State Of Washington, Respondent V. Yusef Abdi Yusuf, Appellant

Sii
2Oi&IR—5 	AK 8:33
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
THE STATE OF WASHINGTON, 	) 	No. 75571-4-I
)
Respondent, 	)
) 	DIVISION ONE
v. 	)
)
YUSEF ABDI YUSUF, 	) 	UNPUBLISHED OPINION
)
Appellant. 	) 	FILED: March 5, 2018
MANN, J. — Yusef Yusuf appeals his conviction for two counts of possessing
stolen property in the second degree. 	He claims that (1) preaccusatorial delay violated
his right to due process, (2) the trial court abused its discretion by denying his CrR
8.3(b) motion to dismiss, (3) his counsel was ineffective for failing to object to prejudicial
evidence, (4) prosecutorial misconduct deprived him of his right to a fair trial, and (5) the
sentencing court abused its discretion by counting his prior convictions for felony
harassment and third degree assault as separate criminal conduct. 	Because all of
Yusuf’s claims fail, we affirm his judgment and sentence.
FACTS
On Christmas Eve 2013, Yusuf robbed Blue Cable Wireless, a celiphone store, at
gunpoint. 	Almost a year later, on December 19, 2014, the State charged Yusuf with first

No. 75571-4-1/2
degree robbery. 	A week later, on December 26, Yusuf was arrested in Seattle on an
outstanding warrant for robbery and booked in the King County Correctional Facility.
When arrested, Yusuf was carrying stolen property including a pink clutch containing
Clair Gilleg’s identification, several debit cards, and new iPhone. 	The property was
unrelated to the Christmas Eve 2013 robbery. 	On December 31, 2014, Yusuf was
arraigned on the robbery charge. 	That same day, the Seattle Police Department
referred Yusuf’s possession of stolen property case to the King County Prosecuting
Attorney’s Office.
Yusuf was held on bail on the robbery charge in the King County Correctional
Facility from December 26, 2014, to June 2015. 	On June 8, 2015, Yusuf pleaded guilty
to the reduced charges of one count of third degree assault and two counts of felony
harassment. 	On June 26, the trial court sentenced Yusuf to 12 months total
confinement with credit for time served. 	Yusuf was released from incarceration on
August 22, 2015, after serving 8 months.
On January 12, 2016, the State charged Yusuf with one count of possessing
stolen property in the second degree for possessing one of Gilleg’s debit cards on
December 26, 2014. 	Yusuf was arrested on a warrant on January 15, 2016.
On April 21, 2016, the State moved to amend the information to charge Yusuf
with a second count of possessing stolen property in the second degree for possessing
Gilleg’s iPhone. 	Count II required the State to prove that the property had a “value in
excess of $750.” The trial court permitted the amendment over Yusuf’s objection, but
also granted Yusuf an extension in order to investigate the value of the iPhone. 	On
April26, 2016, the trial court considered Yusuf’s motion to dismiss pursuant to CrR
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No. 75571-4-113
8.3(b), based on the late amendment of the charges. 	After noting that there were three
weeks remaining with the speedy trial period, the trial court denied the motion.
On May 26, the jury found Yusuf guilty of two counts of possessing stolen
property in the second degree. 	Yusuf was given a standard range sentence of 12
months for each count to run concurrently. 	The court gave Yusuf credit for time served
between his arrest on January 15, 2016 and his conviction. 	Yusuf appeals.
ANALYSIS
Preaccusatorial Delay
Yusuf claims first that preaccusatorial delay violated his right to due process. 	He
asserts that the State’s delay in charging him with possessing stolen property
prejudiced him because he lost credit for time served on his earlier robbery conviction.
Because Yusuf fails to demonstrate that the State’s delay violates fundamental
conceptions of justice, we disagree.
We review whether preaccusatorial delay violated a defendant’s right to due
process de novo. 	We take the entire record into account when determining prejudice.
State v. Oprelt, 172 Wn.2d 285, 290, 257 P.3d 653 (2011).
