Filed Washington State Court of Appeals Division Two
August 23, 2016
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II STATE OF WASHINGTON, No. 47680-1-II
Respondent,
v.
ERIC CHRISTOPHER MARTIN, UNPUBLISHED OPINION
Appellant.
MELNICK, J. — A jury found Eric C. Martin guilty of burglary in the first degree, felony
harassment, assault in the fourth degree, malicious mischief in the third degree, and two counts of
assault in the second degree. He appealed and, in an unpublished opinion, this court dismissed
one of the assault in the second degree convictions and remanded for resentencing. State v. Martin,
noted at 185 Wn. App. 1014, 2014 WL 7462511. Martin appeals again, this time arguing his
felony harassment and remaining assault in the second degree conviction constituted the same
criminal conduct and, therefore, should have been counted together in calculating his offender
score. We hold the sentencing court properly scored the two offenses separately and affirm.
FACTS
Martin dated Malory Wilson for four years. They then dated on and off for another year.
Martin was physically abusive and made death threats to Wilson during their relationship.
One evening, Wilson woke up and discovered Martin in her bathroom smoking what she
believed to be crack cocaine. She yelled at him to leave her house, which angered Martin. He 47680-1-II
grabbed Wilson by the neck and repeatedly slammed her against the shower door while holding
her off the ground with both of his hands. Martin dropped Wilson and then grabbed her by the
neck again with one hand. Eventually, Martin let go, and looked “like he realized what he was
doing and he stopped.” 2 Report of Proceedings (RP) at 222. Wilson then reached for her phone.
Martin became enraged again and knocked the phone out of her hand. He then walked out of the
room, but soon returned and grabbed Wilson by the throat, saying “I’m gonna kill you before I go
to jail.” 2 RP at 224. Wilson believed that Martin would kill her.
Martin left the house and Wilson locked the door. Seconds later, Martin returned and broke
down the door. He grabbed Wilson, threw her to the ground, and pinned her down with his legs.
He then took money out of Wilson’s purse and left the house. Wilson called the police.
The State charged Martin with burglary in the first degree, robbery in the first degree,
felony harassment, assault in the fourth degree, malicious mischief in the third degree, and two
counts of assault in the second degree. All crimes charged included a domestic violence sentencing
aggravator.
The jury found Martin guilty of burglary in the first degree, felony harassment, assault in
the fourth degree, malicious mischief in the third degree, and two counts of assault in the second
degree, and not guilty of robbery in the first degree. The jury found that Martin and Wilson were
not members of the same family or household so the domestic violence aggravating factor did not
apply.
Martin appealed, arguing his two assault convictions constituted the same criminal
conduct. Martin, 2014 WL 7462511, at *1. The State conceded. Martin, 2014 WL 7462511, at
*1. In an unpublished opinion, we accepted the State’s concession, vacated one of the assault in
the second degree convictions, and remanded for resentencing. Martin, 2014 WL 7462511, at *1,
2 47680-1-II
*5-*6. We also noted that Martin was entitled to a full resentencing hearing on remand, at which
time he could raise issues not raised at his initial sentencing. Martin, 2014 WL 7462511, at *5.
At resentencing, Martin argued the remaining assault in the second degree conviction and
the felony harassment conviction comprised the same criminal conduct. The sentencing court
found the assault and harassment did not constitute the same criminal conduct and scored each
crime separately in calculating Martin’s offender score. The court imposed a standard range
sentence. Martin appeals.
ANALYSIS
I. SAME CRIMINAL CONDUCT
Martin contends the sentencing court erred in finding his assault in the second degree and
felony harassment convictions did not comprise the same criminal conduct for sentencing
purposes. We review offender score calculations de novo but review “‘a determination of what
constitutes a same criminal conduct [ruling for] abuse of discretion or misapplication of the law.’”
State v. Johnson, 180 Wn. App. 92, 100, 320 P.3d 197 (quoting State v. Mutch, 171 Wn.2d 646,
653, 254 P.3d 803 (2011)), review denied, 181 Wn.2d 1003 (2014). “A trial court abuses its
discretion if its decision ‘(1) adopts a view that no reasonable person would take and that view is
thus manifestly unreasonable; (2) rests on facts unsupported in the record and is thus based on
untenable grounds; or (3) was reached by applying the wrong legal standard and is thus made for
untenable reasons.’” Johnson, 180 Wn. App. at 100 (quoting State v. Sisouvanh, 175 Wn.2d 607,
623, 290 P.3d 942 (2012)).
3 47680-1-II
A court may consider current convictions involving the same criminal conduct as one crime
for sentencing purposes. RCW 9.94A.589(1)(a). Offenses will count as the same criminal conduct
only when they (1) require the same criminal intent, (2) are committed at the same time and place,
and (3) involve the same victim. RCW 9.94A.589(1)(a). Courts narrowly construe the same
criminal conduct rule and if any of the three elements is missing, each conviction must count
separately in the calculation of the defendant's offender score. State v. Porter, 133 Wn.2d 177,
181, 942 P.2d 974 (1997).
