[Nos. 35492-6-II; 35499-3-II; 35502-7-II. Division Two. October 28, 2008.]
Lisa E. Tabbut; Peter B. Tiller (of The Tiller Law Firm); and Mark W. Muenster, for appellants.
Arthur D. Curtis, Prosecuting Attorney, and Michael C. Kinnie, Deputy, for respondent.
Authored by Marywave Van Deren.
Concurring: C. C. Bridgewater, David H. Armstrong.
¶1 VAN DEREN, C.J. -- Daniel Johnson, Jason Balaski, and Michael Odell FACTS I. BACKGROUND ¶2 Adrian Rekdahl, Johnson, Balaski, and Odell planned to unlawfully enter Gerald Newman's house in Vancouver, Washington and steal $ 1.2 million. On August 6, 2005, Rekdahl asked Johnson to meet him at a Portland, Oregon area nightclub. When Johnson arrived, Rekdahl, Balaski, and Odell were already there. The four men discussed "a plan to get some money." Report of Proceedings (RP) at 2586. They left the nightclub, planning to meet at Odell's glass shop after Johnson purchased two sets of two-way radios. ¶3 Johnson armed himself and went to Odell's shop, where he found Balaski and Rekdahl already wearing camouflage clothing. Johnson also changed into camouflage pants and boots. Odell's wife brought his Chevrolet Tahoe to the shop and left on foot. Odell drove them to Newman's house because he had earlier followed Newman home from a bar and knew where he lived. ¶4 Odell stopped the car near Newman's house and Balaski, Johnson, and Rekdahl exited the vehicle. They all carried firearms and wore face masks as they approached Newman's residence from the backyard and walked around the house to the front door. When they entered the house, Newman ran toward them from the kitchen. Rekdahl shot Newman and, then, Johnson subdued Newman by repeatedly hitting him with his pistol. ¶5 Rekdahl and Balaski ran toward the kitchen and backyard. Newman's guests, Laura and Robert Harrington, ¶6 Rekdahl returned to the foyer and began beating Newman with a rifle. Laura heard one of the men looking for her in the shrubbery and feared that he would shoot her. Someone from the front of the house yelled, "Come on, man, we gotta get the fuck outta here." RP at 718. Laura then heard the man retreat back into the house. The men exited through the front door and Odell drove them away in the Tahoe. ¶7 While driving away, Odell asked, "Did you kill him? Did you kill the motherfucker?" Balaski replied, "He's dead," and Odell pumped his fist in the air and said, "Yes." RP at 2598-99. According to Johnson, this was the first time he realized the men planned a murder rather than a burglary to obtain money. ¶8 Newman's neighbor let Laura into his home and called 911. Another neighbor also called 911 and reported that an unfamiliar white Chevrolet Tahoe left the scene shortly after the shooting. And a security guard reported the Tahoe and its license plate number. ¶9 Vancouver Police Sergeant Joseph Graaff found Newman lying in a bedroom with severe wounds to his head and leg. Newman identified the assailants as three black men wearing ski masks and camouflage clothing. Graaff also learned that Robert was dead in the backyard. ¶10 Clark County Deputy Sheriff Todd Young heard the dispatch about the shooting, including the Tahoe's license plate number. He spotted the Tahoe, radioed for backup, followed the Tahoe, and signaled with his lights for the vehicle to pull over. When the four men exited the vehicle, he activated his lights and spotlight, drew his gun, and ordered the men to get down. Three of them did, but Rekdahl fled. ¶11 Police later found Newman's blood on Johnson's clothing and trace gunshot residue on Johnson's and Balaski's hands. Police executed search warrants for the Tahoe, Rekdahl's pickup truck, and various buildings, including Odell's home and shop. II. PROCEDURE ¶12 The State charged Rekdahl, Johnson, Balaski, and Odell with the first degree felony murder of Robert Harrington predicated on first degree burglary (count I), first degree assault of Newman (count II), first degree assault of Laura Harrington (count III), and first degree burglary (count IV). The State alleged firearm enhancements for each count. ¶13 On February 8, 2006, Balaski and Odell waived speedy trial and asked for a continuance. The trial court granted the motion over Johnson's objection. All defendants unsuccessfully challenged Young's detention of the Tahoe and Odell unsuccessfully challenged the search warrants for his home and shop. Johnson, Balaski, and Odell also repeatedly moved to sever their trials, but the trial court denied the motions. ¶14 The jury returned guilty verdicts on all counts and found that the men were armed with firearms. Johnson, Balaski, and Odell appeal. ANALYSIS I. SUFFICIENCY OF RECORD FOR APPELLATE REVIEW [1] ¶15 We first address Johnson's claim that the trial court record is insufficient to allow our review. The record in a criminal case must be "'of sufficient completeness'" for appellate review of potential errors. State v. Larson, 62 Wn.2d 64, 67, 381 P.2d 120 (1963) (emphasis omitted) (internal quotation marks omitted) (quoting Draper v. Washington, 372 U.S. 487, 499, 83 S. Ct. 774, 9 L. Ed. 2d 899 (1963)). But a "'complete verbatim transcript'" is not required. State v. Tilton, 149 Wn.2d 775, 781, 72 P.3d 735 (2003) (quoting Mayer v. City of Chicago, 404 U.S. 189, 194, 92 S. Ct. 410, 30 L. Ed. 2d 372 (1971)). If a reconstructed record fails to recount satisfactorily events material to appellate issues, we must order a new trial. Tilton, 149 Wn.2d at 783. Such is not the case here. [2, 3] ¶16 Here, the trial court used a tape recording system rather than a court reporter. When the speaker strayed too far from a microphone or two people spoke at once, the recording was inaudible or unintelligible to the individual who prepared the written appellate record. Equipment failure caused further problems in recording and playback. These problems resulted in numerous short gaps in the over 3,000 page report of proceedings. ¶17 But we hold that the record is sufficient. It was sufficiently complete to allow three appellate attorneys and Johnson, in his statement of additional grounds for review, II. DENIAL OF MOTIONS TO SEVER TRIALS ¶18 Johnson, Balaski, and Odell argue that the trial court erred when it denied their repeated motions to sever their trials. Specifically, Balaski and Odell claim severance was required because their defenses were mutually antagonistic to Johnson's defense, given that he testified against them. Odell further argues that, regardless of whether their defenses were mutually antagonistic, Johnson's testimony against him required severance. A. Standard of Review [4-9] ¶19 The decision to proceed with joint or separate trials is entrusted to the trial court's sound discretion; we will not disturb the decision absent manifest abuse of discretion. State v. Grisby, 97 Wn.2d 493, 507, 647 P.2d 6 (1982). Washington law disfavors separate trials. Grisby, 97 Wn.2d at 506. The trial court should sever defendants' trials at any point in the trial whenever, "upon consent of the severed defendant, it is deemed necessary to achieve a fair determination of the guilt or innocence of a defendant." CrR 4.4(c)(2)(ii). Trial courts properly grant such severance motions only if a defendant demonstrates that a joint trial would be "so manifestly prejudicial as to outweigh the