State Of Washington, Respondent V. Binyam B. Yemru, Appellant

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON,
Respondent,
BINYAM B. YEMRU,
Appellant.
DIVISION ONE
No. 69767-6-1
UNPUBLISHED OPINION
FILED: 	May 19, 2014
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Dwyer, J. — Binyam Yemru was convicted by a jury of robbery in the first
degree (count I), assault in the second degree (count II), robbery in the first
degree (count III), theft of a motor vehicle (count IV), and felony harassment
(count V). 	Paige Knight was the victim in count I. 	John Mbugua was the victim in
count V. 	Michael Nordstrom was the victim in counts II, III, and IV. 	On appeal,
Yemru does not challenge the convictions on counts I, III, or V. 	As to counts II
and IV, Yemru contends that principles of double jeopardy require the dismissal
of the assault in the second degree charge and the theft of a motor vehicle
charge. We agree as to count II and disagree as to count IV. 	Accordingly, we
order that the assault charge be dismissed on remand. 	We affirm the other
convictions.
I
The facts relative to the issues on appeal are these. When Michael
Nordstrom approached his automobile, he noticed Yemru carrying what
appeared to be a samurai sword. As Nordstrom was getting into his car, he

No. 69767-6-1/2
heard Yemru call out "hey." Once in the car, Nordstrom rolled down the
passenger window to hear what Yemru had to say. Yemru asked if he could
have a ride. 	Nordstrom refused Yemru's request. 	Yemru then pushed a pistol
through the passenger window and pointed it at Nordstrom. 	Nordstrom
attempted to raise the passenger window, but a safety feature caused the
window to descend each time it hit the gun. 	Nordstrom realized that the gun was
fake because it sounded like plastic each time it came into contact with the
passenger window.
Unfortunately for Nordstrom, the passenger door was unlocked, allowing
Yemru to enter the car. 	At the same time, Nordstrom opened his driver's door to
give himself an escape route. 	Yemru pointed the gun at Nordstrom and told him
to drive. Nordstrom refused, telling Yemru that he knew the gun was fake.
Yemru then pulled out the sword, asked if it was fake, and poked it toward
Nordstrom. When Nordstrom tried to deflect the sword, he realized that it was
real and quickly got out of the car, grabbing his backpack as he did so, but
leaving his keys in the ignition. Yemru drove away in the car.
Yemru was arrested and charged with five felony counts: two counts of
robbery in the first degree, one count of assault in the second degree, one count
theft of a motor vehicle and one count of felony harassment. A jury found Yemru
guilty on all five counts. 	Yemru appeals only the convictions for second degree
assault and theft of a motor vehicle. 	He contends that coupling these convictions
with the conviction for robbing Nordstrom violates the prohibition against double
jeopardy.
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No. 69767-6-1/3
Yemru first assigns error to the trial court's decision to enter judgment on
the jury's verdict finding him guilty on count II, assault in the second degree, and
imposing sentence thereon. 	The court erred in so doing, Yemru asserts,
because the double jeopardy merger doctrine required the court to rule that the
assault count merged into the robbery in the first degree count. 	Citing State v.
Kier, 164 Wn.2d 798, 194 P.3d 212 (2008), the State concedes error. 	We accept
the concession and reverse the assault conviction with instructions to the trial
court to dismiss count II upon remand.
Ill
Yemru next contends that double jeopardy or merger principles required
the trial court to dismiss the theft of a motor vehicle charge in favor of entering
judgment on the robbery in the first degree charge. The State contests this
allegation.
"The double jeopardy clause in Const, art. I, § 9 is given the same
interpretation the Supreme Court gives to the double jeopardy clause in the Fifth
Amendment." State v. Gocken, 127 Wn.2d 95, 109, 896 P.2d 1267 (1995). 	"The
double jeopardy clauses of the Fifth Amendment and Const, art. I, § 9 protect a
defendant against multiple punishments for the same offense." State v. Calle,
125 Wn.2d 769, 772, 888 P.2d 155 (1995).
[T]he question whether punishments imposed by a court, following
conviction upon criminal charges, are unconstitutionally multiple
cannot be resolved without determining what punishments the
legislative branch has authorized. Whalenf v. United States, 445
U.S. 684,] 688, [100 S. Ct. 1432, 63 L. Ed. 2d 715 (1980)]. 	Our

No. 69767-6-1/4
review here is limited to assuring that the court did not exceed its
legislative authority by imposing multiple punishments for the same
offense.
