State v. Westwood

534 P.3d 1162

STATE of Washington, Petitioner,

v.Dahndre Kavaugn WESTWOOD, Respondent.

No. 100570-9

Supreme Court of Washington, En Banc.

Filed: September 7, 2023

Kevin James McCrae, Grant County Prosecutor's Office, 35 C St. Nw, P.O. Box 37, Ephrata, WA, 98823-0037, for Petitioner.

Nancy P. Collins, Washington Appellate Project, 1511 3rd Ave. Ste. 610, Seattle, WA, 98101-3647, for Respondent.

JOHNSON, J.

¶1 In 1987, the legislature amended the sentencing law to add a definition of "same criminal conduct" as "two or more crimes that require the same criminal intent, are committed at the same time and place, and involve the same victim." RCW 9.94A.589(1)(a) ; former RCW 9.94A.400(1)(a) (1984). Before this amendment, courts used the "same objective intent" test to determine whether a defendant's actions constituted same criminal conduct for sentencing purposes. State v. Dunaway , 109 Wash.2d 207, 743 P.2d 1237, 749 P.2d 160 (1987). Following the amendment, this court determined that the objective intent test from Dunaway continued to be part of the same criminal conduct analysis for defining "same criminal intent." Postamendment cases have consistently applied the Dunaway test, requiring that courts look to the objective statutory criminal intent of the crimes charged, as did the court in State v. Chenoweth , 185 Wash.2d 218, 370 P.3d 6 (2016).

¶2 Some lower courts have found conflict between the analysis in Dunaway and that in Chenoweth . We take this opportunity to provide guidance on the relationship between these cases and find that no conflict exists between these preamendment and postamendment cases. We hold that the objective statutory intent analysis is the proper test. We affirm the sentencing court's decision and reverse the Court of Appeals.

FACTS

¶3 The parties do not dispute the material facts. Dahndre Westwood entered A.B.’s house around 4:30 a.m. A.B. saw Westwood standing in her hallway and holding a knife in his hand. A.B. yelled at him to get out, but Westwood pushed A.B. into her room and onto her bed. Westwood told her to get undressed and threatened to kill her if she did not cooperate. A.B. screamed for help and pleaded for her life; she clawed at Westwood and knocked the knife out of his hand. During the struggle, Westwood nicked A.B. with the knife, leaving a scar on her cheek. Westwood choked and suffocated A.B. to muffle her screams for help and hit her repeatedly on the head.

¶4 Several cars passed A.B.’s house while this transpired, and the headlights shone in the window. Westwood stopped his assault after the second or third set of headlights passed. He threatened A.B. that if she told anyone about the assault he would come back to kill her. Westwood then ran into the living room and out the front door. A.B. called 911 and was taken to the hospital by first responders shortly after.

¶5 At trial, a jury convicted Westwood of attempted rape in the first degree, assault in the first degree, assault in the second degree,¹ and burglary in the first degree. At sentencing, Westwood argued that his convictions encompassed the same criminal conduct for scoring purposes. The State disagreed and asked the court to apply the analysis from Chenoweth . The trial court determined that the three convictions did not constitute the same criminal conduct because each of the crimes required a different statutory intent.

¶6 Westwood appealed, arguing that Dunaway controlled. The Court of Appeals, Division Three, in an unpublished decision, remanded the case to the trial court for determination of whether the convictions encompassed the same criminal conduct under the analysis of Dunaway . The court noted that Chenoweth was limited to cases of rape and incest. State v. Westwood , No. 35792-9-III, slip op. at 13, 2020 WL 1650714 (Wash. Ct. App. Mar. 19, 2020) (unpublished), https://www.courts.wa.gov/opinions/pdf/357929_unp.pdf.

¶7 In April 2020, before the trial court could decide the new sentence on remand, the Court of Appeals, Division Two, issued State v. Johnson , 12 Wash. App. 2d 201, 460 P.3d 1091 (2020), aff'd , 197 Wash.2d 740, 487 P.3d 893 (2021). In Johnson , the court applied Chenoweth outside the context of child rape and incest.

¶8 On remand, the State again argued that the test from Chenoweth is correct. The trial court again agreed and concluded that the defendant did not prove that the crimes constituted same criminal conduct. Westwood again appealed. The Court of Appeals, Division Three, acknowledged the conflict with Johnson but reversed and remanded Westwood's sentence with directions to apply Dunaway . State v. Westwood , 20 Wash. App. 2d 582, 591-92, 500 P.3d 182 (2021). The State then sought review by this court, which we granted. State v. Westwood , 199 Wash.2d 1030, 2022 WL 20701854 (2022).

