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STATE OF WASHINGTON, ) No. 35792-9-III ) Respondent, ) ) v. ) UNPUBLISHED OPINION ) DAHNDRE KAVAUGN WESTWOOD, ) ) Appellant.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. No. 35792-9-III 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).
9 No. 35792-9-III State v. Westwood
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
10 No. 35792-9-III State v. Westwood
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
12 No. 35792-9-III State v. Westwood
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.
13 No. 35792-9-III State v. Westwood
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.
14 No. 35792-9-III State v. Westwood
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
15 No. 35792-9-III State v. Westwood
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.
16 No. 35792-9-III State v. Westwood
.... . . . 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
17 No. 35792-9-III State v. Westwood
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.
18 No. 35792-9-III State v. Westwood
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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