State v. House

553 P.3d 1157

STATE of Washington, Respondent,

v.James Ray HOUSE, Jr., Appellant.

No. 39161-2-III

Court of Appeals of Washington, Division 3.

Filed August 15, 2024

Appeal from Spokane Superior Court, Docket No: 20-1-03170-5, Honorable Annette S. Plese, Judge.

Oliver Ross Davis, Washington Appellate Project, 1511 3rd Ave. Ste. 610, Seattle, WA, 98101-1683, for Appellant.

Joseph Timothy Edwards, Spokane County Prosecuting Attorney’s Office, 1100 W. Mallon Ave. Spokane, WA, 99260-2043, for Respondent.

PUBLISHED OPINION

Fearing, J.

¶1 We struggle once again to make sense out of the concepts of "same criminal conduct" and "same criminal intent" as expressed in RCW 9.94A.589(1)(a) and as interpreted by the Washington Supreme Court. James House pled guilty to first degree burglary, indecent liberties, second degree assault, and unlawful imprisonment. House committed all offenses against his former girlfriend and mother of his children during the early morning hours of September 17, 2020. At sentencing, the trial court ruled that the burglary and assault convictions constituted the same criminal conduct for purposes of calculating House’s offender score. On appeal, House contends the sentencing court should have also adjudged the indecent liberties and unlawful imprisonment offenses as the same criminal conduct as the assault and burglary. He further contends the trial court failed to determine whether an earlier conviction for harassment was the same course of conduct as a residential burglary committed on the same date and sentenced at the same time.

FACTS

¶2 James House incurred convictions relevant to this appeal before committing his crimes against his girlfriend on September 17, 2020. The plea agreement signed by James House, in the current prosecution, listed the following earlier convictions:

1.4 PROSECUTOR'S UNDERSTANDING OF DEFENDANTS CRIMINAL HISTORY (RCW 9.94A.525):

Crime	Date of Crime	Crime Type	Adult or Juv	Place of Conviction	Sent Date
RES BURGLARY	011196	NV	A	KING CO, WA	030395
HARASSMENT	011196	NV	A	KING CO, WA	030396
ASSAULT 3	063094	NV	A	KING CO, WA	090984
ASSAULT 2	082587	VIOL	A	KING CO, WA	121487
ROBBERY 2	022484	VIOL	A	KING CO, WA	080284
DV ASSAULT	041813	MISD.	A	SPOKANE CO, WA	071713
DV ASSAULT 4	120704	MISD.	A	GRANT CO, WA	011906
PV ASSAULT 4	071497	MISD.	A	SPOKANE CO, WA	010600
DV VIOL NCO	061094	MISD.	A	KING CO, WA	100698
DV VIOL NCO	032594	MISD.	A	KING CO, WA	100896

Clerk’s Papers (CP) at 124-25. The convictions for residential burglary and harassment on January 11, 1995 bear particular importance in this appeal.

¶3 This appeal still focuses on the crimes committed in September 2020. Although the only issues on appeal concern sentencing, we outline the underlying facts behind the September 2020 crimes in order to analyze James House’s challenge to his offender score. Under House’s theory of the law, the underlying facts assist in determining same criminal conduct.

¶4 The prosecution against James House arose from his relationship with his girlfriend C.M. C.M. was 19 years old, in 2013, when she met James House, then 47 years old. The couple, who never married, begot three children during their seven-year association.

¶5 In August 2020, James House and C.M. separated, at which time House moved from the family residence. On an unidentified day during the first week of September 2020, House returned to the home and delivered C.M. $100. During this visit, House repeatedly asked for sex, which entreaties C.M. declined. House grabbed C.M.’s pants, forced her down, and engaged her in oral sex without her consent.

¶6 On the evening of September 16, 2020, C.M. was home with the children. House sent C.M. texts expressing his intent to journey to the home to give her money. C.M. responded that he was not welcome and not to come. C.M. disclosed she was expecting a man to visit that night. House announced he planned to come anyway.

¶7 On September 16, C.M., as a result of the earlier sexual assault, messaged her current boyfriend, Kerry Kinnon, that House intended to visit the home uninvited. She also attempted to contact her brother to ask that he come to the home to protect her. We assume that C.M. failed to reach her brother, but the record does not confirm such. When House had not appeared by 10 p.m., C.M. retired to bed in her room as her children slept on living room couches.

¶8 James House entered the residence at 1:37 a.m., on September 17, through use of a key he copied without C.M.’s knowledge. C.M. awoke to House, armed with a knife, crying inside her bedroom. House protested his love for C.M. and expressed jealousy. House threatened to kill any man, with whom she socialized.

