FILED MARCH 15, 2018 In the Office of the Clerk of Court WA State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE
STATE OF WASHINGTON, ) ) No. 34753-2-III Respondent, ) ) v. ) ) UNPUBLISHED OPINION CHRISTOPHER GLEN STANDLEY, ) ) Appellant. )
SIDDOWAY, J. — Christopher Glen Standley appeals his convictions following a
bench trial for five crimes committed during a roughly 12-hour-long drug- or withdrawal-
fueled spree. He challenges the sufficiency of the evidence and the trial court’s findings
on four counts, claims a violation of his constitutional protection against double jeopardy,
and contends his trial lawyer provided ineffective representation by not arguing at
sentencing that three of his crimes amounted to the same criminal conduct.
The State reasonably concedes that two of the trial court’s convictions for second
degree assault violate the protection against double jeopardy, and we remand with
directions to vacate Mr. Standley’s conviction for one of the counts. While the evidence
was sufficient to support the remaining convictions, the trial court’s findings fall short of
supporting its conclusion that four of the counts were proved. We remand with directions No. 34753-2-III State v. Standley
to the trial court either to make further findings in support of its convictions on those
counts or to vacate those convictions. We otherwise affirm.
FACTS AND PROCEDURAL BACKGROUND
The State charged Christopher Standley with eight crimes, some in the alternative,
for a series of crimes committed against his former girlfriend and their drug dealer on
February 27, 2016. Mr. Standley does not assign error to most of the trial court’s
findings of fact,1 on which we largely base the following factual background.
The first crime was Mr. Standley’s assault of his former girlfriend, Amanda
Hedrick. It took place in her car, where she and Mr. Standley, then essentially homeless,
were spending the night. For an hour, enraged because he believed Ms. Hedrick had
taken more than her share of heroin purchased from their dealer, Mason Beeman, Mr.
Standley brutally attacked her. He beat her with his closed fists, her boots, and a can of
food, and poked her repeatedly with a metal pin. There was also evidence at trial that
while intermittently smoking methamphetamine, he threatened to stab her with his knife.
He told her to write a letter to her family because she would be dead before sunrise if she
tried to leave or contact the police. Ms. Hedrick testified at trial that the car was locked
during the assault, and Mr. Standley would not let her leave.
1 He assigns error to only findings of fact 18 and 19. Br. of Appellant at 1.
2 No. 34753-2-III State v. Standley
The next morning, Mr. Standley required Ms. Hedrick to join him on a forced
march across town to Mr. Beeman’s home. According to Ms. Hedrick, Mr. Standley
wanted to go there to “get to the bottom of why [the heroin] looked short.” Report of
Proceedings (RP) at 110. At one point during their trek, Mr. Standley told Ms. Hedrick
she needed to prostitute herself to get money to pay what she owed him, going so far as
to point out a man she should approach to offer sex for money.
Once at Mr. Beeman’s home, Mr. Standley and Ms. Hedrick entered, Mr. Standley
accused Mr. Beeman of shorting him, and the two men argued and then fought. Although
Mr. Beeman testified he was eventually able to throw Mr. Standley out of his room, it
was not before Mr. Standley struck Mr. Beeman’s face with a small knife. Mr. Beeman
was hospitalized in intensive care for several days as a result. Ms. Hedrick was also
taken to the hospital, having sustained facial bruising and chipped teeth.
In an amended information, the State charged Mr. Standley with the following
eight crimes, some charged in the alternative, as indicated:
Count 1: Assault in the First Degree of Mr. Beeman under RCW 9A.36.011(1)(a) (assault with intent to inflict great bodily harm, with a firearm or any deadly weapon or force or means likely to produce great bodily harm or death) OR IN THE ALTERNATIVE, Count 2: Assault in the Second Degree of Mr. Beeman under RCW 9A.36.021(1)(a) (intentional assault that recklessly inflicts substantial bodily harm), OR IN THE ALTERNATIVE,
3 No. 34753-2-III State v. Standley
Count 3: Assault in the Second Degree of Mr. Beeman under RCW 9A.36.021(1)(c) (assault with a deadly weapon), Count 4: Assault in the First Degree of Ms. Hedrick under RCW 9A.36.011(1)(c) (assault with intent to inflict great bodily harm that does inflict great bodily harm) OR IN THE ALTERNATIVE Count 5: Assault in the Second Degree of Ms. Hedrick under RCW 9A.36.021(1)(a) (intentional assault that recklessly inflicts substantial bodily harm), Count 6: Attempt to Promote Prostitution in the First Degree under RCW 9A.88.070, 9A.28.020(1), Count 7: Felony Harassment of Ms. Hedrick under RCW 9A.46.020(2)(b)(ii) (threat to kill), and Count 8: Unlawful Imprisonment of Ms. Hedrick under RCW 9A.40.040.