CaNe. 125Wn.2dat776.
Here, Yemru contends that he is exposed to multiple punishments
as a result of having the convictions for robbery in the first degree (of
Nordstrom) and theft of a motor vehicle (Nordstrom's automobile) reduced
to judgment with sentences for each imposed upon Yemru.
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), we reiterated 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
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No. 69767-6-1/5
same bad act separately 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 Blockburqer test. 	See Calle, 125 Wn.2d at 777-78; 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
yj Vladovic. 99 Wn.2d [413,] 419[, 662 P.2d 853 (1983)].
Finally, even if on an abstract level two convictions appear to
be for the same offense or for charges that would merge, if there is
an independent purpose or effect to each, they may be punished as
separate offenses. 	State v. Frohs, 83 Wn. App. 803, 807, 924 P.2d
384 (1996) (citing State v. Johnson, 92 Wn.2d 671, 680, 600 P.2d
1249(1979))."
Esparza, 135 Wn. App. at 59-61 (alterations in original) (quoting Freeman, 153
Wn.2d at 771-73).

No. 69767-6-1/6
To properly analyze a double jeopardy claim, we must also keep aware of
that which is not a proper analysis. 	In 1990, the United States Supreme Court
ruled that a double jeopardy analysis must consist of two parts: the Blockburger
test and a "same conduct" test. 	Gocken, 127 Wn.2d at 101. 	In Gradv v. Corbin,
495 U.S. 508, 521, 110 S. Ct. 2084, 109 L. Ed. 2d 548 (1990), the Supreme
Court held:
[T]he Double Jeopardy Clause bars any subsequent prosecution in
which the government, to establish an essential element of an
offense charged in that prosecution, will prove conduct that
constitutes an offense for which the defendant has already been
prosecuted.
"The 'same conduct' test announced in Gradv was overruled three years
later in rUnited States v.l Dixonf. 509 U.S. 688, 113 S. Ct. 2849, 125 L. Ed. 2d
556 (1993)]." Gocken, 127 Wn.2d at 101. Thus, the "same conduct" test applies
to neither a Fifth Amendment nor an article I, § 9 double jeopardy analysis.
Gocken, 127 Wn.2d at 107.
The legislature created the crime of theft ofa motor vehicle,1 codified as
RCW 9A.56.065, in 2007. 	There is an extensive statement of legislative intent.
(1) The legislature finds that:
(a) Automobiles are an essential part of our everyday lives.
The west coast is the only region of the United States with an
increase of over three percent in motor vehicle thefts over the last
several years. The family car is a priority of most individuals and
families. 	The family car is typically the second largest investment a
person has next to the home, so when a car is stolen, it causes a
significant loss and inconvenience to people, imposes financial
hardship, and negatively impacts their work, school, and personal
1 "(1) A person is guilty of theft ofa motor vehicle if he or she commits theft ofa motor
vehicle.
(2) Theft of a motor vehicle is a class B felony."

No. 69767-6-1/7
activities. 	Appropriate and meaningful penalties that are
proportionate to the crime committed must be imposed on those
who steal motor vehicles;
(b) In Washington, more than one car is stolen every eleven
minutes, one hundred thirty-eight cars are stolen every day,
someone's car has a one in one hundred seventy-nine chance of
being stolen, and more vehicles were stolen in 2005 than in any
other previous year. 	Since 1994, auto theft has increased over
fifty-five percent, while other property crimes like burglary are on
the decline or holding steady. 	The national crime insurance bureau
reports that Seattle and Tacoma ranked in the top ten places for the
most auto thefts, ninth and tenth respectively, in 2004. In 2005,
over fifty thousand auto thefts were reported costing Washington
citizens more than three hundred twenty-five million dollars in
higher insurance rates and lost vehicles. Nearly eighty percent of
these crimes occurred in the central Puget Sound region consisting
of the heavily populated areas of King, Pierce, and Snohomish
counties;
(c) Law enforcement has determined that auto theft, along
with all the grief it causes the immediate victims, is linked more and
more to offenders engaged in other crimes. 	Many stolen vehicles
are used by criminals involved in such crimes as robbery, burglary,
and assault. In addition, many people who are stopped in stolen
vehicles are found to possess the personal identification of other
persons, or to possess methamphetamine, precursors to
methamphetamine, or equipment used to cook methamphetamine;
(d) Juveniles account for over half of the reported auto thefts
with many of these thefts being their first criminal offense. It is
critical that they, along with first time adult offenders, are
appropriately punished for their crimes. 	However, it is also
important that first time offenders who qualify receive appropriate
counseling treatment for associated problems that may have
contributed to the commission of the crime, such as drugs, alcohol,
and anger management; and
(e) A coordinated and concentrated enforcement mechanism
is critical to an effective statewide offensive against motor vehicle
theft. Such a system provides for better communications between
and among law enforcement agencies, more efficient
implementation of efforts to discover, track, and arrest auto thieves,
quicker recovery, and the return of stolen vehicles, saving millions
of dollars in potential loss to victims and their insurers.