concern for judicial economy." State v. Hoffman, 116 Wn.2d 51, 74, 804 P.2d 577 (1991). ¶20 A "defendant must be able to point to specific prejudice" to demonstrate that the trial court abused its discretion. Grisby, 97 Wn.2d at 507. "'[A]ntagonistic defenses conflicting to the point of being irreconcilable and mutually exclusive'" may cause specific prejudice. State v. Canedo-Astorga, 79 Wn. App. 518, 528, 903 P.2d 500 (1995) (quoting United States v. Oglesby, 764 F.2d 1273, 1276 (7th Cir. 1985)); see also State v. Jones, 93 Wn. App. 166, 171, 968 P.2d 888 (1998). But mutually antagonistic defenses are not per se prejudicial as a matter of law. Grisby, 97 Wn.2d at 507. B. The Defenses ¶21 Johnson, Balaski, and Odell argue that their defenses were mutually antagonistic. Johnson argued, as his defense, that he understood the plan to involve a burglary at Newman's house, not a murder. Balaski asserted an alibi defense. Lastly, Odell claimed that he drove the Tahoe but was ignorant of any plan the others had to commit crimes at Newman's house. [10-14] ¶22 Our Supreme Court has held: The fact that the interests of all the participants in a crime conflict does not require that the court grant each of several participants a separate trial. Such conflicts invariably will be present "where two or more persons are tried for the same crime . . . ." and if such conflicts are "regarded as requiring a separate trial, it is at once plain that the statute is rendered nugatory, and joint trials will be the exception and not the rule. But such was not the intent of the legislature." State v. Davis, 73 Wn.2d 271, 290, 438 P.2d 185 (1968) (alteration in original) (quoting State v. Clark, 156 Wash. 47, 51, 286 P. 69 (1930)). "The mere existence of antagonism between defenses 'or the desire of one defendant to exculpate himself by inculpating a codefendant . . . is insufficient to [compel separate trials].'" In re Pers. Restraint of Davis, 152 Wn.2d 647, 712, 101 P.3d 1 (2004) (alterations in original) (footnote omitted) (quoting United States v. Throckmorton, 87 F.3d 1069, 1072 (9th Cir. 1996)). Rather, the defendant must "'demonstrate[ ] that the conflict is so prejudicial that . . . the jury will unjustifiably infer that this conflict alone demonstrates that both are guilty.'" Grisby, 97 Wn.2d at 508 (quoting United States v. Davis, 623 F.2d 188, 194-95 (1st Cir. 1980)). For defenses to be irreconcilable, they must be "mutually exclusive to the extent that one [defense] must be believed if the other [defense] is disbelieved." State v. McKinzy, 72 Wn. App. 85, 90, 863 P.2d 594 (1993). ¶23 We rarely overturn a trial court's denial of a motion to sever on the basis of mutually exclusive defenses, even when one defendant tries to blame another. In State v. Medina, we held that the defendants did not have mutually antagonistic defenses when the evidence showed that two or more people assaulted the victim and both defendants denied that they hit him. 112 Wn. App. 40, 53, 48 P.3d 1005 (2002). The evidence showed that about six people were in the group that attacked the victim, but the victim did not know how many people actually hit him. Medina, 112 Wn. App. at 43. Thus, the jury's disbelief of one defendant's claim of innocence did not compel its belief in the other's claim of innocence, so no conflict arose implying that both were guilty. Medina, 112 Wn. App. at 53. ¶24 In State v. Larry, we held that attempted murder defenses were not mutually exclusive when Varnes argued that he never formed the intent to kill and that his codefendant, Larry, "'call[ed] the shots.'" 108 Wn. App. 894, 911, 34 P.3d 241 (2001). Larry said a fourth person was the shooter. These defenses were not irreconcilable because a jury could believe both Varnes' and Larry's defenses by concluding that neither man was guilty. See Larry, 108 Wn. App. at 911-12. ¶25 And in Grisby, our Supreme Court held that defendants Frazier and Grisby did not demonstrate mutually exclusive defenses to five first degree aggravated murder charges. 97 Wn.2d at 508. One or both men killed three adults and two children and wounded two adults; one of the wounded was Grisby. Frazier and Grisby both admitted that they went to the victim's apartment to complain about the drugs he sold them. Frazier admitted that he opened fire on the apartment's occupants and wounded Grisby. But Frazier said he emptied one gun, dropped it, and then fled; Grisby said he was unarmed and left when the shots were fired. Grisby, 97 Wn.2d at 496. The Court held that these were not mutually antagonistic defenses because the two defenses were largely similar, agreeing on every fact except for blaming one another for shooting the victims. Grisby, 97 Wn.2d at 508. ¶26 Grisby presented a factual scenario in which "one [or more] defendant[s] sought to escape conviction by placing the guilt on his co-defendant." Wade R. Habeeb, Antagonistic Defenses as Ground for Separate Trials of Codefendants in Criminal Case, 82 A.L.R.3D 245, 260 (1978); see Grisby, 97 Wn.2d at 508. Federal courts have held that severance is not required on this basis alone, and the Grisby court adopted the federal standard. 97 Wn.2d at 508. Thus, the rule in Washington is that "'the desire of one defendant to exculpate himself by inculpating a codefendant . . . is insufficient to [compel separate trials].'" Davis, 152 Wn.2d at 712 (alterations in original) (quoting Throckmorton, 87 F.3d at 1072). ¶27 Here, Johnson tried to exculpate himself by blaming his codefendants. Johnson's testimony did little to exonerate him because he essentially admitted to every element of every charge against him except for the assault on Laura. Like Varnes, Johnson admitted that he participated in the crimes, but he claimed that his codefendants were the masterminds who were more culpable. Larry, 108 Wn. App. at 911-12. ¶28 Johnson, Balaski, and Odell failed to show that their defenses were irreconcilable, i.e., "that one [defense] must be believed if the other [defense] is disbelieved." McKinzy, 72 Wn. App. at 90. If the jury believed Odell's argument that he was an unwitting participant in the crimes, it need not have disbelieved Johnson's defense that he planned to participate in only a burglary and not a murder. If the jury believed Johnson's defense of ignorance of the murder plan, it was not required to disbelieve that Odell participated unwittingly. Thus, Johnson and Odell's defenses were not irreconcilable. ¶29 Similarly, if the jury believed Balaski's alibi defense, it did not need to disbelieve Johnson's claim that he did not plan to participate in a murder. Conversely, it could have believed Johnson without disbelieving that Balaski had an alibi. Because the defenses were not mutually antagonistic, the trial court did not err in refusing to sever the trials. Under Washington law, Johnson's attempt to exculpate himself by blaming his codefendants is not a legally sufficient reason to sever the codefendants' trials and, thus, Johnson, Balaski, and Odell fail to persuade us that the trial court erred when it denied their motions to sever on this ground. [15] ¶30 Furthermore, the trial court gave appropriate cautionary jury instructions. See Grisby, 97 Wn.2d at 509 (holding these instructions are relevant to whether failure to sever