For the counts involving the assault on Mr. Beeman (counts 1 through 3), the State
included a special allegation that Mr. Standley was armed with a deadly weapon. For
counts 4, 5, 7 and 8 involving Ms. Hedrick, the State included a special allegation of
domestic violence.
Mr. Standley’s two-day bench trial was completed on a Friday and the court
delivered its oral ruling the following Monday. It found Mr. Standley guilty of only a
second degree assault of Mr. Beeman, finding him guilty of both counts two and three. It
found him not guilty of the deadly weapon enhancement. It found him guilty of only a
second degree assault of Ms. Hedrick, with a domestic violence finding. It found him
guilty of the remaining charges of attempted first degree promoting prostitution, felony
harassment, and unlawful imprisonment.
4 No. 34753-2-III State v. Standley
Written findings and conclusions were presented by the State at the time of
sentencing. Mr. Standley appeals.
ANALYSIS
We accept the State’s concession that Mr. Standley’s convictions for both means
of the second degree assault of Mr. Beeman charged in counts 2 and 3 violated his
guaranty against double jeopardy. We remand with directions to vacate one of the
convictions.
Mr. Standley’s remaining arguments on appeal are first, that the trial court’s
findings of fact do not support its conclusion of guilt on four counts and with respect to
one of those counts, the evidence is insufficient; and, second, that his offender score and
sentencing range were incorrect due to a failure to treat three of his crimes as same
criminal conduct. He challenges the allegedly erroneous offender score and sentencing
ranges as both trial court error and the result of ineffective assistance of counsel. We
address the claimed errors in the order stated.
Insufficient evidence and findings
Mr. Standley contends the trial court’s findings are insufficient to support its
conclusions that the State proved him guilty of attempted first degree promotion of
prostitution, the second degree assaults of Mr. Beeman and Ms. Hedrick, and felony
harassment.
5 No. 34753-2-III State v. Standley
Following a bench trial, a trial court need not make findings on all the evidence
introduced, but its findings need to address all ultimate facts and material issues. State v.
Mewes, 84 Wn. App. 620, 622, 929 P.2d 505 (1997). “Ultimate facts are the essential
and determining facts upon which the conclusion rests and without which the judgment
would lack support in an essential particular.” Wold v. Wold, 7 Wn. App. 872, 875, 503
P.2d 118 (1972). In the absence of a finding on a material factual issue, we ordinarily
presume the party with the burden of proof failed to sustain its burden. State v. Armenta,
134 Wn.2d 1, 14, 948 P.2d 1280 (1997). But if a trial court’s findings are insufficient yet
it unequivocally concluded a crime was proved and the evidence was sufficient to prove
the crime’s essential elements, the remedy is to remand. See State v. Webb, 147 Wn.
App. 264, 270-71, 195 P.3d 550 (2008). The trial court can then correct any oversight in
making essential findings or, if there was no oversight, it must vacate the conviction.
Mr. Standley concedes that the missing findings in support of the assault and the
felony harassment convictions might have been an oversight. With respect to the
attempted first degree promotion of prostitution charge, however, he argues that the
evidence is insufficient.
Attempted first degree promotion of prostitution
RCW 9A.88.070(1) provides in relevant part that “[a] person is guilty of
promoting prostitution in the first degree if he or she knowingly advances prostitution: (a)
by compelling a person by threat or force to engage in prostitution.” Mr. Standley’s
6 No. 34753-2-III State v. Standley
argument on appeal focuses on the specific intent required for criminal attempt. “A
person is guilty of an attempt to commit a crime if, with intent to commit a specific crime,
he or she does any act which is a substantial step toward the commission of that crime.”
RCW 9A.28.020(1) (emphasis added). Mr. Standley contends the State’s evidence
proved at most equivocal intent, arguing:
The facts suggest Mr. Standley intended to shame Hedrick and to vent his anger, not to get her to engage in prostitution. He may also have believed he could test her veracity or force her to confess by threatening to force her to prostitute herself. However, his actions show he did not intend for her to engage in prostitution. If his true aim had been to compel her to engage in prostitution, her refusal would have prompted him to use additional force or threats: the evidence showed he had no qualms about physical violence.
Br. of Appellant at 9 (citation omitted).
“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).
“[I]ntent may be inferred from circumstantial evidence.” State v. Caliguri, 99 Wn.2d
501, 506, 664 P.2d 466 (1983). Additionally, “a trier of fact may infer that a defendant
intends the natural and probable consequences of his or her acts.” Id.