Preaccusatorial delay may result in a due process violation. 	United States v.
Lovasco, 431 U.S. 783, 789, 97 S. Ct. 2044, 52 L. Ed. 2d 752 (1977). 	“But the Due
Process Clause does not permit courts to abort criminal prosecutions simply because
they disagree with a prosecutor’s judgment as to when to seek an indictment. 	Judges
are not free, in defining ‘due process,’ to impose on law enforcement officials our
‘personal and private notions’ of fairness and to ‘disregard the limits that bind judges in
their judicial function.” 	Lovasco, 431 U.S. at 790 (quoting Rochin v. California, 342 U.S.
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No. 75571-4-114
165, 17072 S. Ct. 205, 96 L. Ed. 183 (1952)). 	Our role is to determine whetherthe
action Yusuf complains of, compelling him to stand trial for possession of stolen
property after he pleaded guilty to robbery charges for an unrelated crime a year earlier,
violates those “‘fundamental conceptions of justice which lie at the base of our civil and
political institutions.” 	Oppelt, 172 Wn.2d at 292 (internal quotation marks omitted)
(quoting State v. Calderon, 102 Wn.2d 348, 353, 684 P.2d 1293 (1984)).
Our Supreme Court has established a three-prong test to determine whether
delay violated due process: “(1) the defendant must show actual prejudice from the
delay; (2) if the defendant shows prejudice, the court must determine the reasons for
the delay; (3) the court must then weigh the reasons and the prejudice to determine
whether fundamental conceptions of justice would be violated by allowing prosecution.”
Oppelt, 172 Wn.2d at 295.
Yusuf argues that he was prejudiced because he lost credit for the time he
served in jail on the robbery charges—had the State charged him with possessing
stolen property at the time he was charged with robbery, he would have been entitled to
credit for time served on that charge and the robbery charge.
“[A] person unable to obtain pretrial release may not be confined for a longer
period of time than a person able to obtain pretrial release without violating due process
and equal protection.” 	Statev. Lewis, 184 Wn.2d 201, 205, 355 P.3d 1148 (2015).
RCW 9.94A.505(6) implements this constitutional right: “[tjhe sentencing court shall give
the offender credit for all confinement time served before the sentencing if that
confinement was solely in regard to the offense for which the offender is being
sentenced.” 	RCW 9.94A.505(6).
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No. 75571-4-1/5
But here, we do not need to decide if Yusuf was prejudiced because even if
Yusuf can establish that he was prejudiced by the State’s delay, he cannot demonstrate
that the delay was negligent, unreasonable, or unwarranted, and that the delay “violates
those fundamental conceptions of justice which lie at the base of our civil and political
institutions, and which define the community’s sense of fair play and justice.” 	Lovasco,
431 U.S. at 790 (internal quotations omitted). 	The charge for possession of stolen
property was “purposefully not rush filed so that it could be transferred to the negotiating
deputy who had the defendant’s pending [robbery] cases. 	That deputy refrained from
filing the case in the hopes that it could be used to leverage a global resolution that
would encompass [Yusuf’s] two pending cases.” The State’s reasons for delay do not
violate the fundamental conceptions of justice. 	It does not matter that the State
ultimately did not reach a resolution on the possession of stolen property charges.
Yusuf cannot demonstrate that the State’s choice to use an unfiled and unrelated
bargaining chip in negotiating a pending case was an improper exercise of prosecutorial
discretion. 	Nor does Yusuf argue that there is a constitutional right to compel the State
to file all charges referred while other cases are pending. 	Yusuf’s claim for
preaccusatorial delay fails.
Criminal Rule 8.3
Yusuf claims next that the court abused its discretion by denying his motion to
dismiss the charges against him under CrR 8.3. 	We disagree. 	Because the State’s late
amendment occurred within the speedy trial time, we conclude that Yusuf was not
prejudiced by the State’s late amendment.
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No. 75571-4-1/6
We review a trial court’s denial of a motion to dismiss under CrR 8.3 for abuse of
discretion. 	Oppelt, 172 Wn.2d at 297.
