State of Washington v. Brett C. Everette

• Court: Court of Appeals of Washington
• Decided: June 25, 2024
• Docket: 57294-0
• Status: Unpublished

Opinion

Filed Washington State Court of Appeals Division Two

June 25, 2024

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

DIVISION II STATE OF WASHINGTON, No. 57294-0-II

Respondent,

v. UNPUBLISHED OPINION

BRETT C. EVERETTE,

Appellant.

CHE, J. ⎯ Brett C. Everette appeals his resentencing after the legislature removed second

degree robbery from the list of most serious offenses.

Everette’s convictions arose from a dispute over a drug payment in 2013. A jury

convicted Everette of attempted first degree kidnapping with a firearm enhancement, felony

harassment with a firearm enhancement, and first degree unlawful possession of a firearm. The

trial court sentenced Everette as a persistent offender to life without the possibility of release

based on the first degree kidnapping conviction and two prior convictions for second degree

robbery. On appeal, we affirmed Everette’s convictions.1

1 State v. Everette, No. 45941-8-II (Wash. Ct. App. Aug. 11, 2015) (unpublished), https:// www.courts.wa.gov/opinions/pdf/D2%2045941-8-II%20Unpublished%20Opinion.pdf. No. 57294-0-II

In 2019, the legislature removed second degree robbery from the list of most serious

offenses, with retroactive effect. At Everette’s resentencing in 2022, the trial court determined

Everette’s felony harassment and attempted first degree kidnapping offenses were not the same

criminal conduct because each required a different mens rea, or criminal intent.

On appeal, Everette argues the trial court erred in finding Everette’s convictions for

felony harassment and attempted first degree kidnapping were not the same criminal conduct and

consequently, sentenced him using the incorrect offender score.

We hold Everette’s crimes of felony harassment and attempted first degree kidnapping

are not the same criminal conduct.

We affirm.

FACTS

Everette and Kendra Swanger were acquaintances of Joey Sanchez-Juarez. Sanchez-

Juarez agreed to trade methamphetamine with Nate Hart for Hart’s vehicle. Sanchez-Juarez did

not “end up paying” Hart, so Hart asked Swanger to retrieve his vehicle from Sanchez-Juarez.

Rep. of Proc. (RP) (Dec. 18, 2013) at 57. Swanger’s retrieval of Hart’s vehicle angered

Sanchez-Juarez who then tried to find Swanger to get the car back.

As part of a plan with Sanchez-Juarez and others, Everette found Swanger at the house

where she was hiding out from Sanchez-Juarez. Everette entered the back bedroom where

Swanger and her boyfriend were staying and asked Swanger about the car. She told him she did

not know anything. Everette became angry, grabbed Swanger’s hair and neck, and threw her

onto the bed.

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Everette stated he “wasn’t afraid to go back to prison . . . to smash [Swanger’s] face in,

[and] to kill [Swanger].” RP (Dec. 18, 2013) at 66. Everette also flashed a gun at Swanger.

Everette said no one could leave and phoned his girlfriend to come and beat up Swanger.

Everette then phoned Sanchez-Juarez to come to the house, saying, “Hurry up, I have ’em. I

know where they’re at.” RP (Dec. 19, 2013) at 21, 157.

When Everette briefly left the room, Swanger and her boyfriend climbed out the window

and ran into an alley. Everette informed Sanchez-Juarez that “[Swanger] got out of the house”

and told him to “[g]et her before she gets to the cops.” RP (Dec. 19, 2013) at 158. Sanchez-

Juarez and other men drove into the alley. Everette instructed the men in the car to take

Swanger, saying, “Finish up with the plans and get her to Rainier Beach.” RP (Dec. 19, 2013) at

158. Sanchez-Juarez pulled Swanger to the ground and, with another person, started dragging

Swanger towards their car before ultimately letting go of her and driving away.

The State charged Everette with attempted first degree kidnapping with a firearm

enhancement,2 felony harassment with a firearm enhancement,3 and first degree unlawful

possession of a firearm. A jury convicted Everette of all counts. The trial court sentenced

Everette to life without possibility of release as a persistent felony offender partially based on

prior convictions for second degree robbery. In 2015, Everette appealed, and we affirmed

Everette’s convictions.