In orally announcing its findings and conclusions, the trial court said:
The [Court] finds that [Mr. Standley commanded Ms. Hedrick to sell herself] in all seriousness and it was not puffery and he was not joking. The Court finds the Defendant attempted to force Ms. Hedrick to engage in prostitution by threat or force as he was not making a mere request, rather he was demanding that she engage in prostitution and these demands were made within the events in which he terrorized and repeatedly, brutally and
7 No. 34753-2-III State v. Standley
violently attacked her. This was an attempt to compel her into an act of submission and prostitution by threat or force. [Mr. Standley] is guilty on Count 6.
RP at 336-37.
Ms. Hedrick testified clearly and unequivocally that Mr. Standley demanded she
engage in prostitution. Mr. Standley’s contention that he was not serious is nonetheless
one inference that can be drawn from the evidence. But another inference that can be
drawn is that Mr. Standley was serious, yet would not risk committing an assault in
public in the light of day. A further inference that can be drawn and appears to have been
drawn by the trial court in its oral ruling, is that Mr. Standley believed a verbal demand
would suffice in light of his brutalization of Ms. Hedrick that preceded it.
The evidence supports the trial court’s findings relevant to the first degree
promotion of prostitution charge (count 6) to which Mr. Standley assigns error:
18. During the walk, Mr. Standley struck Ms. Hedrick at least once, and told her that she would have to prostitute herself to make money that she owed him; 19. At one point, Mr. Standley identified a male individual and told Ms. Hedrick that she needed to approach him and offer to sell him sexual favors. Ms. Hedrick refused to do so.
Clerk’s Papers at 23. The evidence is also sufficient to support a finding that Mr.
Standley acted with the specific intent to compel Ms. Hedrick by threat or force to engage
in prostitution. Because the omission of a finding of specific intent might have been an
oversight, remand of count 6 is appropriate.
8 No. 34753-2-III State v. Standley
Assaults and felony harassment
Mr. Standley argues that the trial court’s findings are insufficient to support his
convictions for the second degree assaults of Mr. Beeman and Ms. Hedrick under RCW
9A.36.021(1)(a) (counts 2 and 5, respectively) because there was no finding that Mr.
Standley recklessly inflicted substantial bodily harm on either of them. Br. of Appellant
at 10. Because the record contains evidence sufficient to support a finding that Mr.
Standley recklessly inflicted substantial bodily harm on Mr. Beeman and Ms. Hedrick,
remand of counts 2 and 5 is appropriate.
Mr. Standley argues that the trial court’s findings are insufficient to support his
conviction for felony harassment under RCW 9A.46.020 (count 7) because there were no
findings that Mr. Standley threatened to kill Ms. Hedrick or that his statements met the
definition of a “true threat.” Br. of Appellant at 11-12. To prove a “true threat,” which is
required by constitutional speech protections, the State must prove that “‘a reasonable
person would foresee the statement would be interpreted as a serious expression of
intention to inflict bodily harm upon or take the life of another person.’” Id. (quoting
State v. Schaler, 169 Wn.2d 274, 283, 236 P.3d 858 (2010)). Here again, because the
record contains evidence sufficient to support such findings, remand of count 7 is
appropriate.
9 No. 34753-2-III State v. Standley
Challenges to offender score and sentencing range
Alleged trial court error
For the first time on appeal, Mr. Standley argues that the trial court should have
scored the three crimes that he committed against Ms. Hedrick in her car (second degree
assault, unlawful imprisonment, and felony harassment) as the same criminal conduct. In
the trial court, Mr. Standley’s trial lawyer agreed with the offender scores identified on
the State’s proposed judgment and sentence.
A trial court calculates a defendant’s offender score for sentencing purposes by
counting current offenses and past convictions. RCW 9.94A.589(1)(a). The offender
score for a given current offense includes all other current offenses unless the trial court
finds “that some or all of the current offenses encompass the same criminal conduct.” Id.
In that event, those current offenses are counted as one crime in arriving at the offender
score. Id. Offenses constitute the same criminal conduct if they “require the same
criminal intent, are committed at the same time and place, and involve the same victim.”
Id. All three criteria must be present. State v. Lessley, 118 Wn.2d 773, 778, 827 P.2d
996 (1992).
“Deciding whether crimes involve the same time, place, and victim often involves
determinations of fact,” and it is well settled that “a court’s determination of same
criminal conduct will not be disturbed unless the sentencing court abuses its discretion or
misapplies the law.” State v. Chenoweth, 185 Wn.2d 218, 220-21, 370 P.3d 6 (2016).