¶9 James House walked with C.M. to the living room, where the two spoke. We assume the children continued to sleep in the living room. C.M. told House to leave multiple times. House enveloped C.M. in a choke-hold and dragged her to the bedroom. The choke blocked C.M.’s airway such that she could not breathe. C.M. lost vision. She went in and out of consciousness several times during the strangulation. C.M.’s tongue protruded from her mouth. She bit on the tongue so hard, she thought she might have bitten it off, but her mouth refused to respond to an internal command to stop. C.M. lost control of her bowels and defecated. C.M. estimates House strangled her for ten minutes. She concluded she would perish.

¶10 C.M. finally could communicate to James House that she had defecated and asked him to release her so she could clean herself. House uttered that he did not care, and he resumed the choking, this time for two minutes. House tearfully commented to C.M. that he choked her because of his love for her.

¶11 James House eventually released C.M., and she entered the bathroom to wash. From the restroom, C.M. saw House remove and unsheathe a large, fixed-blade knife. C.M., from the bathroom, inquired from House of his intentions. A sobbing House announced that he had come to the home to kill her, but he had now decided not to do so. C.M. believed that House would kill her, and she begged for her life. She told House he could not kill the mother of his children. House responded with the familiar refrain that, if he could not have her, nobody could.

¶12 James House directed C.M. to exit the bathroom and lie on the bed. C.M. complied and asked House to remove his coat and inter the knife. House deposited the knife in his coat pocket and shed his coat. He performed oral sex on C.M. without her consent. After thirty seconds, a nervous and sweating House stood and announced that he "could not do it." CP at 159. House then penetrated C.M.’s vagina with a sexual device and without her consent. C.M., in an endeavor to end the death threats, told House to engage her in sexual intercourse. House declined. At C.M.’s suggestion, the two entered the bedroom closet and smoked cigarettes.

¶13 After smoking, C.M. returned to the bathroom to finish cleansing herself. C.M. heard her cell phone vibrating in the bedroom, which sound represented an incoming call. Earlier on the morning of September 17, C.M.’s male friend, Kerry Kinnon, had retrieved C.M.’s text message that James House intended to come to her apartment. Kinnon called 911. Kinnon called C.M.’s phone eight times between 2:19 and 2:40 a.m.

¶14 C.M. also heard a key at the front door. C.M. saw that James House also heard the noise so she shut and locked the bathroom door. Unbeknownst to C.M. and House, Kerry Kinnon, attempted to enter the residence. House crashed the bathroom door and, while holding a knife, rushed toward C.M. C.M. yelled: " ‘James, don’t kill me!’ " hoping the person at the front door, who she believed was Kinnon, would hear. CP at 160. House stood behind C.M., restrained C.M. with one hand, held the knife in the other hand at her waist, and warned her not to " ‘say shit.’ " CP at 160.

¶15 James House walked C.M. to the front door and looked through the peephole. House saw no one outside. C.M. donned boxer shorts that she retrieved from the nearby laundry room. House walked C.M. through the children’s bedroom. He lit a lighter and gazed through the room for anyone hiding. He remarked that people were coming for him. House added that he faced prison for attempted murder and kidnapping. House declared: " ‘Even if I don’t kill you, I’m still going to prison.’ " CP at 160.

¶16 C.M. once again attempted to calm James House, and she suggested the two lay on the bed. House said no and expressed again a desire for sex. House performed oral sex a second time on C.M. without her permission. He ceased the activity and asked C.M. if she wanted him to leave or have sex. House unexpectedly announced he would leave. C.M., hoping to hasten House’s exit, awoke the children to tell him goodbye. House then refused to leave. C.M. directed House to return to the bedroom and lie on the bed.

¶17 C.M. pivoted to the bedroom and reclined on the bed. James House followed and sat on the couch next to the bed. House rested his hand that gripped the knife near C.M. She asked why he placed the knife near her. House explained: " ‘I’m telling you right now if the cops come, I’m going to stab you in the eyes and kill you.’ " CP at 160. C.M. cried and again pleaded for her life. She insisted that no police were coming.

¶18 Minutes later, sounds emanated from the front door. The door opened and law enforcement officers yelled: " ‘Spokane Police!’ " CP at 160. James House reflexively moved the knife toward C.M.’s face. C.M. lifted her left arm up to block House’s fore-arm. C.M. suffered multiple stab wounds to her face and hands. House stopped the attack when police entered the bedroom.

¶19 Multiple Spokane police officers had arrived at C.M.’s apartment and forcibly entered the home. Officers heard C.M. frantically screaming from a back bedroom. Police found James House on top of C.M. on the bed. Police separated House from C.M. C.M. spoke in a whisper as she complained of throat pain. C.M.’s tongue suffered deep bruises along the left side of her tongue.

¶20 To...