caused prejudice). The trial court instructed the jury that "[y]our verdict on one count as to one defendant should not control your verdict on any other count or as to any other defendant." Odell Clerk's Papers (CP) at 376. The trial court also instructed: The testimony of an accomplice should be subjected to careful examination in the light of other evidence in the case, and should be acted upon with great caution. You should not find a defendant guilty upon such testimony alone unless, after carefully considering the testimony, you are satisfied beyond a reasonable doubt of its truth. Odell CP at 384. We presume that jurors follow instructions. State v. Kroll, 87 Wn.2d 829, 835, 558 P.2d 173 (1976). The trial court did not err in refusing to sever Johnson's, Balaski's, and Odell's trials. C. Johnson's Statement Inculpating Odell [16] ¶31 Odell further argues that severance was warranted solely because Johnson testified against him. Odell cites Canedo-Astorga, in which we held that a defendant may demonstrate specific prejudice warranting severance by showing "(1) antagonistic defenses conflicting to the point of being irreconcilable and mutually exclusive; (2) a massive and complex quantity of evidence making it almost impossible for the jury to separate evidence as it related to each defendant when determining each defendant's innocence or guilt; (3) a co-defendant's statement inculpating the moving defendant; (4) or gross disparity in the weight of the evidence against the defendants." 79 Wn. App. at 528 (quoting Oglesby, 764 F.2d at 1276). Specifically, Odell argues that he has demonstrated prejudice under the third standard because Johnson's testimony was a statement that implicated both him and Balaski. ¶32 The word "statement" relates to confessions, not testimony. Canedo-Astorga quoted Oglesby for this rule and Oglesby, in turn, relied on United States v. Holleman, 575 F.2d 139 (7th Cir. 1978). In Holleman, a defendant sought severance because his codefendant's confession implicated him. 575 F.2d at 142-43. Accordingly, the Holleman court analyzed the case under the rule for severance based on a codefendant's confession that the United States Supreme Court established in Bruton v. United States, 391 U.S. 123, 88 S. Ct. 1620, 20 L. Ed. 2d 476 (1968). ¶33 Under Bruton, a criminal defendant may be entitled to severance if (1) his codefendant implicates him in a confession, (2) the confession is introduced into evidence without sufficient redaction, and (3) the defendant who confessed does not testify and is, therefore, not subject to cross-examination. 391 U.S. at 126; see also M.O. Regensteiner, Annotation, Right to Severance Where Codefendant Has Incriminated Himself, 54 A.L.R.2D 830 (1957); 53-55 A.L.R.2D Later Case Service 311 (2000) (see annotations) (analyzing right to severance when a codefendant incriminates himself). Such a scenario deprives a criminal defendant of the constitutional right to confront and cross-examine witnesses against him. Bruton, 391 U.S. at 126. Because the Bruton rule rests on the right to cross-examination, severance is not warranted if the confessing defendant testifies, thus allowing the implicated codefendant to cross-examine him. State v. Craig, 82 Wn.2d 777, 788, 514 P.2d 151 (1973). ¶34 Here, Johnson's statements were introduced through his testimony, not a confession. It is undisputed that Odell and Balaski had the opportunity to cross-examine Johnson. Thus, the joint trial did not deprive them of the right to confrontation and severance was not warranted on this basis. ¶35 A majority of the panel having determined that only a portion of this opinion will be printed in the Washington Appellate Reports, the remainder will be filed for public record pursuant to RCW 2.06.040, it is so ordered. III. SUFFICIENCY OF THE EVIDENCE OF ASSAULT OF LAURA HARRINGTON ¶36 Johnson, Balaski, and Odell also contend that the evidence was insufficient to support their convictions for first degree assault of Laura Harrington. They argue that the evidence failed to support specific intent to commit first degree assault against her. We disagree. A. Standard of Review ¶37 "The test for determining the sufficiency of the evidence is whether, after viewing the evidence in the light most favorable to the State, any rational trier of fact could have found guilt beyond a reasonable doubt." State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992). An insufficiency claim admits the truth of the State's evidence and any reasonable inferences from it. Salinas, 119 Wn.2d at 201. We defer to the fact-finder "on issues of conflicting testimony, credibility of witnesses, and the persuasiveness of the evidence." State v. Thomas, 150 Wn.2d 821, 874-75, 83 P.3d 970 (2004). And we consider circumstantial and direct evidence to be equally reliable. Thomas, 150 Wn.2d at 874. ¶38 When "determining whether the necessary quantum of proof exists, [we] need not be convinced of the defendant's guilt beyond a reasonable doubt, but only that substantial evidence supports the State's case." State v. Fiser, 99 Wn. App. 714, 718, 995 P.2d 107 (2000). Substantial evidence is evidence that "would convince an unprejudiced, thinking mind of the truth of the fact to which the evidence is directed." In finding substantial evidence, we cannot rely on "guess, speculation or conjecture." State v. Hutton, 7 Wn. App. 726, 728, 502 P.2d 1037 (1972). B. Evidence of Assault of Laura Harrington ¶39 The following evidence, taken in the light most favorable to the State, is relevant to our analysis: Johnson, Balaski, and Odell were part of a plan to enter Newman's house armed with deadly weapons, force him to tell where his money was hidden, and steal that money. Odell, Rekdahl, and Balaski also planned to kill Newman; but Johnson denied any knowledge of this, insisting that he thought the others were going to commit only a burglary for money. Rekdahl, Johnson, and Balaski dressed in camouflage clothing and masks and armed themselves with deadly weapons; then Odell drove them to Newman's house. Rekdahl, Johnson, and Balaski--armed and wearing camouflage clothing and masks--burst into Newman's lighted home through its front double doors. ¶40 Laura testified that she, her late husband, and Newman were sitting and talking in the house when the front doors of the house suddenly "burst open" and "three men with camouflage clothing and masks and automatic weapons" came inside. She testified that she was terrified; she "couldn't believe what [she] was seein[g]." RP at 713. As she and her husband fled toward the back door, she saw Newman run toward the three masked men with "his arms outstretched like he was going to jump on them all," and then she heard a gunshot. RP at 715. Rekdahl shot Newman in the leg and Johnson repeatedly hit Newman in the head with his pistol. ¶41 Meanwhile, in the back yard, Laura fell while the couple tried to escape and Robert stayed with her, holding her arms. One of the gunmen stood above the couple and pointed his weapon at them; Robert pleaded with him to let them go. Robert and Laura scrambled to their feet and ran further into the backyard. Then, Laura heard another gunshot. She heard Robert cry out, "God, oh my God." RP at 717. As Laura continued to run for her life, she heard