State Of Washington v. Dougnyl Akeang, 48320-3

Shortly after midnight on Jan. 3, 2015, security footage and store employee reports showed Akeang and others stealing liquor from Safeway; ~20 minutes later police stopped a van in which Akeang was driving. A passenger admitted they had stolen liquor from Safeway and Akeang pointed to bottles under the back seat. Officers later found a 9mm handgun under the driver’s seat.
Akeang was initially charged in superior court with unlawful possession of a firearm and unlawful possession of a stolen vehicle; a motion in limine excluded evidence of the Safeway theft at the first trial.
The jury in the first trial deadlocked on both superior-court charges and a mistrial was declared. Immediately after the mistrial, the State amended the information, dropping the stolen-vehicle charge and adding a third degree theft charge arising from the Safeway incident (which had been filed in municipal court).
At the second trial, prior testimony (and additional testimony) about the Safeway theft was admitted; the jury convicted Akeang of third degree theft and acquitted him of unlawful possession of a firearm.
On appeal Akeang argued the third degree theft should have been dismissed under the mandatory-joinder rule (CrR 4.3.1) because it was a related offense to the superior-court charges and that his trial counsel was ineffective for not moving to dismiss on that ground.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the third-degree theft charge was subject to mandatory joinder under CrR 4.3.1	State: joinder not mandatory because theft was not tried previously in superior court and prosecutor lacked facts to try it earlier	Akeang: theft was a "related offense" based on same conduct and should have been dismissed after mistrial	Joinder was not mandatory—offenses did not arise from a single criminal episode; dismissal under CrR 4.3.1 was not required
Whether Akeang received ineffective assistance because counsel objected but did not move to dismiss the theft charge	State: counsel’s performance was reasonable because a joinder motion would have failed	Akeang: counsel was deficient for failing to move to dismiss, causing prejudice	No ineffective assistance: moving would have been futile given joinder not mandatory, so no deficient performance or prejudice

State v. Kindsvogel, 149 Wn.2d 477 (Washington 2003) (joinder/related-offense principles)
State v. Lee, 132 Wn.2d 498 (Washington 1997) (defines "same conduct" as single criminal incident or episode)
Strickland v. Washington, 466 U.S. 668 (U.S. 1984) (two-part standard for ineffective assistance of counsel)
State v. Dixon, 42 Wn. App. 315 (Wash. Ct. App. 1985) (notice requirement for waiver of joinder)
State v. Haddock, 141 Wn.2d 103 (Washington 2000) (victim identity relevant to related-offense analysis)
State v. Grier, 171 Wn.2d 17 (Washington 2011) (objective standard and presumption of reasonableness for counsel performance)