The State charged Yusuf with one count of possessing stolen property in the
second degree on January 12, 2016. 	On April21, the State moved to amend its
information to add a second count of possessing stolen property in the second degree,
including an iPhone, valued over $750. 	The court granted the motion to amend and a
continuance so that Yusuf could investigate the value of the iPhone. 	On April 26, Yusuf
moved to dismiss the case, or alternatively just count II, under CrR 8.3(b). 	The trial
court denied Yusuf’s motion on the grounds that he was not prejudiced by the late
amendment because it believed that he still had time to investigate the added element
of the iPhone’s cost and put on a defense: “Inasmuch as there are three weeks
remaining within the speedy trial [time], I am satisfied that there is no prejudice, actual
prejudice, in this case.”
CrR 8.3(b) provides that a court “may dismiss any criminal prosecution due to
arbitrary action or governmental misconduct when there has been prejudice to the rights
of the accused which materially affect the accused’s right to a fair trial.” 	First, the
defendant must show arbitrary government action or misconduct, which may include
simple mismanagement. 	Second, the defendant must show actual prejudice affecting
his right to a fair trial. 	Oppelt, 172 Wn.2d at 297.
Yusuf argues that the State’s late amendment of the information prejudiced him
because he was forced to remain incarcerated for another month while his defense
counsel investigated the charge. 	He claims that the State knew the value of the iPhone
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No. 75571-4-1/7
long before it decided to add count II. 	The State responds that Yusuf fails to show how
his right to a fair trial was prejudiced by the late amendment.
Here, Yusuf’s right to a fair trial was not prejudiced because the court granted
Yusuf a three-week continuance so that his lawyer could investigate the added element
of the cost of the iPhone. 	Because this occurred well within the speedy trial time, the
trial court did not abuse its discretion.
Ineffective Assistance of Counsel
Yusuf claims next that his trial counsel was ineffective for failing to object to
prejudicial testimony and failing to move for a mistrial. 	We disagree. 	Because Yusuf
cannot show that the result likely would have been different had his trial counsel moved
for a mistrial or objected, he cannot establish that his trial counsel was ineffective.
Before trial, Yusuf and the State stipulated that Yusuf’s arrest was lawful: “The
parties agree by stipulation that Seattle police officers properly initiated contact with the
defendant on December 26, 2014 and that he was lawfully detained, searched, and
arrested.” The court read this stipulation to the jury.
At trial, Officer Jay McNeil testified as to how he contacted Yusuf on December
26, 2014:
[State]: And can you just sort of describe the circumstances of that
contact, beginning with when you first saw [Yusuf]?
[Officer McNeil]: I was driving with my partner in our patrol vehicle down
11th Avenue. 	And we were looking for the suspect and we—as I passed
Pike Street, going southbound, I saw him wearing the clothes. And I
recognized him from previous contacts and I saw him on the west side,
walking down the middle of the street.	11
1 Report of Proceedings (May 23, 2016) at 257-58 (emphasis added).
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No. 75571-4-1/8
As McNeil and his partner stopped, Yusuf ran down a dark, narrow walkway between
two buildings on Pike Street. 	McNeil and his partner, now on foot, followed and
arrested Yusuf:
[State]: All right. 	What did you do?
[Officer McNeil]: We immediately contacted him. 	We already had reason
for arrestJ	2	]
As Yusuf was being handcuffed, a pink clutch dropped to the ground. 	Yusuf
immediately kicked the clutch away from him, and it fell down into a nearby construction
ditch. After recovering the clutch, the officers took Yusuf to their patrol car so that they
could search him. 	As he was being searched, Yusuf claimed that the clutch belonged to
his wife: “‘That’s my wife’s stuff. 	Take care of my’—expletive word.” The officers
described Yusuf as “intoxicated and belligerent”:
[State]: How was the defendant acting?
[Officer McNeil]: He’s—as he usually does when we contact him. 	He’s
very angry with police. 	Makes threats, very belligerent.