the gunman fire four or five more times, striking Robert repeatedly; he fell to the ground, mortally wounded. ¶42 Fearing she was next, Laura crawled through a hedge and across the street and lay face down near a curb to conceal herself. She could hear a man looking for her in the nearby shrubbery when "somebody c[a]me from around the front of the house and yelled, 'Come on, man, we gotta get the fuck outta here.'" RP at 718. Her pursuer then left. Back in the Tahoe, Odell asked, "Did you kill him? Did you kill the motherfucker?" Balaski replied, "He's dead," and Odell pumped his fist in the air and said, "Yes." RP at 2598-99. C. Applicable Law ¶43 RCW 9A.36.011(1) states: A person is guilty of assault in the first degree if he or she, with intent to inflict great bodily harm: (a) Assaults another with a firearm or any deadly weapon or by any force or means likely to produce great bodily harm or death; or . . . . (c) Assaults another and inflicts great bodily harm. The to-convict jury instructions, numbers 22-24, for each defendant stated: (1) That on or about August 6, 2005, the defendant . . . or an accomplice, assaulted Laura Harrington; (2) That the assault was committed with a firearm or by a force or means likely to produce great bodily harm or death; (3) That the defendant . . . or an accomplice, acted with intent to inflict great bodily harm or death; and (4) That this act occurred in the State of Washington. Johnson CP at 276-78. ¶44 In jury instruction number 12, the trial court instructed the jury on accomplice liability: A person is an accomplice in the commission of a crime if, with knowledge that it will promote or facilitate the commission of the crime, he or she either: (1) solicits, commands, encourages, or requests another person to commit the crime; or (2) aids or agrees to aid another person in planning or committing the crime. The word "aid" means all assistance whether given by words, acts, encouragement, support, or presence. A person who is present at the scene and ready to assist by his or her presence is aiding in the commission of the crime. However, more than mere presence and knowledge of the criminal activity of another must be shown to establish that a person present is an accomplice. A person who is an accomplice in the commission of a crime is guilty of that crime whether present at the scene or not. Johnson CP at 266. See RCW 9A.08.020; 11 Washington Practice: Washington Pattern Jury Instructions: Criminal 10.51, at 136 (2d ed. Supp. 2005) (WPIC). ¶45 Jury instruction No. 31 defined assault in the following way: An assault is an intentional touching or striking or shooting of another person, with unlawful force, that is harmful or offensive regardless of whether any physical injury is done to the person. A touching or striking or shooting is offensive if the touching or striking or shooting would offend an ordinary person who is not unduly sensitive. An assault is also an act, with unlawful force, done with intent to inflict bodily injury upon another, tending but failing to accomplish it and accompanied with the apparent present ability to inflict the bodily injury if not prevented. It is not necessary that bodily injury be inflicted. An assault is also an act, with unlawful force, done with the intent to create in another apprehension and fear of bodily injury, and which in fact creates in another a reasonable apprehension and imminent fear of bodily injury even though the actor did not actually intend to inflict bodily injury. Johnson CP at 285 (emphasis added). This instruction is taken verbatim from WPIC 35.50. The italicized portion, relevant here, is the approved common law definition of assault reflecting the specific intent requirement. See State v. Eastmond, 129 Wn.2d 497, 500, 919 P.2d 577 (1996); State v. Byrd, 125 Wn.2d 707, 711 n.2, 712-13, 887 P.2d 396 (1995). ¶46 As our Supreme Court explained in State v. Wilson, so far as first degree assault is concerned, the doctrine of transferred intent had been codified by RCW 9A.36.011: Under a literal interpretation of RCW 9A.36.011, a person is guilty of assault in the first degree if he or she, with the intent to inflict great bodily harm, assaults another with a firearm, administers poison to another, or assaults another person and causes great bodily harm. The mens rea for this crime is the "intent to inflict great bodily harm". Assault in the first degree requires a specific intent; but it does not, under all circumstances, require that the specific intent match a specific victim. Consequently, once the intent to inflict great bodily harm is established, usually by proving that the defendant intended to inflict great bodily harm on a specific person, the mens rea is transferred under RCW 9A.36.011 to any unintended victim. 125 Wn.2d 212, 218, 883 P.2d 320 (1994). Although the Wilson court dealt with a defendant convicted of assault with intent to inflict great bodily harm, the doctrine of transferred intent similarly applies to defendants who assault an unintended victim with intent to create an apprehension and fear of bodily injury. State v. Elmi, 138 Wn. App. 306, 316, 156 P.3d 281 (2007). ¶47 Finally, RCW 9A.52.020(1) states that: A person is guilty of burglary in the first degree if, with intent to commit a crime against a person or property therein, he or she enters or remains unlawfully in a building and if, in entering or while in the building or in immediate flight therefrom, the actor or another participant in the crime (a) is armed with a deadly weapon, or (b) assaults any person. D. The Assault of Laura Harrington ¶48 Here, the facts taken in the light most favorable to the State show that Johnson, Balaski, and Odell were part of a plan to enter Newman's house armed with deadly weapons, force him to tell where his money was hidden, and steal that money. An actor can commit first degree burglary after unlawful entry by either being armed with a deadly weapon or by committing an assault. See RCW 9A.52.020. Johnson, Balaski, and Rekdahl entered unlawfully while armed with deadly weapons and committed first degree assault. RCW 9A.52.050 specifically states that "[e]very person who, in the commission of a burglary shall commit any other crime, may be punished therefor as well as for the burglary, and may be prosecuted for each crime separately." Under these facts, Johnson, Balaski, and Odell were properly charged with the crimes of burglary and assault and any rational juror could have found that they had the specific intent to commit both first degree burglary and first degree assault. Any rational juror could conclude that Odell, as an accomplice, IV. JOHNSON'S SPEEDY TRIAL RIGHT ¶49 Johnson next argues that the trial court violated his right to a speedy trial under CrR 3.3 and the state and federal constitutions. A. Relevant Facts ¶50 The State arraigned Johnson on August 26, 2005. On September 9, 2005, Johnson's attorney requested a continuance because she needed more time to prepare. Johnson objected personally to the continuance, but the trial court found good cause and reset the trial date to December 2005. Johnson then hired a new attorney who requested another continuance. Johnson also signed a speedy trial waiver on December 6, 2005 in order to allow a joint trial with