(2) It is the intent of this act to deter motor vehicle theft
through a statewide cooperative effort by combating motor vehicle
theft through tough laws, supporting law enforcement activities,
improving enforcement and administration, effective prosecution,
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No. 69767-6-1/8
public awareness, and meaningful treatment for first time offenders
where appropriate. 	It is also the intent of the legislature to ensure
that adequate funding is provided to implement this act in order for
real, observable reductions in the number of auto thefts in
Washington state.
Laws of 2007, ch. 199, §1.
We turn now to the first step of the Freeman analysis: the search for
explicit legislative intent. 	"Again, ifthe statutes explicitly authorize separate
punishments, then separate convictions do not offend double jeopardy."
Freeman. 153 Wn.2d at 773. 	"Evidence of legislative intent may be clear on the
face of the statute, found in the legislative history, the structure of the statutes,
the fact the two statutes are directed at eliminating different evils, or any other
source of legislative intent." 	Freeman, 153 Wn.2d at 773 (citing Ball v. United
States. 470 U.S. 856, 864, 105 S. Ct. 1668, 84 L. Ed. 2d 740 (1985); Calle, 125
Wn.2d at 777-78).
The robbery in the first degree statutes2 and the theft of a motor vehicle
2A person commits robbery when he or she unlawfully takes personal property
from the person of another or in his or her presence against his or her will by the
use or threatened use of immediate force, violence, or fear of injury to that
person or his or her property or the person or property of anyone. Such force or
fear must be used to obtain or retain possession of the property, or to prevent or
overcome resistance to the taking; in either of which cases the degree of force is
immaterial. Such taking constitutes robbery whenever it appears that, although
the taking was fully completed withoutthe knowledge of the person from whom
taken, such knowledge was prevented by the use of force or fear.
RCW9A.56.190.
(1) A person is guilty of robbery in the first degree if:
(a) In the commission of a robbery or of immediate flight therefrom, he or
she:
(i) Is armed with a deadly weapon; or
(ii) Displays what appears to be a firearm or other deadly weapon; or
(Hi) Inflicts bodily injury; or
(b) He or she commits a robbery within and against a financial institution
as defined in RCW 7.88.010 or 35.38.060.
(2) Robbery in the first degree is a class A felony.
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No. 69767-6-1/9
statute do not explicitly approve the imposition of multiple punishments.
However, the legislature's decision to create a separate crime of theft of a motor
vehicle, its decision to assign the crime the level of a class B felony, and its
statement of purpose in doing so, all support a conclusion that the legislature
desired that theft of a motor vehicle be treated differently, and more severely,
than thefts involving other chattel of equal value. 	Thefts of property are
otherwise generally categorized pursuant to the value of the chattel taken.3 Theft
RCW 9A.56.200.
(1) "Theft" means:
(a) To wrongfully obtain or exert unauthorized control over the property
or services of another or the value thereof, with intent to deprive him or her of
such property or services; or
(b) By color or aid of deception to obtain control over the property or
services of another or the value thereof, with intent to deprive him or her of such
property or services; or
(c) To appropriate lost or misdelivered property or services of another, or
the value thereof, with intent to deprive him or her of such property or services.
(2) In any prosecution for theft, it shall be a sufficient defense that:
(a) The property or service was appropriated openly and avowedly under
a claim of title made in good faith, even though the claim be untenable; or
(b) The property was merchandise pallets that were received by a pallet
recycler or repairer in the ordinary course of its business.
RCW 9A.56.020.
3 (1) A person is guilty of theft in the first degree if he or she commits theft of:
(a) Property or services which exceed(s) five thousand dollars in value
other than a firearm as defined in RCW 9.41.010;
(b) Property of any value, other than a firearm as defined in RCW
9.41.010 or a motor vehicle, taken from the person of another;
(c) A search and rescue dog, as defined in RCW 9.91.175, while the
search and rescue dog is on duty; or
(d) Commercial metal property, nonferrous metal property, or private
metal property, as those terms are defined in RCW 19.290.010, and the costs of
the damage to the owner's property exceed five thousand dollars in value.
