FILED
MARCH 19, 2020
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. 35792-9-III )
Respondent, )
)
v. ) UNPUBLISHED OPINION )
DAHNDRE KAVAUGN WESTWOOD, )
)
Appellant. )
LAWRENCE-BERREY, J. — Dahndre Westwood appeals his convictions for attempted first degree rape, first degree burglary, and first degree assault. He raises several assignments of error.
In a published decision that did not terminate review, we held that the trial court abused its discretion by rejecting a proposed plea agreement. We remanded the appeal, directing the State to offer Westwood a plea deal similar to the one rejected by the trial court. State v. Westwood, 10 Wn. App. 2d 543, 448 P.3d 771 (2019). On remand, the State offered Westwood a plea deal that required him to plead guilty to attempted second degree rape. Westwood rejected the State’s offer.
State v. Westwood
This matter is now before us to address Westwood’s remaining assignments of error. We generally affirm, but remand for resentencing for the trial court to determine whether the three felony convictions involve the same criminal conduct.
We also address Westwood’s supplemental argument, requesting that resentencing be conducted by a different judge. We deny his request.
FACTS AND PROCEDURAL BACKGROUND On December 6, 2012, at approximately 4:30 a.m., A.B. was alone in her duplex.
She heard a noise, looked up, and saw a man standing in the hallway. The man wore black clothing and a dark-colored bandana on his face. He was holding a large curved knife.
The man pushed A.B. into her bedroom and onto her bed. The man told A.B. to take off her clothes and threatened to kill her. He tried to remove her clothes by force but was unsuccessful. He shoved his hand down her pajama pants and touched her leg. A.B. clawed at his hands and knocked the knife away. Headlights from several passing cars shone through the window. The man looked out the window, told A.B. that he would kill her if she told anyone, and ran out of the house.
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A.B. immediately locked her door and called 911. She then went to the hospital and received a sexual assault examination. A nurse took swab samples from A.B.’s hands and mouth.
The right fingertip swab contained the deoxyribonucleic acid (DNA) of A.B. and an unknown man. In December 2014, the crime lab matched the unknown male DNA to Dahndre Westwood. After obtaining a warrant, police took an oral swab from Westwood to collect his DNA. Westwood’s DNA matched that obtained from the swab of A.B.’s finger. A detective showed A.B. two photographs of Westwood and she identified him as her attacker.
The State charged Westwood with attempted first degree rape, first degree burglary, first degree assault, second degree assault, and indecent liberties. Westwood was 14 years old on the date of the alleged attack and 17 years old on the date he was first charged. The juvenile court declined to exercise jurisdiction over Westwood and Westwood was tried in adult court.
Prior to trial, the parties proposed a plea agreement wherein the State would amend the information to allege only indecent liberties, and Westwood would plead guilty to that charge as well as to a third degree assault charge in a different case. The trial court rejected the proposed plea agreement as inconsistent with prosecutorial standards, and the
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case proceeded to a jury trial. Defense counsel’s theory of the case was that Westwood did not attack A.B., but that another person did while wearing clothing with Westwood’s DNA on it.
On the second day of trial, juror 5 sent a note to the court that read, “Jury [sic] 7 and 8 were talking tranfer [sic] DNA at the last break.” Clerk’s Papers (CP) at 378-79. Westwood moved for a mistrial. The State opposed the motion. The court questioned juror 5, who explained that in the presence of the entire jury, that juror 9 said it was impossible to transfer DNA to clothing through touch. The court determined the discussion actually occurred between jurors 8 and 9. The court dismissed jurors 8 and 9 and replaced them with alternate jurors.
In the presence of the prosecution and defense counsel, the court questioned the remaining jurors individually as to their ability to perform their duty. Each juror responded that they would decide the case based only on admitted evidence. Westwood renewed his motion for a mistrial, and the court denied his motion.
At trial, witnesses testified to the preceding facts. In addition, the State called Washington State Patrol Crime Laboratory forensic DNA supervisor Anna Wilson, who testified it would be possible for a person’s DNA to be present at a crime scene through DNA transfer even if the person was never present at the crime scene. Defense counsel
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chose not to call a DNA expert witness, explaining he was satisfied with Ms. Wilson’s testimony.