Balaski and Odell in late February 2006. ¶51 On February 7, 2006, the State filed an additional charge against Johnson for the assault of Laura Harrington. On February 9, 2006, Balaski and Odell requested a continuance because they needed at least 12 more weeks to prepare for trial. Odell's attorney explained that he had to reduce his caseload and drop a criminal defense contract in order to handle the over 2,000 pages of discovery in the case. Balaski's attorney still had to interview 34 people in connection with the case. ¶52 Johnson's attorney opposed the motion based on his client's wishes, but he was in a position similar to that of the other two defense attorneys: [JOHNSON'S COUNSEL]: Mr. Johnson is not anxious to waive speedy trial. We've been provided authority by the State standing for the proposition that the Court has inherent power to and discretion to basically carry him along with the other co-defendants with or without our waiver of speedy trial. THE COURT: But he thinks he's ready to go on the 21st, . . . [o]r do you think you're ready to go on the 21st [JOHNSON'S COUNSEL]: No. No. So that's our position. He's not prepared to waive speedy trial, recognizing that continuance is likely. RP at 159 (emphasis added). B. Continuance Under CrR 3.3 ¶53 Johnson argues that the February 9, 2006, continuance violated CrR 3.3. We review the decision to grant or deny a continuance under CrR 3.3 for abuse of discretion. State v. Downing, 151 Wn.2d 265, 272, 87 P.3d 1169 (2004). ¶54 CrR 3.3(b)(1) provides that the State must generally try an incarcerated criminal defendant within 60 days after arraignment. A trial court "may continue the trial date to a specified date when such continuance is required in the administration of justice and the defendant will not be prejudiced in the presentation of his or her defense." CrR 3.3(f)(2). The CrR 3.3 speedy trial rule is not of constitutional magnitude. State v. Fladebo, 113 Wn.2d 388, 393, 779 P.2d 707 (1989). ¶55 A trial court does not abuse its discretion when it grants a continuance to allow defense counsel sufficient time to prepare a complex and lengthy case for trial. State v. Campbell, 103 Wn.2d 1, 14-15, 691 P.2d 929 (1984). And a trial court need not grant severance to protect the rule-based speedy trial right of one jointly charged defendant. State v. Phuong H. Nguyen, 131 Wn. App. 815, 820, 129 P.3d 821 (2006). Because all defense counsel indicated a need for more time to prepare for trial, the trial court did not abuse its discretion under CrR 3.3 when it granted the continuance over Johnson's objection. C. Constitutional Speedy Trial Right ¶56 Johnson further argues that the February 9 continuance violated his constitutional right to a speedy trial. He asserts that he was "in custody for over a year as of his trial date," he waived speedy trial only during a 62-day time period, and the delay prejudiced him because the State amended his information to add the charge of first degree assault of Laura Harrington between the continuance and the trial date. Johnson Br. of Appellant at 23. This argument fails. ¶57 "The threshold for a constitutional [speedy trial] violation is much higher than that for a violation of [CrR 3.3]." Fladebo, 113 Wn.2d at 393; see also U.S. Const. amend. VI; Wash. Const. art. I, $ 22. The constitutional right to a speedy trial is not violated by passage of a fixed time but, rather, at the expiration of a reasonable time. See State v. Poulos, 31 Wn. App. 241, 243, 640 P.2d 735 (1982). ¶58 To determine whether a defendant's constitutional speedy trial right has been violated, we must balance four interrelated factors: (1) the "length of delay," (2) the "reason for delay," (3) the "defendant's assertion of the right," and (4) the "prejudice to the defendant." State v. Hudson, 130 Wn.2d 48, 58 n.5, 921 P.2d 538 (1996); Doggett v. United States, 505 U.S. 647, 651, 112 S. Ct. 2686, 120 L. Ed. 2d 520 (1992). "'Although not essential to finding a violation of speedy trial rights, prejudice is a major consideration.'" State v. Iniguez, 143 Wn. App. 845, 857, 180 P.3d 855 (2008) (quoting State v. Corrado, 94 Wn. App. 228, 233, 972 P.2d 515 (1999)). We assess prejudice in light of the interests that the speedy trial right is designed to protect; these include "(1) preventing oppressive pretrial incarceration, (2) minimizing the anxiety and concern of the accused, and (3) limiting the possibility that the defense will be impaired." Iniguez, 143 Wn. App. at 858. The last prejudice factor is most important. Iniguez, 143 Wn. App. at 858. ¶59 We address the four factors in turn. First, the nearly 12-month delay was presumptively prejudicial. See State v. Price, 94 Wn.2d 810, 813-14, 620 P.2d 994 (1980) (speedy trial period generally begins on date of arraignment); State v. Corrado, 94 Wn. App. 228, 233-34, 972 P.2d 515 (1999) (A delay longer than 11 months was held to be "presumptively prejudicial."). "However, this presumption is just one factor to be weighed in determining whether [Johnson's] speedy trial rights have been violated." Corrado, 94 Wn. App. at 234. ¶60 Second, three events delayed Johnson's trial date: (1) Johnson's first attorney needed more time to prepare Johnson's defense; (2) Johnson hired a new attorney, who also needed more preparation time and had Johnson sign a speedy trial waiver; and (3) defense attorneys for all three defendants indicated that they needed an additional continuance of at least three months to prepare an adequate defense. Johnson does not challenge these reasons on appeal. The speedy trial right is crafted to protect the defendant's ability to prepare an adequate defense. Iniguez, 143 Wn. App. at 858. Because the trial court granted these continuances to ensure that Johnson's attorneys could adequately defend him, this factor weighs strongly in favor of concluding that Johnson's speedy trial right was not violated. ¶61 Third, Johnson's objections are somewhat inconsistent. He objected to the first continuance, waived speedy trial on the second, and objected to the third. This factor neither supports nor weakens Johnson's argument. Fourth, Johnson's claims of prejudice are not persuasive. He argues only that the State amended the information to add an additional charge, which conformed the charges against him to those of his codefendants. But Johnson does not argue that the State violated any law or procedure by adding the charge at that time, that the State would not have added the charge if trial had not been delayed, or that the State failed to act with due diligence. ¶62 The record does not show that the continuances prejudiced the presentation of Johnson's defense. Instead, the record demonstrates that Johnson's attorneys could not prepare an adequate defense without the continuances. Although we presume prejudice after an 11-month delay, balancing the delay against other considerations in this case overcomes that presumption. We hold that the delay in bringing this case to trial did not violate Johnson's constitutional right to a fair trial. V. SEARCH AND SEIZURE ¶63 Johnson, Balaski, and Odell also argue that the trial court erred when it denied their motions to suppress evidence. They challenge their detention in the Tahoe under Terry v. Ohio, 392 U.S. 1, 21, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968). Odell argues that the search warrants for his home and shop lacked probable cause. A. Terry Stop ¶64 Johnson, Balaski, and Odell argue that the trial court erred when it held that, when Young stopped the Tahoe, he performed a valid warrantless detention under Terry. They assert that (1) the facts did not reasonably warrant the intrusion and (2) Young exceeded the permissible scope of a Terry stop when he drew his gun and told them to get down on the ground. ¶65 To justify a Terry stop and investigatory detention, an officer must have "specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion." Terry, 392 U.S. at 21; see also State v. Kennedy, 107 Wn.2d 1, 5, 726 P.2d 445 (1986); State v. Williams, 102 Wn.2d 733, 739, 689 P.2d 1065 (1984). "In evaluating the reasonableness of an investigative stop, [we] consider the totality of the circumstances, including the officer's training and experience, the location of the stop, and the conduct of the person detained." State v. Acrey, 148 Wn.2d 738, 747, 64 P.3d 594 (2003). We also consider "'the purpose of the stop, the amount of physical intrusion upon the suspect's liberty, and the length of time the suspect is detained.'" Acrey, 148 Wn.2d at 747 (quoting Williams, 102 Wn.2d at 740). Furthermore, a Terry stop is limited to a reasonable scope. When, as here, a deputy drew his weapon on the detainees, we analyze the particular circumstances to determine whether the officer had sufficient specific information about the suspects on which to base reasonable fear for his own safety and justify drawing his weapon to investigate further. State v. Belieu, 112 Wn.2d 587, 605, 773 P.2d 46 (1989). ¶66 When Young stopped the Tahoe holding Johnson, Balaski, and Odell, he knew the following facts: (1) there was a shooting in which one person was killed and another was injured; (2) dispatch requested that the police locate a white Chevrolet Tahoe with an Oregon license plate number 097BLX that was seen leaving the shooting; (3) the shooting involved multiple male suspects, possibly four, wearing masks and camouflage; (4) the suspects were armed with assault rifles; (5) Young saw a white Chevrolet Tahoe with Oregon license plate 097BLX; (6) Young followed the Tahoe from a distance and waited for backup because he was alone and he believed that the occupants could be the armed suspects; (7) when the Tahoe stopped, four men began to exit; (8) although one report listed the suspects as black, the people exiting the Tahoe were not black; and (9) at least one of the men in the Tahoe wore camouflage. ¶67 These facts strongly indicate that Young anticipated that four armed men, who had recently killed one person and injured another, were inside the Tahoe. It makes little difference whether the men were incorrectly identified as black, that Tahoes were common vehicles near the crime scene, or that Young detained the men some time after and some distance away from the crime scene. Terry requires reasonableness, not perfection, and Young identified the Tahoe from its license plate, not from a random sweep of the area. In fact, Young had spotted another white Tahoe earlier but declined to follow it because its license plate did not match the police description. ¶68 These facts also support Young's decision to treat the stop as a high risk one by drawing his gun. Backup had not arrived and Young reasonably believed that these four men were armed and had recently committed a murder and an assault. B. Search Warrants for Odell's Home and Shop ¶69 Odell also appeals the trial court's denial of his motion to suppress evidence seized after police executed search warrants for his house and shop. He argues that the warrants lacked probable cause. ¶70 We examine warrants de novo to determine whether the facts support probable cause. State v. Nusbaum, 126 Wn. App. 160, 166-67, 107 P.3d 768 (2005). And we review for abuse of discretion, giving great deference to a trial court's determination of probable cause. State v. Vickers, 148 Wn.2d 91, 108, 59 P.3d 58 (2002). ¶71 "A search warrant may issue only upon a determination of probable cause." State v. Thein, 138 Wn.2d 133, 140, 977 P.2d 582 (1999). "Probable cause exists if the affidavit in support of the warrant sets forth facts and circumstances sufficient to establish a reasonable inference that the defendant is probably involved in criminal activity and that evidence of the crime can be found at the place to be searched." Thein, 138 Wn.2d at 140. Accordingly, "probable cause requires a nexus between criminal activity and the item to be seized, and also a nexus between the item to be seized and the place to be searched." State v. Goble, 88 Wn. App. 503, 509, 945 P.2d 263 (1997). ¶72 Here, the affidavit in support of the warrant established the following relevant facts: (1) Young reported that Odell drove the Tahoe and was arrested with Johnson and Balaski; (2) a nightclub employee said that Rekdahl, Johnson, and Odell were there together on August 6, 2005; (3) Balaski's brother told police that if Balaski was arrested with three other people, it would be Rekdahl, Johnson, and Odell; (4) Odell and his wife employed Rekdahl at their glass business located on Winchell Street in Portland; (5) detectives found Johnson's Dodge Durango and Balaski's Chevrolet Blazer parked next to each other near Odell's new shop on Albina Street in Portland; (6) witnesses reported that earlier Odell's wife and another woman entered Johnson's and Balaski's vehicles and looked under the seats and inside the passenger compartments; (7) Odell's house was about three blocks from his business office; (8) Rekdahl's pickup truck was parked in front of Odell's house; (9) Ms. Odell operated a laptop computer in her home that she quickly turned off and shut when detectives came in to interview her; (10) Ms. Odell said Rekdahl kept a supply of clean clothes and his boat at her home; (11) Rekdahl's housemate told police he received a call from Odell asking him to check on Odell's wife; and (12) Rekdahl called his housemate on a cell phone with the number police identified as Ms. Odell's work number. ¶73 The affidavit also established that police found the following evidence at Balaski's house: (1) documents and mail showing a relationship between Balaski, Odell, and Rekdahl; (2) a receipt for "Inmate Funds" showing Balaski deposited $ 100 into Rekdahl's account; (3) an envelope for mail from Rekdahl to Balaski; and (4) a hand-drawn map to Odell's home. ¶74 Odell argues that the facts fail to establish probable cause to believe that Odell's house or shop contained evidence of conspiracy. But the facts establish a sufficient nexus between evidence of a conspiracy and Odell's home and shop. The four men knew each other, met before the crime at the nightclub, and Balaski, Johnson, and Rekdahl each left their vehicles near Odell's house or shop before they went together to the crime scene. Rekdahl left items at Odell's house and used the cell phone for Odell's nearby shop. Police had reason to suspect that Ms. Odell was communicating with Rekdahl from her home computer and hid or destroyed evidence located in the men's nearby vehicles. Police found written evidence of the men's relationships and conspiracy in Balaski's