State v. Chenoweth

185 Wash.2d 218

370 P.3d 6

STATE of Washington, Respondent,

v.Chad Curtis CHENOWETH, Petitioner.

No. 91366–8.

Supreme Court of Washington, En Banc.

Argued Nov. 12, 2015.

Decided March 17, 2016.

Thomas Michael Kummerow, Washington Appellate Project, Seattle, WA, for Petitioner.

Skagit County Prosecuting Atty., Erik Pedersen, Attorney at Law, Rosemary Hawkins Kaholokula, Skagit County Prosecuting Attorney, Mount Vernon, WA, for Respondent.

JOHNSON, J.

¶ 1 This case involves whether the crimes of rape of a child and incest based on a single act are, as a matter of law, considered the "same criminal conduct" under the Sentencing Reform Act of 1981, chapter 9.94A RCW, for purposes of RCW 9.94A.589(1)(a)when determining an offender score to determine a standard sentencing range. The Court of Appeals, in affirming the trial court, held that rape of a child and incest are not the same criminal conduct for purposes of sentencing. We affirm the Court of Appeals.

FACTS AND PROCEDURAL HISTORY

¶ 2 Chad Chenoweth was convicted of six counts of third degree child rape of his daughter and six counts of first degree incest. The incest counts and the rape of a child counts were based on six incidents, each involving a single act. At sentencing, Chenoweth moved the court to find the incest counts were the same criminal conduct as the corresponding rape of a child count. The trial court disagreed, relying on State v. Bobenhouse, 166 Wash.2d 881, 214 P.3d 907 (2009), and counted each conviction separately for the purposes of sentencing, concluding the offender score exceeded nine.¹ Sentences for each conviction were ordered to be served concurrently. Chenoweth appealed, and the Court of Appeals affirmed his sentence, also relying on Bobenhouse. State v. Chenoweth, noted at 185 Wash.App. 1041, 2015 WL 440744 (2015). This court granted review on the same criminal conduct issue. State v. Chenoweth, 183 Wash.2d 1024, 355 P.3d 1154 (2015).

ANALYSIS

¶ 3 Crimes constitute the same criminal conduct when they "require the same criminal intent, are committed at the same time and place, and involve the same victim."

RCW 9.94A.589(1)(a). Unless all elements are present, the offenses must be counted separately. State v. Porter, 133 Wash.2d 177, 181, 942 P.2d 974 (1997). Deciding whether crimes involve the same time, place, and victim often involves determinations of fact. In keeping with this fact-based inquiry, we have repeatedly observed that a court's determination of same criminal conduct will not be disturbed unless the sentencing court abuses its discretion or misapplies the law. See State v. Elliott, 114 Wash.2d 6, 17, 785 P.2d 440 (1990)(affirming the petitioner's sentence where the same criminal conduct determination involved "neither a clear abuse of discretion nor a misapplication of the law").

¶ 4 Chenoweth argues that child rape and incest, based on a single act, as a matter of law constitute the same criminal conduct for purposes of calculating his offender score. Multiple current offenses are considered the same criminal conduct, and thus as a matter of law are collectively counted as one crime in the offender score, when they "require the same criminal intent, are committed at the same time and place, and involve the same victim." RCW 9.94A.589(1)(a).

¶ 5 This statutory inquiry arises generally in cases where a defendant commits only one act, as occurred in this case. That means the incident(s) occurred at the same time and place and against the same victim, leaving only the intent element. In the present case, only the intent element is at issue; the trial court determined that the offenses of rape and incest were based on the same acts with the same victim at the same time. The trial court, in viewing the respective statutes, determined the intent differed for the crimes of rape of a child and incest.

¶ 6 We have held—for purposes of a double jeopardy analysis and in examining whether multiple offenses constitute the same criminal conduct—that rape of a child and incest are separate crimes because they involve distinct criminal intents. See, e.g., Bobenhouse, 166 Wash.2d at 896, 214 P.3d 907; State v. Calle, 125 Wash.2d 769, 780, 888 P.2d 155 (1995). In Bobenhouse, the defendant was convicted of three counts of rape of a child in the first degree and two counts of incest in the first degree. We held that these offenses do not constitute the same criminal conduct for sentencing purposes:

Bohenhouse further argues the trial court abused its discretion when it did not find that the underlying rape and incest charges (stemming from forcing the children to have sexual intercourse with each other) constituted the "same criminal conduct" for purposes of sentencing. Bohenhouse would have this court hold that first degree child rape and first degree incest involve the same criminal intent: sexual intercourse. But this argument has no merit. We have previously held that "the Legislature intended to punish incest and rape as separate offenses, even though committed by a single act." State v. Calle, 125 Wash.2d 769, 780, 888 P.2d 155 (1995). Bobenhouse's argument must fail in light of the precedent set by our decision in Calle .

