wash. 2d 413, 419, 662 P.2d 853 (1983). However, the legislature did
not intend that first degree assault merge into first degree robbery. State v.
Freeman. 153 Wash. 2d 765, 778, 108 P.3d 753 (2005). Consequently, Rivera's
convictions do not merge.
Finally, Rivera claims that he was entitled to a unanimity instruction with
respect to which act of assault formed the basis for the assault conviction and
which act of assault elevated the degree of the robbery conviction. But here, the
State charged two alternative means of committing first degree robbery—that
Rivera inflicted bodily injury and that he used a deadly weapon—and the jury was
instructed on both means. Where a defendant is charged with committing a
crime by alternative means, unanimity is not required as to which alternative
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No. 68914-2-1/12
jurors rely upon so long as the State presents sufficient evidence to support each
alternative. State v. Randhawa. 133 Wash. 2d 67, 73-74, 941 P.2d 661 (1997).
Rivera does not argue that the evidence was insufficient to support either of the
alternative means of committing first degree robbery. As a result, the jury
instructions were proper.
Affirmed.
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WE CONCUR:
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