10 No. 34753-2-III State v. Standley
For issues that involve discretion, a failure to raise the issue in the trial court operates as a
waiver. In re Pers. Restraint of Goodwin, 146 Wn.2d 861, 874, 50 P.3d 618 (2002). A
trial court is not required to undertake a same criminal conduct analysis sua sponte. State
v. Nitsch, 100 Wn. App. 512, 524-25, 997 P.2d 1000 (2000). We will not entertain Mr.
Standley’s unpreserved challenge to the trial court’s calculation of his offender score.
Ineffective assistance of counsel
Alternatively, Mr. Standley argues that his trial lawyer’s failure to request a
finding of same criminal conduct constituted ineffective assistance of counsel.
Ineffective assistance of counsel is a manifest error affecting a constitutional right and
can be raised for the first time on appeal. State v. Brown, 159 Wn. App. 1, 17, 248 P.3d
518 (2010).
Effective assistance of counsel is guaranteed by both the Sixth Amendment to the
United States Constitution and article I, section 22 of the Washington Constitution. U.S.
CONST. amend. VI; WASH. CONST. art. I, § 22; Strickland v. Washington, 466 U.S. 668,
686, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); State v. Mierz, 127 Wn.2d 460, 471, 901
P.2d 286 (1995). To demonstrate ineffective assistance of counsel, a defendant must
show two things: “(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
11 No. 34753-2-III State v. Standley
proceeding would have been different.” State v. McFarland, 127 Wn.2d 322, 334-35,
899 P.2d 1251 (1995) (citing State v. Thomas, 109 Wn.2d 222, 225-26, 743 P.2d 816
(1987)). When a claim can be disposed of on one ground, this court need not consider
both. Strickland, 466 U.S. at 697. A claim for ineffective assistance of counsel presents
a mixed question of law and fact, which this court reviews de novo. State v. Cross, 156
Wn.2d 580, 605, 132 P.3d 80 (2006).
Mr. Standley relies on State v. Phuong, 174 Wn. App. 494, 547-48, 299 P.3d 37
(2013), which held that ineffective assistance of counsel is shown when a defendant
demonstrates a reasonable possibility that a sentencing court would have found that
offenses constituted the same criminal conduct if his or her lawyer had so argued. In
Phuong, as here, the current offenses at issue were committed at the same time and place
and involved the same victim. In Phuong, however, this court also found that the crimes
were committed with the same criminal intent. That conclusion was reached applying
case law holding that it was enough to show that the defendant acted with the same
objective criminal purpose in committing the crimes. Id. at 548.
More recently, our Supreme Court held in Chenoweth that determining whether
crimes involved the same criminal intent under RCW 9.94A.589(1)(a) requires
examining the statutory criminal intent required for each crime. 185 Wn.2d at 223. It
held that if an otherwise single act comprises separate and distinct statutory criminal
intents, it does not meet the statute’s definition of “same criminal conduct.” Id.
12 No. 34753-2-III State v. Standley
For second degree assault, the statutorily-required intent is to intentionally assault
another person. RCW 9A.36.021(1)(a). The statutory intent required for felony
harassment (threat to kill) is to knowingly threaten to kill the person threatened or any
other person. RCW 9A.46.020(1)(a)(i), (2)(b)(ii). For unlawful imprisonment, the
statutory intent required is to knowingly restrain another person. RCW 9A.40.040(1).
Applied to these facts, Mr. Standley’s statutorily-required criminal intents in connection
with the crimes committed in Ms. Hedrick’s car were, in the case of unlawfully
imprisoning her, to knowingly confine her in the car; in the case of felony harassment, to
knowingly threaten to kill her; and in the case of the second degree assault, to
intentionally assault her.
It is the defendant who must establish at sentencing that crimes constitute the same
criminal conduct. Phuong, 174 Wn. App. at 547 (citing State v. Graciano, 176 Wn.2d
531, 539, 295 P.3d 219 (2013)). Because Mr. Standley does not demonstrate a
reasonable possibility that the trial court would have found the crimes in the car were
committed with the same criminal intent, ineffective assistance of counsel is not shown.
We remand to the trial court with directions to vacate the conviction for either
count 2 or count 3 and, with respect to counts 2 (if not vacated), 5, 6, and 7, either to
13 No. 34753-2-111 State v. Standley
make supplemental findings based on the existing record sufficient to support the
conviction or to vacate the conviction. The trial court is otherwise affirmed. 2
A majority of the panel has determined this opinion will not be printed in the
Washington Appellate Reports, but it will be filed for public record pursuant to RCW
2.06.040.
~d,Locva ,~· ddoway, J. (}
WE CONCUR:
Pennell, J.
2Because the State concedes one of Mr. Standley's assignments of error and fails to prevail in connection with several others, his request that we decline to award the State costs on appeal is moot.