ANALYSIS

¶9 The legislature updated the Sentencing Reform Act of 1981 (SRA), ch. 9.94A RCW, in 1987, to clarify how courts will determine an offender score and whether sentences will be served consecutively or concurrently. The relevant section now reads:

(1)(a) Except as provided in (b), (c), or (d) of this subsection, whenever a person is to be sentenced for two or more current offenses, the sentence range for each current offense shall be determined by using all other current and prior convictions as if they were prior convictions for the purpose of the offender score: PROVIDED, That if the court enters a finding that some or all of the current offenses encompass the same criminal conduct then those current offenses shall be counted as one crime. Sentences imposed under this subsection shall be served concurrently. ... "Same criminal conduct," as used in this subsection, means two or more crimes that require the same criminal intent, are committed at the same time and place, and involve the same victim.

RCW 9.94A.589.

¶10 The amendment established three elements for a finding of same criminal conduct: same criminal intent, same time and place, and same victim. For separate offenses to qualify as the same criminal conduct, all three elements must be present; an absence of any one precludes a finding of same criminal conduct. State v. Porter , 133 Wash.2d 177, 181, 942 P.2d 974 (1997). The default method of calculating an offender score is to treat all current convictions as separate and distinct criminal conduct. The burden of production and persuasion thus lies on the defendant to establish that each element is met and their crimes constitute the same criminal conduct. State v. Aldana Graciano , 176 Wash.2d 531, 539-40, 295 P.3d 219 (2013). The sentencing court has discretion to determine whether the defendant has met their burden. "[A] sentencing court's determination of same criminal conduct will not be disturbed absent an abuse of discretion or misapplication of the law." Aldana Graciano , 176 Wash.2d at 541, 295 P.3d 219.

¶11 In this case, the second and third elements of same criminal conduct are clearly satisfied. Only the first element, same criminal intent, is disputed. Since courts have differed in their application of Chenoweth and Dunaway , we take this opportunity to clear up any confusion and clarify the proper analysis for "same criminal intent."

¶12 Prior to the amendment to the SRA defining "same criminal conduct," this court interpreted the term in Dunaway . The Dunaway court did not apply the amendment because the events in each of the consolidated cases occurred prior to the effective date of the amendment and the court declined to give the amendment retroactive effect. However, we stated definitively that the test for same criminal conduct is an objective intent analysis. The court looked at the statutory criminal intent of each of the offenses and whether the crimes furthered each other. We also expressly rejected a focus on the defendant's subjective intent and declined to consider whether the defendants actually had a consistent intent throughout their crimes. Dunaway , 109 Wash.2d at 216-17, 743 P.2d 1237, 749 P.2d 160 .

¶13 Looking closely at the Dunaway court analysis, we reversed the trial court determination that two counts of kidnapping and two counts of robbery against two separate victims were not the same criminal conduct. Important to our conclusion was the statutory connection between the robbery and the first degree kidnapping. We said, "Indeed, it was Dunaway's very intent to commit robbery that enabled the prosecutor to raise the charge from second degree to first degree kidnapping. RCW 9A.40.020(1)(b) ; RCW 9A.40.030. Therefore, robbery was the objective intent behind both crimes." Dunaway , 109 Wash.2d at 217, 743 P.2d 1237, 749 P.2d 160. The court's reasoning focused on the statutory definition of intent for each of the crimes to support its conclusion. The Dunaway court specifically cited to the criminal statutes because they were relevant to the test.

¶14 Making this point clearer, the objective test articulated in Dunaway , that is, the focus on the statutory definitions, is shown by what the Dunaway court concluded in the consolidated cases, State v. Green , 46 Wash. App. 92, 730 P.2d 1350 (1986), and State v. Franklin , 46 Wash. App. 84, 729 P.2d 70 (1986), which involved two separate Court of Appeals conclusions that robbery and attempted murder convictions did constitute same criminal conduct. The Court of Appeals in both cases utilized a continuous course of conduct type of analysis, essentially holding that all crimes committed during a crime spree are one. We reversed and rejected that reasoning.

¶15 We again focused on the statutory language. We said:

Green and Franklin each committed armed robbery and then each attempted to murder his victim. The murders were attempted after receiving the money but before leaving the premises. When viewed objectively, the criminal intent in these cases was substantially different: the intent behind robbery is to acquire property while the intent behind attempted murder is to kill someone. RCW 9A.56.190 ; RCW 9A.32.030. The

...