Here, there is no dispute that Martin committed assault and felony harassment at the same
time and place with the same victim. The issue then is whether the criminal intent changed
between the two crimes.1
Crimes may involve the same criminal intent if they were part of a “continuing,
uninterrupted sequence of conduct.” Porter, 133 Wn.2d at 186. But when an offender has time to
“pause, reflect, and either cease his criminal activity or proceed to commit a further criminal act,”
and makes the decision to proceed, he or she has formed a new intent to commit the second act.
State v. Grantham, 84 Wn. App. 854, 859, 932 P.2d 657 (1997). In Grantham, the defendant
anally raped the victim. 84 Wn. App. at 856. The victim did not move afterwards, and the
defendant began kicking her. Grantham, 84 Wn. App. at 856. She then begged for him to stop
and for him to take her home. Grantham, 84 Wn. App. at 856. He threatened the victim not to
tell and then forced her to perform oral sex on him. Grantham, 84 Wn. App. at 856. The Grantham
court properly held that there was evidence of new objective intent between the two rapes. 84 Wn.
1 In this context, intent does not mean the particular mens rea required for the crime. State v. Davis, 174 Wn. App.
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Filed Washington State Court of Appeals Division Two
August 23, 2016
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II STATE OF WASHINGTON, No. 47680-1-II
Respondent,
v.
ERIC CHRISTOPHER MARTIN, UNPUBLISHED OPINION
Appellant.
MELNICK, J. — A jury found Eric C. Martin guilty of burglary in the first degree, felony
harassment, assault in the fourth degree, malicious mischief in the third degree, and two counts of
assault in the second degree. He appealed and, in an unpublished opinion, this court dismissed
one of the assault in the second degree convictions and remanded for resentencing. State v. Martin,
noted at 185 Wn. App. 1014, 2014 WL 7462511. Martin appeals again, this time arguing his
felony harassment and remaining assault in the second degree conviction constituted the same
criminal conduct and, therefore, should have been counted together in calculating his offender
score. We hold the sentencing court properly scored the two offenses separately and affirm.
FACTS
Martin dated Malory Wilson for four years. They then dated on and off for another year.
Martin was physically abusive and made death threats to Wilson during their relationship.
One evening, Wilson woke up and discovered Martin in her bathroom smoking what she
believed to be crack cocaine. She yelled at him to leave her house, which angered Martin. He 47680-1-II
grabbed Wilson by the neck and repeatedly slammed her against the shower door while holding
her off the ground with both of his hands. Martin dropped Wilson and then grabbed her by the
neck again with one hand. Eventually, Martin let go, and looked “like he realized what he was
doing and he stopped.” 2 Report of Proceedings (RP) at 222. Wilson then reached for her phone.
Martin became enraged again and knocked the phone out of her hand. He then walked out of the
room, but soon returned and grabbed Wilson by the throat, saying “I’m gonna kill you before I go
to jail.” 2 RP at 224. Wilson believed that Martin would kill her.
Martin left the house and Wilson locked the door. Seconds later, Martin returned and broke
down the door. He grabbed Wilson, threw her to the ground, and pinned her down with his legs.
He then took money out of Wilson’s purse and left the house. Wilson called the police.
The State charged Martin with burglary in the first degree, robbery in the first degree,
felony harassment, assault in the fourth degree, malicious mischief in the third degree, and two
counts of assault in the second degree. All crimes charged included a domestic violence sentencing
aggravator.
The jury found Martin guilty of burglary in the first degree, felony harassment, assault in
the fourth degree, malicious mischief in the third degree, and two counts of assault in the second
degree, and not guilty of robbery in the first degree. The jury found that Martin and Wilson were
not members of the same family or household so the domestic violence aggravating factor did not
apply.
Martin appealed, arguing his two assault convictions constituted the same criminal
conduct. Martin, 2014 WL 7462511, at *1. The State conceded. Martin, 2014 WL 7462511, at
*1. In an unpublished opinion, we accepted the State’s concession, vacated one of the assault in
the second degree convictions, and remanded for resentencing. Martin, 2014 WL 7462511, at *1,
2 47680-1-II
*5-*6. We also noted that Martin was entitled to a full resentencing hearing on remand, at which
time he could raise issues not raised at his initial sentencing. Martin, 2014 WL 7462511, at *5.
At resentencing, Martin argued the remaining assault in the second degree conviction and
the felony harassment conviction comprised the same criminal conduct. The sentencing court
found the assault and harassment did not constitute the same criminal conduct and scored each
crime separately in calculating Martin’s offender score. The court imposed a standard range
sentence. Martin appeals.