house. ¶75 Accordingly, the trial court did not abuse its discretion when it denied Odell's motions to suppress evidence seized after police executed the warrant. VI. JUROR'S CONTACT WITH NEWMAN AND THE CRIME SCENE ¶76 Johnson and Balaski argue that the trial court should have dismissed juror number six for cause because he had contact with Newman and saw the crime scene. Johnson and Balaski also frame this issue as one of ineffective assistance of counsel. ¶77 "The trial court has broad discretion over the jury selection process." State v. Williamson, 100 Wn. App. 248, 255, 996 P.2d 1097 (2000). Presumably, "each juror sworn in a case is impartial and above legal exception; otherwise, he would have been challenged for cause." State v. Reid, 40 Wn. App. 319, 322, 698 P.2d 588 (1985). When a party accepts a juror without exercising any available challenges, including peremptory challenges, he or she waives his right to later challenge the juror's inclusion. State v. Robinson, 75 Wn.2d 230, 231-32, 450 P.2d 180 (1969); Reid, 40 Wn. App. at 322. ¶78 During voir dire, juror number six said that he photographed Newman's house for an advertisement for its sale. He saw the house's interior and had a brief conversation with Newman, who wore a cast, but told him he did not want to discuss his injury. Juror number six saw a stain, possibly blood, on the carpet and believed something unusual had occurred there or elsewhere in the neighborhood. He stated that these experiences would not affect his ability to remain fair and impartial ¶79 The State challenged juror number six for cause. Balaski and Odell opposed the challenge, while Johnson remained silent. The trial court ruled in Balaski and Odell's favor and denied the State's request to excuse juror number six for cause. ¶80 Neither Balaski nor Johnson exercised a peremptory challenge to exclude juror number six and neither moved to excuse him for cause. And Balaski objected to the State's for-cause challenge of juror number six. Both, therefore, waived our review of this issue on the merits. Robinson, 75 Wn.2d at 231. Moreover, the invited error doctrine precludes a party from setting up an error at the trial court and then complaining of it on appeal. State v. Henderson, 114 Wn.2d 867, 870-71, 792 P.2d 514 (1990). By objecting to the State's for-cause challenge to juror number six, Balaski also invited any error that might flow from seating him on the jury. ¶81 Johnson and Balaski also frame this as an issue of ineffective assistance of counsel. Both argue that their counsel was ineffective because they failed to challenge juror number six. We review claims of ineffective assistance of counsel de novo. State v. White, 80 Wn. App. 406, 410, 907 P.2d 310 (1995). To demonstrate ineffective assistance of counsel, the appellant must show that (1) defense counsel's representation was deficient; i.e., "it fell below an objective standard of reasonableness based on consideration of all the circumstances," and (2) defense counsel's deficient representation prejudiced the defendant; i.e., there is a reasonable probability that, except for counsel's unprofessional errors, the result of the proceeding would have differed. "The defendant must overcome a strong presumption that counsel's performance was not deficient." State v. Nichols, 161 Wn.2d 1, 8, 162 P.3d 1122 (2007). "In assessing performance, 'the court must make every effort to eliminate the distorting effects of hindsight.'" Nichols, 161 Wn.2d at 8 (quoting In re Pers. Restraint of Rice, 118 Wn.2d 876, 888, 828 P.2d 1086 (1992)). Here, juror number six stated that he could be impartial, and "[i]t is a legitimate trial strategy not to challenge a juror who states [he] can be impartial." State v. Castro, 141 Wn. App. 485, 493, 170 P.3d 78 (2007). ¶82 Balaski additionally argues that his counsel was ineffective because he did not question juror number six about his impartiality. But there is no indication that this juror was biased and, therefore, no reason to believe the trial outcome would have changed if Balaski's counsel questioned him in more depth. This is particularly true given the overwhelming weight of evidence presented against Balaski. Thus, Balaski's and Johnson's claims of ineffective counsel fail. VII. INEFFECTIVE ASSISTANCE OF JOHNSON'S COUNSEL ¶83 Johnson also argues that his counsel was ineffective because he (1) did not object to a question about Johnson's past criminal conduct, (2) put Johnson on the stand in order to present a defense that the law does not recognize, and (3) told the jury he had to act like a "mini-prosecutor" in the case. SAG at 24 (quoting RP at 2774). A. Johnson's Past Criminal Conduct ¶84 Johnson argues he received ineffective assistance of counsel because his attorney failed to object after Odell's attorney asked him, "[Y]ou've 'done this before,' haven't ya?" Johnson Br. of Appellant at 34-36 (quoting RP at 2623). ¶85 Odell's attorney asked Johnson: Q. [The prosecutor] asked you if you were surprised when Newman attacked you. A. Yes, I was surprised, a man comes running at us - - Q. Okay, that's fair, you'd be surprised. But you said, "But it can happen" - - A. Yeah, it can happen. Q. Because you've done this before, haven't ya'? A. Yeah, I have. Q. You and [Rekdahl] have done this exact thing before, haven't ya'? A. Uh, yeah. RP at 2622-23. Johnson's attorney did not object. Johnson claims the jury could infer from this dialogue that Johnson's prior criminal conduct was evidence of his guilt in this case. ¶86 "Evidence of other crimes, wrongs, or acts is not admissible to prove the [defendant's] character . . . in order to show action in conformity therewith," although such evidence may be admissible for other purposes. ER 404(b). Evidence of prior acts is admissible for the purpose of showing the defendant followed a common plan or scheme. Doe v. Corp. of the President of Jesus Christ of Latter-Day Saints, 141 Wn. App. 407, 434, 167 P.3d 1193 (2007). ¶87 Here, the evidence that Johnson and Rekdahl had "done this before" was likely inadmissible under the common plan or scheme exception. RP at 2623. But Johnson's attorney did not perform deficiently when he chose not to object and draw attention to this brief line of questioning and Johnson cannot show prejudice in light of his own testimony that he armed himself, entered Newman's house with Rekdahl, and repeatedly struck Newman on the head with a firearm. This claim fails. B. Presentation of Johnson's Testimony ¶88 Johnson next asserts error because his attorney had him testify to a defense that the law does not recognize. Johnson argues that he testified to support his attorney's misinterpretation of the felony murder statute. But the evidence does not support this claim. ¶89 Johnson's theory was that burglary was not a predicate offense for felony murder if the defendant committed the burglary with the intent to steal, rather than the intent to commit a violent crime. The trial court rejected this theory and gave Johnson an hour to confer with his attorney about the court's ruling to decide whether Johnson would still testify. After that hour, Johnson's counsel said he had spoken with Johnson and that he would testify. ¶90 "[A] criminal defendant has a constitutional right to testify on his or her own