The court instructed the jury that it was to base its verdict solely on evidence admitted at trial. The jury found Westwood guilty of attempted first degree rape, first degree burglary, first degree assault, and second degree assault, and not guilty of indecent liberties. The jury specifically found that during the attempted rape, Westwood used or threatened to use a deadly weapon and feloniously entered A.B.’s home.
At sentencing, the trial court determined that double jeopardy principles required it to dismiss the second degree assault verdict. The State agreed.
Westwood argued his remaining felony convictions—attempted first degree rape, first degree burglary, and first degree assault—should be considered the same criminal conduct. The State argued, under State v. Chenoweth, 185 Wn.2d 218, 370 P.3d 6 (2016), separate offenses are not the same criminal conduct if the applicable statutes have different intent elements. The trial court hesitated before adopting the State’s arguments. Eventually, it agreed that Chenoweth required it to determine that Westwood’s three felony convictions were not the same criminal conduct because the convictions required proof of different intent elements. This determination resulted in higher offender scores
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for the three convictions and also consecutive sentences for Westwood’s two serious violent offense convictions—attempted first degree rape and first degree assault.
Westwood requested an exceptional mitigated sentenced based on his age at the time of the offenses. In support, Westwood submitted several pages of personal background information. The information included that Westwood had been held back in second or third grade because of immaturity, and that he was immature for his age at the time of the offenses. Westwood also submitted 10 letters written by persons who knew him. The letters praised Westwood’s good qualities and argued he did not commit the crimes with which he was charged. The court refused to impose an exceptional mitigated sentence.
The court sentenced Westwood to confinement for 105 months on the attempted rape charge, 47.5 months on the burglary charge, and 108 months on the first degree assault charge. The court imposed consecutive sentences on the attempted rape and assault convictions, for a total term of incarceration of 213 months. The court imposed a $500 victim penalty assessment, a $200 criminal filing fee, and a $100 DNA collection fee.
Westwood timely appealed.
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ANALYSIS
A. DENIAL OF MOTION FOR MISTRIAL Westwood argues he was denied his article I, section 22 and Sixth Amendment to the United States Constitution right to a fair and impartial jury when the trial court denied his motion for a mistrial after two jurors discussed extrinsic DNA evidence.
“[T]he consideration of novel or extrinsic evidence by a jury is misconduct and can be grounds for a new trial.” State v. Balisok, 123 Wn.2d 114, 118, 866 P.2d 631 (1994). “Novel or extrinsic evidence is defined as information that is outside all the evidence admitted at trial, either orally or by document.” Richards v. Overlake Hosp. Med. Ctr., 59 Wn. App. 266, 270, 796 P.2d 737 (1990).
“The trial court should grant a mistrial only when the defendant has been so prejudiced that nothing short of a new trial can ensure that the defendant will be fairly tried.” State v. Emery, 174 Wn.2d 741, 765, 278 P.3d 653 (2012). “We review the trial court’s denial of a mistrial for abuse of discretion, and we find abuse only ‘when no reasonable judge would have reached the same conclusion.’” Id. (internal quotation marks omitted) (quoting Sofie v. Fibreboard Corp., 112 Wn.2d 636, 667, 771 P.2d 711, 780 P.2d 260 (1989)). “[A] trial court may ask questions of the jurors’ subjective ability
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to disregard extrinsic information before there is a verdict to potentially impeach.” State v. Gaines, 194 Wn. App. 892, 898, 380 P.3d 540 (2016).
Juror 9 told juror 8 that it was impossible to transfer DNA evidence from touch to clothing. Jurors overheard this, and one juror informed the trial court. The court excused jurors 9 and 8. Then, the court questioned each juror individually as to their ability to perform their duty and to decide the case only on admitted evidence. Each responded they could. We believe the trial court made the appropriate inquiries and reasonably believed the remaining jurors could decide the case only on admitted evidence.
The State’s expert testified it was possible for DNA evidence to transfer from touch to clothing. The jury knew it was possible, but found it did not occur in this instance. We conclude the trial court did not abuse its discretion by denying Westwood’s motion for a new trial.
B. DOUBLE JEOPARDY 1. STANDARDS
Westwood argues the trial court violated his rights against double jeopardy by entering separate convictions for attempted first degree rape and first degree assault. We review double jeopardy challenges de novo. State v. Freeman, 153 Wn.2d 765, 770, 108 P.3d 753 (2005).
