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Court of Appeals Division III
State of Washington

Opinion Information Sheet

			

                                                                FILED

                                                           JUNE 12, 2012

                                                     In the Office of the Clerk of Court
                                                  WA State Court of Appeals, Division III

          IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                                     DIVISION THREE

STATE OF WASHINGTON,                                      No.  29883-3-III
                                                )
                             Respondent,        )
                                                )
         v.                                     )
                                                )         UNPUBLISHED OPINION
KOUY GUY CHHONG,                                )
                                                )
                             Appellant.         )
                                                )

       Korsmo, C.J.  --  Kuoy Guy Chhong challenges the trial court's refusal to merge 

two of his five felony convictions and also presents several pro se contentions.  There 

was no error.  The convictions are affirmed.

                                            FACTS

       Mr. Chhong was a passenger in a car stopped for speeding.  A backpack at his feet 

contained a stolen handgun, marijuana, psychedelic mushrooms, $3,200 cash, scales, and 

other paraphernalia associated with drug usage or distribution.  He admitted ownership of 

the backpack.   

No. 29883-3-III
State v. Chhong

       A jury ultimately concluded that Mr. Chhong was guilty on five felony counts: (1) 

possession of a stolen firearm, (2) possession of marijuana with intent to deliver,

(3) possession of psilocin with intent to deliver, (4) possession of more than 40 grams of 

marijuana, and (5) possession of psychedelic mushrooms.  The jury also found that 

counts two and three were committed while armed with a firearm.

       At sentencing, the trial court merged count five into count three.  The court also 

declined to merge count four into count two.  The court then imposed four concurrent 

terms of confinement, the two largest of which were for 54 months.  Mr. Chhong then 

timely appealed to this court.  

                                         ANALYSIS

       Counsel argues that the trial court erred in its merger decision concerning the two 

marijuana charges.  Pro se, Mr. Chhong presents three claims in his Statement of 

Additional Grounds (SAG).  We first will address the merger argument before turning to 

Mr. Chhong's pro se arguments.

       Merger. Appellant argues that count four should merge with count two because it 

elevated the offense in count two.  It did not.

       Whether or not multiple punishments are permitted for the same criminal act is 

largely a question of legislative intent.  State v. Calle, 125 Wn.2d 769, 776, 888 P.2d 155 

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No. 29883-3-III
State v. Chhong

(1995).  Courts apply the test of Blockburger v. United States, 284 U.S. 299, 52 S. Ct. 

180, 76 L. Ed. 306 (1932), to determine whether or not multiple punishments are 

authorized.  That test determines whether two crimes are the same offense by seeing if 

each crime requires proof of elements not found in the other offense.  Blockburger, 284 

U.S. at 304.  In effect, then, the Blockburger test prohibits multiple convictions when one 

crime is a lesser offense of the greater crime.  In addition to comparing elements of the 

offenses, Washington courts also look at whether the evidence proving one crime also 

proved the second crime.  In re Pers. Restraint of Orange, 152 Wn.2d 795, 820-21, 100 

P.3d 291 (2004). 

       In the context of overlapping criminal behavior that violates more than one statute, 

this state also recognizes that offenses will merge when one crime elevates the degree of 

another and there is no independent criminal purpose to the multiple offenses.  State v. 

Freeman, 153 Wn.2d 765, 772-73, 108 P.3d 753 (2005). 

       Appellant properly recognizes that the two offenses have different elements.  

Count two required proof of possession of some amount of marijuana and proof of intent 

to distribute the substance.  RCW 69.50.401(1).  Count four required proof of possession 

of marijuana in excess of 40 grams.  RCW 69.50.4013.  In light of these differences, the 

two crimes are not the same under the Blockburger analysis.  Accordingly, appellant's 

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No. 29883-3-III
State v. Chhong

sole argument is that the felony marijuana possession offense elevated the delivery 

offense.  It did not.

       Initially, we note that the crime of delivery of a controlled substance does not have 

multiple degrees.  There is only one crime of delivery of a controlled substance.  On this 

basis alone, appellant's "elevation" argument fails.  It also fails on the behavioral level.  

A person commits the crime of delivery of a controlled substance when she or he delivers 

any amount of a controlled substance.  RCW 69.50.401(1); State v. Jones, 25 Wn. App. 