(2) Theft in the first degree is a class B felony.
RCW 9A.56.030.
(1) A person is guilty of theft in the second degree ifhe or she commits theft of:
(a) Property or services which exceed(s) seven hundred fifty dollars in
value but does not exceed five thousand dollars in value, other than a firearm as
defined in RCW 9.41.010 or a motor vehicle;
(b) A public record, writing, or instrument kept, filed, or deposited
according to law with or in the keeping of any public office or public servant;
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No. 69767-6-1/10
of a motor vehicle, to the contrary, is a class B felony even if the value of the
motor vehicle is less than $5,000. 	Thus, the legislature plainly believes that the
theft of a motor vehicle causes damage to the victim and society of a type more
concerning than is true of the typical theft of a chattel.
Finding no definitive answer to the multiple punishment inquiry at step one
of the Freeman analysis, we now move to step two: the Blockburger "same
evidence" or "same elements" test. 	Freeman, 153 Wn.2d at 772. 	"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." 	Freeman, 153 Wn.2d at 772.
To prove the crime of theft of a motor vehicle, the State was required to
prove that a theft occurred and that the object of the theft was a motor vehicle.
That the property taken is a motor vehicle is not an element of robbery in the first
degree. 	To prove robbery in the first degree, the State was required to prove that
the defendant displayed a deadly weapon, used force or threatened to use force
in order to take the property, and that the taking was from the victim or in his
presence. None of these are elements of theft of a motor vehicle. 	The offenses
(c) Commercial metal property, nonferrous metal property, or private
metal property, as those terms are defined in RCW 19.290.010, and the costs of
the damage to the owner's property exceed seven hundred fifty dollars butdoes
not exceed five thousand dollars in value; or
(d) An access device.
(2) Theft in the second degree is a class C felony.
RCW 9A.56.040.
(1) A person is guilty of theft in the third degree if he or she commits theft of
property or services which (a) does not exceed seven hundred fifty dollars in
value, or (b) includes ten or more merchandise pallets, or ten or more beverage
crates, or a combination often or more merchandise pallets and beverage
crates.
(2) Theft in the third degree is a gross misdemeanor.
RCW 9A.56.050.
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No. 69767-6-1/11
fail the Blockburger test. 	A prohibition on multiple punishments is not indicated.
A refinement of this analytical step advises us that we are not to "consider
the elements of the crime on an abstract level" but, rather, "'[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.'" Freeman, 153
Wn.2d at 772 (first alteration in original) (internal quotation marks omitted)
(quoting Orange. 152 Wn.2d at 817). The parties dispute the meaning of this
passage as applied to the facts of this case.
On the one hand, Yemru asserts that both offenses required proof of the
same fact: that Yemru stole a motor vehicle from Nordstrom. 	On the other hand,
the State asserts that this is really proof of two facts: that Yemru stole an item
(required for robbery in the first degree) and that the item stolen was a motor
vehicle (not required for robbery in the first degree).
The State's argument is consistent with the legislature's intent to view and
treat theft of a motor vehicle differently than the theft of a different chattel of the
same value. The legislature requires proof of a theft of an item to establish
robbery or a generic theft. 	It does not require that the item be a motor vehicle.
But proof of theft of a motor vehicle is required to establish that crime. We
believe the State's analysis to be the correct one.4 Thus, the analysis at this step
does not demonstrate an intent to prohibit multiple punishments.
4 This analysis also makes clear thatwe are not "readopting" the overruled Gradv "same
conduct" test in the guise of a Blockburqer-Orange analysis.
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No. 69767-6-1/12
The next step of the Freeman analysis is to determine whether the merger
doctrine applies.
[T]he merger doctrine is a rule of statutory construction which 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).
Vladovic, 99 Wn.2d at 420-21. 	Here, the robbery charge was elevated to robbery
in the first degree by the acts establishing the assault in the second degree
charge, which we have ordered to be vacated. 	The degree of robbery was not
elevated by the theft of a motor vehicle charge. 	There is no merger of the
robbery in the first degree conviction with the theft of a motor vehicle conviction.
After applying the analyses mandated by Freeman, we conclude that
punishments for both robbery in the first degree and theft of a motor vehicle were
lawfully imposed.
Affirmed in part, reversed in part and remanded.
We concur:
IJWeR^
12