ANALYSIS
I. SAME CRIMINAL CONDUCT
Martin contends the sentencing court erred in finding his assault in the second degree and
felony harassment convictions did not comprise the same criminal conduct for sentencing
purposes. We review offender score calculations de novo but review “‘a determination of what
constitutes a same criminal conduct [ruling for] abuse of discretion or misapplication of the law.’”
State v. Johnson, 180 Wn. App. 92, 100, 320 P.3d 197 (quoting State v. Mutch, 171 Wn.2d 646,
653, 254 P.3d 803 (2011)), review denied, 181 Wn.2d 1003 (2014). “A trial court abuses its
discretion if its decision ‘(1) adopts a view that no reasonable person would take and that view is
thus manifestly unreasonable; (2) rests on facts unsupported in the record and is thus based on
untenable grounds; or (3) was reached by applying the wrong legal standard and is thus made for
untenable reasons.’” Johnson, 180 Wn. App. at 100 (quoting State v. Sisouvanh, 175 Wn.2d 607,
623, 290 P.3d 942 (2012)).
3 47680-1-II
A court may consider current convictions involving the same criminal conduct as one crime
for sentencing purposes. RCW 9.94A.589(1)(a). Offenses will count as the same criminal conduct
only when they (1) require the same criminal intent, (2) are committed at the same time and place,
and (3) involve the same victim. RCW 9.94A.589(1)(a). Courts narrowly construe the same
criminal conduct rule and if any of the three elements is missing, each conviction must count
separately in the calculation of the defendant's offender score. State v. Porter, 133 Wn.2d 177,
181, 942 P.2d 974 (1997).
Here, there is no dispute that Martin committed assault and felony harassment at the same
time and place with the same victim. The issue then is whether the criminal intent changed
between the two crimes.1
Crimes may involve the same criminal intent if they were part of a “continuing,
uninterrupted sequence of conduct.” Porter, 133 Wn.2d at 186. But when an offender has time to
“pause, reflect, and either cease his criminal activity or proceed to commit a further criminal act,”
and makes the decision to proceed, he or she has formed a new intent to commit the second act.
State v. Grantham, 84 Wn. App. 854, 859, 932 P.2d 657 (1997). In Grantham, the defendant
anally raped the victim. 84 Wn. App. at 856. The victim did not move afterwards, and the
defendant began kicking her. Grantham, 84 Wn. App. at 856. She then begged for him to stop
and for him to take her home. Grantham, 84 Wn. App. at 856. He threatened the victim not to
tell and then forced her to perform oral sex on him. Grantham, 84 Wn. App. at 856. The Grantham
court properly held that there was evidence of new objective intent between the two rapes. 84 Wn.
1 In this context, intent does not mean the particular mens rea required for the crime. State v. Davis, 174 Wn. App. 623, 642, 300 P.3d 465 (2013). Rather, it means the defendant’s “‘objective criminal purpose in committing the crime.’” Davis, 174 Wn. App. at 642 (quoting State v. Adame, 56 Wn. App. 803, 811, 785 P.2d 1144 (1990)).
4 47680-1-II
App. at 859. In so holding, the court reasoned that the defendant had time to reflect on what he
did, threaten the victim not to tell, and he then used new force to commit the second rape.
Grantham, 84 Wn. App. at 859.
The facts here are similar to the facts in Grantham. The evidence shows Martin strangled
Wilson in the bathroom, but made no threats at the time. Martin then let go of Wilson and appeared
to calm down. After Wilson reached for her phone, Martin became enraged again. He walked out
of the bathroom, returned, and grabbed Wilson by the throat. He said, “I’m gonna kill you before
I go to jail.” 2 RP at 224. Martin’s actions show he had time to stop, reflect on his actions, and
form a new intent to prevent Wilson from calling police by threatening to kill her. His intent,
therefore, changed between the assault and the felony harassment.
Because tenable grounds exist to show the two crimes involved different intents, the
sentencing court did not abuse its discretion in finding the crimes did not entail the same criminal
conduct. The court did not err in calculating Martin’s offender score.
II. APPELLATE COSTS
Martin objects to awarding appellate costs to the State in light of State v. Sinclair, 192 Wn.
App. 380, 367 P.3d 612, review denied, 185 Wn.2d 1034 (2016), arguing he lacks the ability to
pay. The trial court entered an order of indigency for this appeal on June 12, 2015. (CP 201) We
presume a party remains indigent “throughout the review” unless the trial court finds otherwise.
RAP 15.2(f). RCW 10.73.160(1) vests the appellate court with discretion to award appellate costs.
Under RAP 14.2, that discretion may be exercised in a decision terminating review. We exercise
our discretion and hold that an award of appellate costs to the State is not appropriate.
5 47680-1-II
We affirm.
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.
Melnick, J.
We concur:
Lee, P.J.
Sutton, J.