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“The State may bring (and a jury may consider) multiple charges arising from the same criminal conduct in a single proceeding.” Id.; U.S. CONST. amend. V; WASH. CONST. art. I, § 9. “Courts may not, however, enter multiple convictions for the same offense without offending double jeopardy.” Id. at 770-71 (citing State v. Vladovic, 99 Wn.2d 413, 422, 662 P.2d 853 (1983)). The legislature has the power to define offenses and set punishments. Id. at 771 (citing State v. Calle, 125 Wn.2d 769, 777-78, 888 P.2d 155 (1995)). For this reason, “[w]here a defendant’s act supports charges under two criminal statutes, a court weighing a double jeopardy challenge must determine whether, in light of legislative intent, the charged crimes constitute the same offense.” In re Pers. Restraint of Orange, 152 Wn.2d 795, 815, 100 P.3d 291 (2004). “If the legislature authorized cumulative punishments for both crimes, then double jeopardy is not offended.” Freeman, 153 Wn.2d at 771.
A four-factor analysis determines whether multiple convictions violate double jeopardy. First, the court looks for express or implied legislative intent that offenses be punished separately. Id. at 771-72. “Second, if the legislative intent is not clear, we may turn to the Blockburger[1] test.” Id. at 772. “Third, if applicable, the merger doctrine is
1 Blockburger v. United States, 284 U.S. 299, 304, 52 S. Ct. 180, 76 L. Ed. 306 (1932).
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another aid in determining legislative intent, even when two crimes have formally different elements.” Id. “Finally, even if on an abstract level two convictions appear to be for the same offense or for charges that would merge, if there is an independent purpose or effect to each, they may be punished as separate offenses.” Id. at 773.
The remedy for a double jeopardy violation is vacation of the lesser conviction.
State v. Portrey, 102 Wn. App. 898, 907, 10 P.3d 481 (2000). “This is because the greater offense ‘typically carries a penalty that incorporates punishment for the lesser included offence.’” Freeman, 153 Wn.2d at 775 (quoting Akhil Reed Amar & Jonathan L. Marcus, Double Jeopardy Law After Rodney King, 95 COLUM. L. REV. 1, 28 (1995)).
2. APPLICATION: LEGISLATIVE INTENT DETERMINES THE ISSUE RCW 9A.52.050 provides: “Every person who, in the commission of a burglary shall commit any other crime, may be punished therefor as well as for the burglary, and may be prosecuted for each crime separately.”
Here, the jury found Westwood guilty of attempted first degree rape, first degree assault, and first degree burglary. Under RCW 9A.52.050, the trial court had authority to separately punish and enter convictions for all three felonies. State v. Collicott, 118 Wn.2d 649, 658, 827 P.2d 263 (1992) (“Under [the burglary antimerger] statute it is
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proper also for Mr. Collicott to be punished for each of the three offenses for which he has been charged.”).
We distinguish State v. Johnson, 92 Wn.2d 671, 600 P.2d 1249 (1979). There, because the State did not charge Johnson with burglary, the burglary antimerger statute did not apply. See State v. Sweet, 138 Wn.2d 466, 478, 980 P.2d 1223 (1999) (applying Collicott and distinguishing Johnson).
We conclude the trial court did not violate Westwood’s right against double jeopardy by entering separate convictions for first degree assault and first degree attempted rape.
C. SAME CRIMINAL CONDUCT Westwood argues the trial court erred by finding his three convictions were not the same criminal conduct and by sentencing him to consecutive sentences for attempted first degree rape and first degree assault.
The defendant bears the burden to prove that offenses constitute the same criminal conduct. State v. Graciano, 176 Wn.2d 531, 539, 295 P.3d 219 (2013). A court’s determination of same criminal conduct is reviewed for abuse of discretion or misapplication of law. Id. at 537.