behalf." State v. Robinson, 138 Wn.2d 753, 758, 982 P.2d 590 (1999); State v. Thomas, 128 Wn.2d 553, 558, 910 P.2d 475 (1996). Defense counsel may not abrogate this right. Robinson, 138 Wn.2d at 758. ¶91 Here, the trial record is silent regarding any discussion Johnson had with his attorney about whether he would testify and why. But the record from an offer of proof shows that Johnson wanted to testify: [JOHNSON'S COUNSEL]: Mr. Johnson, why are you testifying today? [JOHNSON]: To give everybody the truth. Those people in the back there deserve it. . . . . [JOHNSON'S COUNSEL]: Your Honor, I know that this is out of the ordinary, my client making comment on the stand while we're outside the presence of the jury. He'd like to direct a comment to the Newmans. THE COURT: No, he can't. This is a trial, it's not a therapy session. RP at 2663. ¶92 Johnson has failed to show that he testified to support an erroneous defense strategy rather than because he wanted to invoke his constitutional right to testify and tell the truth to benefit those in the court room. Accordingly, he has failed to prove that his attorney's performance was deficient. If Johnson has additional evidence to support his claim, such as an attorney affidavit, he can present it to this court in a timely personal restraint petition. RCW 10.73.090; RAP 16.14; In re Det. of Broten, 130 Wn. App. 326, 340-41, 122 P.3d 942 (2005) (ruling that "a personal restraint petition is the appropriate procedure to raise a claim of ineffective assistance of counsel on appeal based upon matters outside the record"). C. Closing Arguments ¶93 Johnson next asserts that his counsel's performance during closing argument was deficient. Specifically, he takes issue with the following statements by his counsel: Partway through this trial I broke my glasses. Put on a different pair of glasses. It's about that time in the trial that I've also decided that I had to become something I typically don't become, which is a mini prosecutor. We have attempted to present the facts, all the facts available to us, to you ladies and gentlemen of the jury. We have decided that you need to know that. We have decided that people need to know that. RP at 2774 (emphasis added). Johnson does not explain how this argument constitutes deficient performance that prejudiced his case. Johnson's counsel was apparently trying to garner the jury's favor by distinguishing Johnson from his codefendants. He was not claiming that he was a "mini prosecutor" against Johnson, but against Balaski and Odell. Accordingly, Johnson's claim of ineffective assistance of counsel fails. VIII. COMMENT BY BALASKI'S COUNSEL ABOUT ODELL DURING OPENING STATEMENTS ¶94 Odell argues the trial court erred when it declined to declare a mistrial after Balaski's counsel's opening statement. Odell contends Balaski's opening statement called attention to Odell's silence. There was not, however, a comment on silence and, thus, the trial court did not err. ¶95 We review the denial of a motion for mistrial for abuse of discretion, giving great deference to the trial court because it is in the best position to discern prejudice. State v. Lewis, 130 Wn.2d 700, 707, 927 P.2d 235 (1996). A trial court abuses its discretion when it bases its decision on untenable grounds or reasons. State v. Stenson, 132 Wn.2d 668, 701, 940 P.2d 1239 (1997). A mistrial motion should be granted only when a "defendant has been so prejudiced that nothing short of a new trial can insure that the defendant will be tried fairly." Lewis, 130 Wn.2d at 707. The law prohibits comments on a defendant's silence as substantive evidence of guilt. State v. Romero, 113 Wn. App. 779, 787, 54 P.3d 1255 (2002). ¶96 In his opening statement, Odell's attorney explained his theory that Odell drove the three men to the house but had no idea that they planned to commit crimes. Balaski's attorney then made his opening statement. He responded that Odell "[d]idn't know about a plan. That may be. He's got some explaining to do, though, -- you'll see." RP at 657. Odell objected to the statement as improper argument in opening statement. The trial court sustained the objection and admonished Balaski's attorney to limit his opening statement to a summary of evidence expected to be produced at trial. After all opening statements, Odell unsuccessfully moved for a mistrial and severance due to Balaski's counsel's statement, which he characterized as a comment on his silence that shifted the burden of producing evidence to Odell. ¶97 We agree with the trial court--this was not a comment on Odell's silence. Odell offered an explanation for his role in the events that precluded criminal liability. Balaski's counsel merely expressed that such an explanation would be necessary to contradict his own case theory. But Balaski's counsel did not suggest that Odell had to produce evidence of his theory. Odell could explain his defense through closing argument, commenting on the evidence the jury heard during trial. Although Balaski's counsel's statement strayed beyond a summary of evidence that would likely be produced at trial, it was not a comment on Odell's silence. The trial court did not err when it denied Odell's mistrial motion. IX. SAME CRIMINAL CONDUCT ¶98 Odell argues the trial court erred when it sentenced him for both felony murder and burglary, reasoning that the two crimes constitute the same criminal conduct. Multiple crimes constitute the same criminal conduct if they (1) "require the same criminal intent," (2) occur "at the same time and place," and (3) "involve the same victim." RCW 9.94A.589(1)(a). If a jury convicts a defendant of multiple offenses that encompass the same criminal conduct, the sentencing court must count those convictions as one crime. RCW 9.94A.589(1)(a). We defer to the sentencing court's same criminal conduct decision, reversing only if the sentencing court clearly abused its discretion or misapplied the law. State v. Elliott, 114 Wn.2d 6, 17, 785 P.2d 440 (1990). ¶99 Odell argues the sentencing court erred when it punished him for both burglary and felony murder. But the burglary antimerger statute abrogates this argument. It reads: "Every person who, in the commission of a burglary shall commit any other crime, may be punished therefor as well as for the burglary, and may be prosecuted for each crime separately." RCW 9A.52.050. Our Supreme Court has held that this statute gives a sentencing judge discretion to punish burglary, even if it and another crime encompass the same criminal conduct. State v. Lessley, 118 Wn.2d 773, 782, 827 P.2d 996 (1992). Accordingly, the sentencing court acted within its sound discretion when it sentenced Odell for burglary and felony murder. X. CUMULATIVE ERROR ¶100 Finally, Johnson and Balaski argue that we should reverse their convictions under the cumulative error doctrine. This doctrine applies when several errors occurred at the trial court level, none alone warrants reversal, but the combined errors effectively denied the defendant a fair trial. State v. Hodges, 118 Wn. App. 668, 673-74, 77 P.3d 375 (2003). Here, the doctrine of cumulative error does not apply because we do not find error. ¶101 Accordingly, we affirm Johnson's, Balaski's, and Odell's convictions. BRIDGEWATER and ARMSTRONG, JJ., concur.