[State]: Okay.
[Officer McNeil]: Demanding.[	3	]
Yusuf did not object to this testimony (objecting only to the question regarding
what Yusuf’s intent may have been).
Yusuf claims that his counsel was ineffective for failing to object to three
statements: (1) that McNeil “recognized [Yusuf] from previous contacts,” (2) that he
“already had reason [to] arrest” Yusuf, and (3) that Yusuf acted “as he usually does
2 RP (May 23, 2016) at 259 (emphasis added).
RP (May 23, 2016) at 263-64 (emphasis added).
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No. 75571-4-119
when [the officers] contact him. 	He’s very angry with police. 	Makes threats, very
belligerent.” 	He also claims that his trial counsel was ineffective for failing to move for a
mistrial.
Where the defendant claims ineffective assistance based on counsel’s failure to
object to the admission of evidence, the defendant must show (1) the absence of a
legitimate strategic or tactical reason to object, (2) an objection would likely have been
sustained, and (3) the result would have been different had the evidence not been
admitted. 	State v. Saunders, 91 Wn. App. 575, 578, 958 P.2d 364 (1998). 	Courts
assess a prior conviction’s prejudicial effect “against the backdrop of the evidence in the
record.” 	Saunders, 91 Wn. App. at 580.
“The trial court should grant a mistrial only when the defendant has been so
prejudiced that nothing short of a new trial can insure that the defendant will be tried
fairly. 	Only errors affecting the outcome of the trial will be deemed prejudicial.” 	State v.
Hopson, 113 Wn.2d 273, 284, 778 P.2d 1014 (1989). 	To determine an irregularity’s
effect, courts examine “(1) its seriousness; (2) whether it involved cumulative evidence;
and (3) whether the trial court properly instructed the jury to disregard it.” 	Hopson, 113
Wn.2d at 284.
Here, Yusuf fails to establish ineffective assistance of counsel. 	Although he can
establish that his counsel’s performance fell below an objective standard of
reasonableness, he cannot show that the result would have been different had the
evidence not been admitted. 	McNeil’s statement that “we already had reason for arrest”
was well within the scope of the stipulation that the officers “properly initiated contact
with” Yusuf. 	But the statements that McNeil “recognized him from previous contacts”
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No. 75571-4-1/10
and about how Yusuf “usually” acts when he is contacted by police were outside the
stipulation’s scope; there was no tactical reason to not object to these statements. 	They
are irrelevant and prejudicial because they imply that Yusuf had multiple “previous
contacts” with the police such that an officer knows how Yusuf “usually” acts while being
arrested. 	This implies that Yusuf has a propensity for crime. 	Assuming an objection
had been made, it would likely have been sustained. 	See ER 404(b) (“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.”).
Yusuf, however, cannot show that the result of his trial would have been different.
There was overwhelming evidence that Yusuf possessed stolen property.	4 Yusuf’s
argument that the court would have granted a mistrial is also unavailing. 	Here, the
irregularity was not that serious. 	McNeil mentioned previous contacts with Yusuf and
that Yusuf acted as he “usually” did while being arrested, but the State and Yusuf
stipulated that police officers “properly initiated contact with” Yusuf and that he “was
lawfully detained, searched, and arrested.” 	Contrary to Yusuf’s’argument, the testimony
was not similar to cases where prior convictions are admitted into evidence without an
objection. 	See State v. Hendrickson, 129 Wn.2d 61, 78, 917 P.2d 563 (1996) (finding
that defense counsel’s failure to object to admission of evidence of defendant’s prior
g, RP (May 23, 2016) at 267-68 (McNeil testifying that State’s Exhibit I showed a
picture of a clutch and an iPhone taken from Yusuf when he was arrested); RP (May 23, 2016) at 295
(arresting officer testifying that State’s Exhibit 1 showed a picture of what she recovered from Yusuf and
the items that she returned to Gilleg); RP (May 23, 2016) at 278 (Gilleg testifying that State’s Exhibit 1
showed a picture of her clutch, iPhone, and debit card that went missing on December 26, 2014 while she
was at a bar called Poquitos); RP (May 23, 2016) at 293 (Officer Shepard testifying that Yusuf was
arrested about a block from Poquitos); RP (May 23, 2016) at 284 (testifying that an iPhone was
purchased for $949.98 for Gilleg a few days before it went missing).