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Scoring
Separate crimes that encompass the same criminal conduct are counted as one crime for offender score purposes. RCW 9.94A.589(1)(a). Separate 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.” Id. Crimes are committed with the same criminal intent when, viewed objectively, intent did not change from one crime to the next. State v. Dunaway, 109 Wn.2d 207, 215, 743 P.2d 1237 (1987). “‘Intent, in this context, is not the particular mens rea element of the particular crime, but rather is the offender’s objective criminal purpose in committing the crime.’” State v. Kloepper, 179 Wn. App. 343, 357, 317 P.3d 1088 (2014) (quoting State v. Adame, 56 Wn. App. 803, 811, 785 P.2d 1144 (1990)). “In determining whether multiple crimes constitute the same criminal conduct, courts consider ‘how intimately related the crimes committed are,’ ‘whether, between the crimes charged, there was any substantial change in the nature of the criminal objective,’ and ‘whether one crime furthered the other.’” State v. Rattana Keo Phuong, 174 Wn. App. 494, 546-47, 299 P.3d 37 (2013) (quoting State v. Burns, 114 Wn.2d 314, 318, 788 P.2d 531 (1990)). And, “if one crime furthered another, and if the time and place of the crimes remained the same, then the defendant’s criminal purpose or
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intent did not change and the offenses encompass the same criminal conduct.” State v. Lessley, 118 Wn.2d 773, 777, 827 P.2d 996 (1992).
For scoring purposes, a trial court has discretion to consider burglary as separate from other crimes even if they are the same criminal conduct. RCW 9A.52.050; Lessley, 118 Wn.2d at 781-82; State v. Knight, 176 Wn. App. 936, 962, 309 P.3d 776 (2013).
In Chenoweth, the Washington Supreme Court held that rape and incest were separate criminal conduct even when resulting from a single act. 185 Wn.2d at 224. However, the holding of that case, as well as the precedent it relies on, are specific to rape and incest. See id.; State v. Bobenhouse, 166 Wn.2d 881, 896, 214 P.3d 907 (2009); Calle, 125 Wn.2d at 780. As Chenoweth does not purport to overrule Dunaway or its progeny, its holding and rationale are limited to cases of rape and incest arising from a single act.
Here, the trial court declined to exercise its discretion. Rather, it perceived it was bound by Chenoweth to consider the attempted rape, assault, and burglary as separate offenses. As explained above, the court was not obligated to do so. Thus, the court’s decision was based on a misapplication of law.2
2 The trial court’s initial instincts were spot-on. Before accepting the State’s position, it noted Chenoweth did not explicitly overrule Dunaway and indicated a broad application of Chenoweth made no sense.
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We conclude the trial court erred in failing to exercise its discretion to determine whether Westwood’s convictions for attempted first degree rape, first degree assault, and first degree burglary constituted the same criminal conduct for scoring purposes.3 Concurrent or consecutive sentences Westwood’s convictions for first degree rape and first degree assault are classified as serious violent offenses. Former RCW 9.94A.030(45)(v), (vii) (2012). RCW 9.94A.589(1)(b) provides that in sentencing serious violent offenses, the crimes will be sentenced consecutively to each other if they arise from “separate and distinct criminal conduct.” That standard is the same as the “same criminal conduct” standard of RCW 9.94A.589(1)(a). Kloepper, 179 Wn. App. at 356. If the trial court finds that the assault and rape offenses constituted the same criminal conduct for scoring purposes, the three convictions must be sentenced concurrently.
D. STANDARD RANGE SENTENCE “A sentence within the standard sentence range . . . for an offense shall not be appealed.” RCW 9.94A.585(1). “Nevertheless, a defendant may appeal the trial court’s
3 Westwood requests that we decide the “same criminal conduct” issue. Because appellate courts grant the trial court a certain amount of discretion on that issue, it is more appropriate for us to remand and allow the trial court to decide it.
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procedure in imposing his sentence.” Knight, 176 Wn. App. at 957. “A discretionary sentence within the standard range is reviewable in ‘circumstances where the court has refused to exercise discretion at all or has relied on an impermissible basis for refusing to impose an exceptional sentence below the standard range.’” State v. McFarland, 189 Wn.2d 47, 56, 399 P.3d 1106 (2017) (internal quotation marks omitted) (quoting State v. McGill, 112 Wn. App. 95, 100, 47 P.3d 173 (2002)).
A trial court may impose a sentence below the standard range if it finds by a preponderance of the evidence that the defendant’s ability to appreciate the wrongfulness of his or her conduct was significantly impaired. RCW 9.94A.535(1)(e). The court must exercise its discretion to determine whether a defendant’s youthfulness diminished his or her capacity to appreciate the wrongfulness of conduct. See State v. O’Dell, 183 Wn.2d 680, 696-99, 358 P.3d 359 (2015).