2 The amended information, in part, charged Everette with attempting to intentionally abduct Swanger, “with intent to inflict bodily injury and/or extreme mental distress upon [Swanger], contrary to RCW 9A.40.020(1)(c)(d) and RCW 9A.28.020(1).” Clerk’s Papers (CP) at 9. 3 The amended information, in part, charged Everette with knowingly and unlawfully threatening to kill Swanger, “and by words and conduct, plac[ing] [Swanger] in reasonable fear that the threat would be carried out, contrary to RCW 9A.46.020(1)(a)(i), (1)(b), and (2)(b).” CP at 9.

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In 2019, the legislature removed second degree robbery as a qualifying offense for

persistent offenders and applied the change retroactively.4 LAWS OF 2019, ch. 187 pmbl. Thus,

Everette was entitled to resentencing.

At his resentencing in 2022, the parties disputed Everette’s offender score. Everette

argued the attempted first degree kidnapping and felony harassment were the same criminal

conduct. The State argued Everette had an offender score of 12 for attempted first degree

kidnapping and 9 for the felony harassment and unlawful firearm possession convictions.

Everette argued he had an offender score of 11 on the attempted first degree kidnapping, and 8

for the felony harassment and unlawful possession of a firearm convictions because the offenses

were the same criminal conduct. Everette noted that “acting knowingly” is established “if a

person acts intentionally.” RP (Aug. 12, 2022) at 25; RP (Dec. 20, 2013) at 32.

The trial court determined attempted first degree kidnapping and felony harassment were

not the same criminal conduct because

[w]e have two different levels of criminal intent. Attempted Kidnapping requires intent to kidnap, which requires intentionally abducting another while taking a substantial step toward the furtherance of that crime, while Felony Harassment requires knowingly threatening another person. Thus, one crime requires the mens rea of intent, and the other requires the mens rea of knowledge.

RP (Aug. 12, 2022) at 18. Accordingly, the trial court scored the two counts separately and

sentenced Everette using the State’s proposed offender scores. The court sentenced Everette to

159 months of total confinement.

Everette appeals.

4 In July 2019, the legislature enacted ESSB 5288, “removing robbery in the second degree from the list of offenses that qualify an individual as a persistent offender; and amending RCW 9.94A.030.” LAWS OF 2019, ch. 187 pmbl.

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ANALYSIS

Everette argues the felony harassment and attempted first degree kidnapping offenses

were the same criminal conduct and should have been counted as a single point in his offender

score. Everette claims he is entitled to a new resentencing because of his miscalculated offender

score. We disagree.

A. Legal Principles

We do not disturb a trial court’s determination of same criminal conduct absent an abuse

of discretion or misapplication of the law. State v. Westwood, 2 Wn.3d 157, 162, 534 P.3d 1162

(2023). There is no abuse of discretion where the record adequately supports the trial court’s

decision. State v. Aguilar, 27 Wn. App. 2d 905, 934, 534 P.3d 360 (2023).

Same criminal conduct requires the offenses to have the same criminal intent, occur at the

same time and place, and have the same victim. RCW 9.94A.589(1)(a). All three elements must

be present for separate offenses to qualify as the same criminal conduct. Westwood, 2 Wn.3d at

162. An absence of any one element precludes a finding of same criminal conduct. Id. We

construe the same criminal conduct statute narrowly to disallow most same criminal conduct

claims. State v. Wilson, 136 Wn. App. 596, 613, 150 P.3d 144 (2007).

“If the objective intent for the offenses were the same or similar, courts can then look at

whether the crimes furthered each other and were part of the same scheme or plan.” Westwood,

2 Wn.3d at 168. Our Supreme Court has consistently rejected considering the defendant’s

subjective intent, finding it irrelevant. Id. at 165.

In Westwood, our Supreme Court considered whether the defendant’s convictions for first

degree assault, attempted first degree rape, and first degree burglary constituted the same

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criminal conduct. Id. at 168. In doing so, the Court applied an objective intent analysis in which

it relied on the statutory definitions of the crimes to determine objective intent. Id. at 167. “The

statutory intent is relevant in determining whether the objective intent prong is satisfied.

Looking to any other source of intent has the potential to lean too closely to the subjective

analysis that we have always rejected.” Id. Because the statutory definitions of intent for each

crime were different, it held that Westwood’s crimes did not have the same objective intent. See

Id. at 168-69.