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No. 75571-4-I/li
convictions was not tactical); State v. Escalona, 49 Wn. App. 251, 253, 256, 742 P.2d
190 (1987) (holding that the trial court abused its discretion by failing to grant a mistrial
when witness testified that defendant “already has a record and had stabbed
someone”).
Yusuf counters that because the testimony in this case was short, the result
would have been different had his counsel objected to McNeil’s statements. 	This
argument fails, however, to account for the strength of the evidence presented at trial.
The evidence strongly supported the fact that Yusuf possessed stolen property. 	The
result would not have been different had Yusuf’s attorney objected. 	Yusuf cannot
establish a claim for ineffective assistance of counsel.
Prosecutorial Misconduct
Yusuf next contends that the prosecutor committed misconduct in rebuttal that
deprived him of a fair trial. 	Because the prosecutor did not commit misconduct, we
reject this claim.
In closing, defense counsel argued at length about the fair market value of the
iPhone. 	Counsel reminded the jury that he had told them in his opening statement that
they “would get to see Amazon records, and [] apologize[d] to [them] that [they] don’t
get to see those.” 	Counsel also argued that the jury should want to see evidence from
Amazon and eBay, evidence that was not admitted, regarding the value of the iPhone.
In rebuttal, the prosecutor told the jury that it could only focus on the admitted
evidence:
[State]: Counsel has done a very good job at implying that there was some
evidence that was not—that is not before you that you should be
—11—

No. 75571-4-1/12
considering. 	That is not the law. 	You are only to consider the evidence
that has been submitted and has been admitted.
[Yusuf]: Objection. Misstates the reasonable doubt instruction.
[State]: Counsel has implied that defendant—
[The Court]: Let me rule on it before you go forward.
[Yusuf]: That misstates the reasonable doubt instruction, Your Honor.
[The Court]: Overruled.
[State]: Counsel has implied that the defendant’s—that there—you know,
he’s telling you about these records he promised and how they’re not here
and he’s really sorry that you guys didn’t get to see those. And he’s
implying that Mr. Yusuf did not get a fair shake here.	51
To establish a claim for prosecutorial misconduct, the defendant bears the
burden of proving that the prosecutor’s conduct was both improper and prejudicial.
State v. Emery, 174 Wn.2d 741, 756, 278 P.3d 653 (2012). Arguments that shift or
misstate the State’s burden to prove the defendant’s guilt beyond a reasonable doubt
are misconduct. 	State v. Lindsay, 180 Wn.2d 423, 434, 326 P.3d 125 (2014).
Jury instruction 1, which was based on the Washington Pattern Instructions
Criminal (WPIC) 1.02,6 explains that “[t]he evidence that you are to consider during your
deliberations consists of the testimony that you have heard from witnesses, stipulations
and the exhibits that [the court has] admitted during the trial. 	If evidence was not
admitted or was stricken from the record, then you are not to consider it in reaching your
verdict.” Jury instruction 3A, which was based on WPIC 4.01, the reasonable doubt
RP (May 26, 2016) at 462-63.
6 	WASHINGTON PRACTICE: WASHINGTON PATTERN JURY INSTRUCTIONS: CRIMINAL I .02 (4th ed.
2016).
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No.
75571-4-1/13
instruction, provides,
in
part,
that
“[a]
reasonable
doubt
is
one
for which
a
reason
exists
and may
arise
from
the evidence
or
lack
of
evidence.”
Yusuf
argues that
prosecutorial misconduct deprived
him
of
a
fair
trial
when the
prosecutor
told
the
jury
that
it
was
“only
to
consider the evidence that has been
submitted and
has been
admitted.”