Bobenhouse, 166 Wash.2d at 896, 214 P.3d 907.

¶ 7 In the present case, both the trial court and the Court of Appeals relied on Bobenhouse in determining that the rape and incest convictions did not involve the same intent. Chenoweth points out that the Calle opinion relied on in Bobenhouse appears to somewhat conflate the double jeopardy analysis with the same criminal conduct analysis. See State v. French, 157 Wash.2d 593, 611–12, 141 P.3d 54 (2006)(holding that double jeopardy and same criminal conduct analyses are distinct and separate inquiries).

¶ 8 The two analyses are similar. Under double jeopardy analysis, we determine whether one act can constitute two convictions. Under the same criminal conduct analysis, we determine whether two convictions warrant separate punishments. Even though they may be separate, albeit similar, analyses, a determination that a conviction does not violate double jeopardy does not automatically mean that it is not the same criminal conduct. See State v. Tili, 139 Wash.2d 107, 124, 985 P.2d 365 (1999)(finding defendant's three first degree rape convictions did not violate double jeopardy but were part of the same criminal conduct, the court held that Till's criminal intent to commit several rapes did not change from one act of penetration to the next). Since Tili involved a single statutory crime—rape—it is unhelpful here where two crimes are involved.

¶ 9 Looking at the statutes, incest and rape of a child do not have the same statutory criminal intent, whether involving multiple acts or the same act:

9A.44.079 Rape of a child in the third degree. (1) A person is guilty of rape of a child in the third degree when the person has sexual intercourse with another who is at least fourteen years old but less than sixteen years old and not married to the perpetrator and the perpetrator is at least forty-eight months older than the victim.

9A.64.020 Incest. (1)(a) A person is guilty of incest in the first degree if he or she engages in sexual intercourse with a person whom he or she knows to be related to him or her, either legitimately or illegitimately, as an ancestor, descendant, brother, or sister of either the whole or the half blood.

¶ 10 Chenoweth argues that his criminal intent was to have sex with his daughter and thus rape of a child and incest required the same intent. However, objectively viewed, under the statutes, the two crimes involve separate intent. The intent to have sex with someone related to you differs from the intent to have sex with a child. Chenoweth's single act is comprised of separate and distinct statutory criminal intents and therefore under RCW 9.94A.589(1)(a)do not meet the definition of "same criminal conduct."

¶ 11 Chenoweth also argues that the court in Bobenhouse did not reach the issue of whether rape of a child and incest constitute the same criminal conduct for sentencing purposes, relying on a section in the conclusion of the opinion that states, "Any error in not treating Bobenhouse's crimes as the 'same criminal conduct' was harmless." Bobenhouse, 166 Wash.2d at 896–97, 214 P.3d 907. Chenoweth argues that Bobenhouse recognized that counting the offenses separately was error. However, viewed in the context of the statutory analysis and conclusion in Bobenhouse, the "harmless" reference was a reflection of the Court of Appeals' determination that Bobenhouse's offender score exceeded nine and that any holding reached by the Court of Appeals with regard to same criminal conduct would have no effect on his offender score.² Chenoweth's argument also disregards the primary analysis in Bobenhouse that was taken from the holding in Calle: rape and incest are separate crimes and can be punished separately. Calle, 125 Wash.2d at 780, 888 P.2d 155.

¶ 12 As further support for this conclusion, the legislative history supports the "conclusion that the Legislature intended to punish incest and rape as separate offenses, even though committed by a single act." Calle, 125 Wash.2d at 780, 888 P.2d 155. We have held that where legislative intent is clearly indicated, that intent controls the offender score. See Calle, 125 Wash.2d at 778, 888 P.2d 155. Looking at the criminal code, "incest" and "rape of a child" are defined in separate sections—family offenses and sex offenses. They have existed as separate crimes since before statehood. Reasons exist why they could be punished separately—incest being a particularly egregious crime that attacks the very foundation of the family. And, as our cases recognize, no double jeopardy concerns exist in this type of situation where a sentencing judge imposes separate sentences for each conviction as occurred here. It makes little sense to conclude that an otherwise valid conviction and sentence cannot be "counted" in determining an...