B. Everette’s Crimes Do Not Share the Same Criminal Intent

Everette argues that the trial court abused its discretion in relying on only the statutory

intent, not Everette’s objective intent, to assess same criminal conduct. Specifically, Everette

posits his crimes shared the same objective intent because the threats constituting felony

harassment were used to effectuate the attempted first degree kidnapping. Everette asserts that

the mens rea required for each of his crimes—intent and knowledge—are definitionally the

same. We disagree.

Attempted first degree kidnapping requires intent to commit the crime of kidnapping,

which, in relevant part, requires “intentionally abduct[ing] another person with intent: . . . (c) To

inflict bodily injury on [them]; or (d) To inflict extreme mental distress on [them], or a third

person.” RCW 9A.28.020; RCW 9A.40.020 (emphasis added). “Abduct” means “to restrain a

person by either (a) secreting or holding [them] in a place where [they] [are] not likely to be

found, or (b) using or threatening to use deadly force.” RCW 9A.40.010(1). “Restrain” means

“to restrict a person’s movements without consent and without legal authority in a manner which

interferes substantially with his or her liberty.” RCW 9A.40.010(6).

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Harassment, in relevant part, requires “knowingly threaten[ing]: (i) To cause bodily injury

immediately or in the future to the person threatened or to any other person; . . . and (b) The

person by words or conduct places the person threatened in reasonable fear that the threat will be

carried out.” RCW 9A.46.020(1)(a)(i), (1)(b) (emphasis added). Harassment is elevated to a

class C felony when it involves a threat to kill the person or any other person. RCW

9A.46.020(2)(b)(ii). Notably, Everette was not charged with harassment under RCW

9A.46.020(1)(a)(iii), which requires “subject[ing] the person threatened or any other person to

physical confinement or restraint.”

“A person acts with intent or intentionally when he or she acts with the objective or

purpose to accomplish a result which constitutes a crime.” RCW 9A.08.010(1)(a). “A person

knows or acts knowingly or with knowledge when: (i) [They are] aware of a fact, facts, or

circumstances or result described by a statute defining an offense; or (ii) [They have] information

which would lead a reasonable person in the same situation to believe that facts exist which facts

are described by a statute defining an offense.” RCW 9A.08.010(1)(b)(i)-(ii).

Here, when viewed objectively, the criminal intents for both crimes are not the same.

Everette’s attempted first degree kidnapping charge requires the objective intent to commit the

crime of kidnapping, while his charged subsection of felony harassment requires the objective

intent to knowingly threaten to kill someone. RCW 9A.28.020; see also Westwood, 2 Wn.3d at

168. Because the objective intent for Everette’s crimes were not the same nor similar, we do not

look at whether the crimes furthered each other and were part of the same scheme or plan. Id. at

168.

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Even if we agree with Everette’s argument that, definitionally, knowledge is established

if intent is established, Everette’s argument that his felony harassment had the same objective

intent as attempted first degree kidnapping is unpersuasive. This is because attempted first

degree kidnapping requires intent to commit the crime of kidnapping. See id. at 168. Felony

harassment does not statutorily share an objective intent to kidnap. RCW 9A.46.020. An intent

to abduct is not required to establish Everette’s felony harassment, but it is required to establish

Everette’s attempted first degree kidnapping. Thus, Everette’s crimes do not share the same

objective intent.

Next, Everette argues his objective intent behind threatening Swanger was to abduct her,

making his objective intent for both offenses the same. However, this stands contrary to the

objective intent of felony harassment, which is to knowingly threaten to kill another. RCW

9A.46.020. Moreover, Everette’s argument appears to focus on his subjective intent, while

caselaw makes clear that the test is an objective one. Thus, in construing RCW 9.94A.589

narrowly, the crimes are not the same criminal conduct, and Everette is not entitled to a new

resentencing.5

5 Because Everette’s crimes do not share the same criminal intent, they do not constitute the same criminal conduct, and we do not address whether the crimes occurred at the same time and place, and had the same victim. Furthermore, Everette’s brief fails to address these elements, although the State briefly argues that the offenses occurred at different times and places despite having the same victim.

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CONCLUSION

A majority of the panel having determined that this opinion will not be printed in the

Washington Appellate Reports, but will be filed for public record in accordance with RCW

2.06.040, it is so ordered.

Che, J. We concur:

Maxa, P.J.

Price, J.