Here,
the prosecutor’s remark
was
proper. 	Contrary
to Yusuf’s claim,
it
did
not
misstate
or
alter the State’s burden
to
prove Yusuf
guilty
beyond a
reasonable
doubt.
Arguing
that the
jury
is
“only
to
consider the evidence that has been
submitted and
has
been
admitted”
is
proper.
	It
is
a
correct
statement
of
the
law
and was consistent
with
jury
instructions
I
and
3A.
Sentencing
Yusuf claims
finally
that the
trial
court
abused
its
discretion
by
not counting
his
prior
convictions for
assault
and
harassment as
the
same
criminal
conduct
for
purposes
of
sentencing. 	Because
the
trial
court
followed
the
law,
there was
no
abuse
of
discretion.
For
the 2013 armed robbery
of Blue
Cable Wireless, Yusuf pleaded
guilty to
assault
in
the
third
degree
(count
I)
and felony
harassment
of
Fitachew Kareta (count
II).
Kareta, a clerk who
was
working
when Yusuf robbed the store,
told
police that Yusuf
threw a bag at
him,
demanded that he put money and
cell
phones
in
it,
started counting
down, and said
“I
will
shoot
you.” Yusuf admitted that he “caused
with criminal
negligence
bodily harm accompanied
by
substantial pain that
did
extend for a period
sufficient to
cause considerable suffering to Fitachew Kareta” and that he “threatened to
cause
bodily injury by threatening to
kill
Fitachew Kareta and [another store clerk].”
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No. 75571-4-1/14
The sentencing court in this case found that these convictions were not the same
criminal conduct.
“Whenever a person is to be sentenced for two or more current offenses, the
sentence range for each current offense shall be determined by using all other current
and prior convictions as if they were prior convictions for the purpose of the offender
score” unless they involve the “same criminal conduct.” 	RCW 9.94A.589(1)(a). 	The
sentencing court must determine whether prior felony convictions that resulted in
concurrent sentences are the same criminal conduct using the “same criminal conduct
analysis” set out in RCW 9.94A.525(5)(a)(i). 	RCW 9.94A.589(1)(a). 	Crimes constitute
the same criminal 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 these elements are met, the crimes are not the same criminal conduct. 	State v.
Chenoweth, 185 Wn.2d 218, 220, 370 P.3d 6 (2016). 	A sentencing court’s
determination of same criminal conduct will not be disturbed on appeal unless the court
abused its discretion or misapplied the law. 	Chenoweth, 185 Wn.2d at 220-21.
Yusuf and the State agree that Yusuf committed the two offenses, felony
harassment and assault in the third degree, at the same time and place and against the
same victim. 	Whether the offenses constitute the same criminal conduct, then, turns on
whether they “require the same criminal intent.” 	RCW 9.94A.589(1)(a). 	To determine
whether the offenses have the same intent, courts look to the offenses’ statutory intent.
Chenoweth, 185 Wn.2d at 223.
Here, under our Supreme Court’s analysis in Chenoweth, the offenses do not
involve the same statutory intent. 	Chenoweth, 185 Wn.2d at 223 (focusing on statutory
—14-

No. 75571-4-1/15
criminal elements to determine whether two crimes constitute the same criminal
conduct). 	Third degree assault requires an intent to, with criminal negligence, cause
bodily harm accompanied by substantial pain. 	RCW 9A.36.031(1)(f). 	Criminal
negligence means the failure to be “aware of a substantial risk that a wrongful act may
occur.” 	RCW 9A.08.01 0(1 )(d). 	Felony harassment requires the intent to knowingly
threaten to kill someone. 	RCW 9A.46.020(1)(a)(i), (2)(b)(ii). 	Because the statutory
intents are different, the offenses are not the same criminal conduct. 	The trial court did
not abuse its discretion or misapply the law.
Affirmed.