746, 749, 610 P.2d 934 (1980).  A person commits felony level possession of marijuana 

by possessing more than 40 grams of the substance.  RCW 69.40.4013; Jones, 25 Wn. 

App. at 749.  The quantity of marijuana does not elevate or in any other manner change 

the delivery offense.  

       Merger does apply when one crime is a constituent element of a greater offense.  

An example is found in the robbery and assault statutes, the subject of the analysis in 

Freeman.  There, one of the defendants had been convicted of both first degree robbery

and second degree assault after an incident where he injured a woman with a punch prior 

to taking property from her.  153 Wn.2d at 770.  Since the infliction of injuries was 

necessary to constitute a first degree robbery instead of a second degree robbery, the 

assaultive conduct elevated the crime.  Therefore the crimes merged.  Id. at 778.

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No. 29883-3-III
State v. Chhong

       Other divisions of this court previously have rejected arguments similar to what 

appellant raises here.  State v. Moore, 54 Wn. App. 211, 219-20, 773 P.2d 96 (1989); 
Jones, 25 Wn. App. at 749-50.1  Jones involved delivery of marijuana and possession of 

marijuana in excess of 40 grams.  25 Wn. App. at 748.  The court concluded, solely on 

the basis of the same evidence test that the two offenses were not the same.  Id. at 749-50.  

In Moore, the appellant argued that felony possession merged into his conviction for 

manufacturing marijuana.  Relying upon Jones, the Moore court rejected the argument on 

the basis that no specific quantity was necessary to support a manufacturing conviction.  

54 Wn. App. at 219-20.  

       Similar to Moore, there is no merger here because the felony possession charge 

simply did not elevate or otherwise alter the delivery count in any manner.  The 

possession offense was unnecessary to prove any aspect of the delivery count.  The trial 

court correctly determined that the two offenses do not merge.

       SAG Issues.  Mr. Chhong raises three claims, which we will summarily address.  

His first claim is that the evidence was insufficient to prove his possession of the 

backpack.  We are required to view the evidence in a light most favorable to the State and 

       1 However, misdemeanor possession of less than 40 grams of marijuana does 
merge into a delivery of marijuana conviction.  State v. Rhodes, 18 Wn. App. 191, 567 
P.2d 249 (1977).

                                               5 

No. 29883-3-III
State v. Chhong

determine whether there was evidence from which the jury could find each element of the 

offense was proved.  State v. Green, 94 Wn.2d 216, 221-22, 616 P.2d 628 (1980).  In 

light of Mr. Chhong's admission to ownership of the backpack seated at his feet, the 

evidence was sufficient.

       Mr. Chhong next argues that the jury instructions concerning the firearm 

enhancements improperly required unanimity.  This court has already determined that this 

issue cannot be raised initially on appeal.  State v. Nunez, 160 Wn. App. 150, 165, 248 

P.3d 103, review granted, 172 Wn.2d 1004 (2011).  Mr. Chhong does not demonstrate 

that the defense objected to this instruction at trial. The issue therefore is without merit.

       Finally, the SAG contends that trial counsel performed ineffectively by not 

interviewing a witness.  To prevail on this claim, Mr. Chhong must demonstrate that his 

counsel failed to perform to the standards of the profession and that the error rendered the 

verdicts unreliable.  In addition, he must overcome a presumption of effectiveness; trial 

tactics and strategy cannot be the basis for establishing error.  Strickland v. Washington, 

466 U.S. 668, 689-92, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). 

       The decision to interview a witness is a classic strategy decision.  State v. Piche, 

71 Wn.2d 583, 590, 430 P.2d 522 (1967).  Thus, Mr. Chhong cannot show that counsel 

erred.  In addition, there is nothing in the record that explains what the witness would 

                                               6 

No. 29883-3-III
State v. Chhong

have testified about.  Accordingly, there is no way of assessing whether the failure to call 

the witness was harmful or not.

       The SAG does not provide any basis for relief.

       Affirmed.

       A majority of the panel has determined 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.

                                                    _________________________________
                                                                  Korsmo, C.J.

WE CONCUR:

______________________________
       Brown, J.

______________________________
       Siddoway, J.

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