The trial court did not abuse its discretion in imposing a standard sentence. As an initial matter, the court did consider whether to impose an exceptional sentence. Thus, the court did not fail to exercise its discretion.
Westwood was held back in elementary school and was emotionally immature at the time he committed these crimes. This evidence permitted, but did not require, the trial court to conclude Westwood’s youth and immaturity diminished his capacity to appreciate
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the wrongfulness of entering a woman’s home with a large knife and attempting to rape her. We conclude the trial court did not abuse its discretion when it imposed a standard range sentence.4 E. PROCEDURE ON RESENTENCING We now address in more detail what occurred on remand while we retained jurisdiction. After Westwood rejected the State’s plea offer, the trial court entered an order sending the case back to us. The order attached a 10-page letter opinion, with its own attachments, setting forth the trial court’s reasons why the State’s original plea offer was not consistent with prosecutorial standards. The trial court’s letter opinion is appended to this court’s decision. See CP at 626-35. We quote a portion of the letter opinion:
[Prior hearings in this case establish the State’s initial plea offer was not motivated by lack of merit or evidentiary concerns.]
The prosecution did not make an individual assessment of [Westwood’s] youth as a mitigating factor to be considered in charging in the full context of [Westwood’s] entire criminal history when it extended [the initial] plea offer to [him]. Further, it ignored the full consideration given to [Westwood’s] youth as a mitigating factor in juvenile court. This Court concludes that if it had, no reasonable prosecutor could have concluded that [Westwood’s] youth was a justification for dismissing two serious violent felonies [he] had committed.
4 Because resentencing is required, we need not address Westwood’s contention the trial court erred by imposing various legal financial obligations (LFOs). At resentencing, the trial court must impose LFOs consistent with recent legislative changes.
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....
. . . The State has demonstrated over and over again that it does not believe Mr. Westwood’s criminal conduct resulted from a youthful inability to resist transient violent urges.
....
The record before the Court demonstrates that Mr. Westwood is a dangerous and violent person.
CP at 634 (emphasis added).
Westwood argues the trial court’s written comments make clear it cannot give him a fair resentencing. Westwood requests us to order reassignment of his case to a different sentencing judge.
“Under the state and federal constitutions, a criminal defendant has the right to be tried and sentenced by an impartial court.” State v. Solis-Diaz, 187 Wn.2d 535, 539, 387 P.3d 703 (2017) (citing U.S. CONST. amends VI, XIV; WASH. CONST. art. I, § 22). “Pursuant to the appearance of fairness doctrine, a judicial proceeding is valid if a reasonably prudent, disinterested observer would conclude that the parties received a fair, impartial, and neutral hearing.” Id. at 540. “The law requires more than an impartial judge; it requires that the judge also appear to be impartial.” Id.
A party may seek a new judge for the first time on appeal. Id. This is typically done where the trial judge will exercise discretion on remand regarding
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the very issue that triggered the appeal and has already been exposed to prohibited information, expressed an opinion as to the merits, or otherwise prejudged the issue. Id.
Here, we are remanding for the trial court to exercise discretion and decide whether Westwood’s three felony convictions involved the same criminal conduct. The outcome will determine the correct offender score and whether the sentences will run concurrent or partially concurrent. The trial court has not expressed any opinion or prejudice with respect to this issue. If anything, the trial court’s initial reluctance to accept the State’s Chenoweth argument indicates a willingness to impose a concurrent sentence. This is especially clear given the court’s comments and the State’s acknowledgment that “the burglary and the assault were committed in order to further the attempted rape.” RP (Jan. 8, 2018) at 44.
The record shows a conscientious judge who applied the law fairly to Westwood.
We have affirmed most of the trial court’s rulings. The trial court’s statements in its letter are statements based on the record before the trial court. They are not based on any improper prejudice or bias. A reasonably prudent, disinterested observer would conclude that Westwood received a fair trial and a fair sentence, and that he will receive a fair resentencing. Accordingly, we deny Westwood’s request for a new sentencing judge.
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Affirmed in part; remand for resentencing.
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.
WE CONCUR:
Q, Pennell, C.J.
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APPENDIX
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