WE CONCUR:
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State v. YusefYusuf, No. 75571-4-I
Spearman, J. (concurring) I agree that Yusuf s judgment and sentence should be
affirmed. I write separately because, in determining whether Yusuf’s convictions
constitute the same criminal conduct for sentencing purposes, I would apply the test set
out in State v. Dunaway, 109 Wn.2d 207, 743 P.2d 1237 (1987).
For sentencing purposes, two or more criminal offenses count as one crime if the
offenses encompass the “same criminal conduct.” RCW 9.94A.589(1)(a). To conclude
that multiple offenses encompass the same criminal conduct, the court must find that
the offenses were committed at the same time and place, involved the same victim, and
shared the same criminal intent. Id. The defendant has the burden to convince the court
that this is so. State v. Graciano, 176 Wn.2d 531, 540, 295 P.3d 219 (2013). We review
the trial court’s decision for abuse of discretion. ki at 536.
The elements of same criminal conduct were first set out in Dunaway, 109 Wn.2d
207. See State v. Lewis, 115 Wn.2d 294, 302, 797 P.2d 1141(1990) (stating that the
Dunaway test was codified as former RCW 9.94A.400(1)(a) (1987) (recodified as RCW
9.94A.589 by Laws of 2001, ch. 10, § 6)); State v. Lessley, 118 Wn.2d 773, 777-78, 827
P.2d 996 (1992) (Dunaway test “entirely consistent” with the statute as amended). As to
the intent element, Dunaway instructs the sentencing court to “focus on the extent to
which the criminal intent, as objectively viewed, changed from one crime to the next
part of this analysis will often include the related issues of whether one crime furthered
the other. . . .“ Dunaway, 109 Wn.2d at 215.
This test has been applied consistently to same criminal conduct claims involving
(1) multiple counts of the same offense; (2) similar offenses; and (3) distinct offenses

State v. YusefYusuf, No. 75571-4-1/2 (Spearman, J., concurring)
committed in a series. See State v. Haddock, 141 Wn.2d 103, 113, 3 P.3d 733 (2000)
(where the defendant was convicted of possession of stolen property and possession of
stolen firearms and defendant obtained possession of all of the stolen items in a single
burglary the defendant’s criminal intent to possess stolen property “objectively viewed,
did not change from one crime to the next”); State v. Tili, 139 Wn.2d 107, 124, 985
P.2d 365 (1999) (three counts of rape shared the same criminal intent when the acts
were committed in a continuous series within an extremely short period of time and
defendant’s “criminal intent, objectively viewed, did not change from one penetration to
the next”); State v. Garza-Villarreal, 123 Wn.2d 42, 49, 864 P.2d 1378 (1993)
(possession with intent to deliver more than one controlled substance, without more,
does not evidence separate criminal intents because “[t]he possession of each drug
furthered the overall criminal objective of delivering controlled substances in the future”);
Lessley, 118 Wn.2d 773 (rejecting the argument that the defendant’s convictions for
burglary and kidnapping were the same criminal conduct because the objective intent of
the burglary was completed when the defendant broke into the home armed with a
deadly weapon and assaulted the residents; a separate criminal intent was evidenced
when the defendant moved from the burglary to kidnapping); State v. Burns, 114 Wn.2d
314, 318-20, 788 P.2d 531 (1990) (separate criminal intents exist where defendant
possessed cocaine, delivered a portion of it, and retained a portion with intent to deliver
it in the future; the criminal objective of each crime was realized independently of the
other); Lewis, 115 Wn.2d at 302-03 (four counts of delivery of a controlled substance
occurring on different dates did not share the same criminal intent because the
2

State v. YusefYusuf, No. 75571-4-1/3 (Spearman, J., concurring)
defendant “formed a separate objective intent to execute each act” and the crimes were
not part of a recognizable common scheme or plan).
