State v. Chesnokov, 305 P.3d 1103

On Feb 21, 2011, Chesnokov and an accomplice entered an AT&T store wearing bandanas; Chesnokov brandished a BB gun that looked like a real firearm and pointed it at employees. They took two phones and a tablet and fled.
Chesnokov was charged with first degree robbery (elevation alleged based on displaying what appeared to be a firearm) and three counts of second degree assault (victims: Venneti, Dickey, and Suarez). He was convicted on all counts.
At trial the jury was instructed that robbery could be elevated if the defendant displayed what appeared to be a firearm; assault required that the defendant assaulted another "with a deadly weapon."
Chesnokov moved postconviction to merge the assault convictions into the robbery conviction under the merger doctrine; the trial court denied the motion.
On appeal, Chesnokov argued the assaults on Venneti and Dickey merged into the first degree robbery because the assaults were the conduct that elevated the robbery; the State argued none of the assaults merged (Suarez not a robbery victim; the BB gun might not be a deadly weapon so assault was not necessary to elevate robbery).

Issue	Chesnokov's Argument	State's Argument	Held
Whether second degree assault(s) merge into first degree robbery under the merger doctrine	Assaults on Venneti and Dickey merge because the assaultive conduct (pointing the BB gun) was necessary to elevate robbery to first degree	No merger: Suarez was not a robbery victim; and the robber y could be elevated by display of what appeared to be a firearm even if the BB gun was not a "deadly weapon," so assault was not necessary	Merger doctrine applies: at least one assault conviction merged into the robbery conviction because assault with a weapon was the conduct that elevated robbery to first degree
Whether both assault convictions (Venneti and Dickey) must be vacated	Both convictions should be vacated because it is ambiguous which assault elevated the robbery	Only one assault conviction needs vacating because only one assault was necessary to elevate the robbery; vacating both would be improper	Only one assault conviction vacated; the other stands and the case is remanded for resentencing

State v. Freeman, 153 Wn.2d 765 (Wash. 2005) (explains merger doctrine application where assaultive conduct elevates robbery and when convictions may still be punished separately)
State v. Kier, 164 Wn.2d 798 (Wash. 2008) (holds assault with a deadly weapon merges into first degree robbery when that assaultive conduct is what elevates robbery)
State v. Michielli, 132 Wn.2d 229 (Wash. 1997) (multiple charges from same conduct may be brought; provides context on joinder)
State v. Vladovic, 99 Wn.2d 413 (Wash. 1983) (discusses when proof of one crime requires proof of another offense)
State v. Hughes, 166 Wn.2d 675 (Wash. 2009) (vacating the lesser offense is the usual remedy for double jeopardy violations)
State v. Parmelee, 108 Wn. App. 702 (Wash. Ct. App. 2001) (notes merger doctrine operates at sentencing to remedy double jeopardy concerns)