In addition, our Supreme Court has been clear that in applying the Dunaway test,
the statutory intent element is not dispositive. In re Con nick, 144 Wn.2d 442, 459-60, 28
P.3d 729 (2001); Haddock, 141 Wn.2d at 112-13. “[C]ounts with identical mental
elements, if committed for different purposes, would not be considered the ‘same
criminal conduct.” Id. at 113. 	And conversely, as the Connick court noted, two crimes
that do not by statute require the same criminal intent may nonetheless share the same
objective criminal intent under specific facts. Connick at 459-60. Accordingly, whether
considering multiple counts of the same offense, related offenses, or distinct offenses
committed in a series, the reviewing court considered the facts of the crimes to
determine whether a defendant’s “criminal intent, as objectively viewed, changed from
one crime to the next.” Dunaway, 109 Wn.2d at 215.
The issue in Chenoweth was whether rape of a child in the third degree and
incest in the first degree encompassed the same criminal conduct. State v. Chenoweth,
185 Wn.2d 218, 370 P.3d 6 (2016). Unlike the offenses analyzed in previous cases,
these crimes are unique because they are based on a single act: sexual intercourse
with a child. As the Chenoweth court noted, legislative history supports the conclusion
that the legislature intended to punish rape of a child and incest as separate crimes,
even when they are committed through a single act. Id. at 224 (citing State v. CalIe, 125
Wn.2d 769, 780, 888 P.2d 155 (1995)). Because these two distinct crimes were
committed through a single act, the Dunaway test was not useful: the single act
necessarily occurred at one time and place, with the same victim, and with the same
3

State v. YusefYusuf, No. 75571-4-1/4 (Spearman, J., concurring)
objective intent, to have intercourse with the victim. Thus, to determine whether the
offenses should be treated as one crime or two for sentencing purposes, the
Chenoweth court looked to the statutory intent element. 	at 223-24. The court held
that, because the offenses had different statutory intents, they were not the same
criminal conduct for sentencing purposes.
Notably, however, Chenoweth did not overrule the previous line of case law
applying the Dunaway test. Chenoweth thus applies in the circumstances of that case:
where a single act constitutes a violation of two separate criminal statutes, and the
legislature has indicated its intent to punish the crimes separately, the crimes are not
the same criminal conduct for sentencing purposes. In all other cases, I would apply the
Dunaway test in determining whether the offenses encompass the same criminal
conduct.
The question in this case is whether Yusuf’s convictions for third degree assault
and felony harassment shared the same criminal intent. Relying on Chenoweth, the
majority looks to the statutory intent element of the two statutes. I would apply Dunaway
and consider whether Yusuf met his burden of showing that his offenses shared the
same objective criminal intent.
The record contains few facts. Yusuf entered a guilty plea in which he stated that
he caused with “criminal negligence bodily harm accompanied by substantial pain that
did extend for a period sufficient to cause considerable suffering to Fitachew Kareta.”
Clerk’s Papers at 272. The plea also states that Yusuf “threatened to cause bodily injury
by threatening to kill” Kareta and another victim. ki.
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State v. YusefYusuf, No. 75571-4-1/5 (Spearman, J., concurring)
Yusuf argued below that his convictions for assault and harassment were both
committed with the intent to commit a robbery. But he failed to point out any evidence to
support the assertion. Yusuf stated “We don’t know exactly what it is that caused the
bodily harm or exactly what the assault was.” Verbatim Report of Proceedings at 482.
Yusuf asked the court to infer from the statement of probable cause that both the
assault and the harassment convictions were based on pointing a gun at Kareta. j4.
Yusuf fails to establish any facts relating to the circumstances of his convictions.
While a person charged with assault and harassment may have committed both crimes
with one criminal intent, Yusuf relied on no facts in the record to demonstrate that this
was the case here. See Connick, 144 Wn.2d at 459-60 (holding that, where a defendant
fails to establish the facts underlying his convictions, he cannot establish that the
offenses encompass the same criminal conduct).
Because Yusuf did not show that his offenses shared the same criminal intent,
the trial court did not abuse its discretion in declining to count Yusuf’s offenses as the
same criminal conduct. Accordingly, although I disagree with the majority’s failure to
apply Dunaway, I concur in the result.
5