State v. Collicott

771 P.2d 1137, 112 Wash. 2d 399, 1989 Wash. LEXIS 40

• Court: Washington Supreme Court
• Decided: April 27, 1989
• Docket: 54915-0
• Status: Published

Opinions

Utter, J.

Petitioner Eric L. Collicott seeks review of a

Court of Appeals decision finding that his conviction for first degree burglary, first degree rape, and first degree kidnapping do not constitute the "same criminal conduct" for the purpose of determining his offender score under RCW 9.94A.360. The trial judge found that the offenses did constitute the same criminal conduct. We find the trial court's reasoning persuasive and reverse the decision of the Court of Appeals.

On December 12, 1985, petitioner pleaded guilty to first degree burglary under RCW 9A.52.020, first degree rape under RCW 9A.44.040, and first degree kidnapping under RCW 9A.40.020. As part of the plea, Mr. Collicott stipulated to the admissibility of the victim's statement, as well as her interview with a police detective, as material facts for the court to consider in sentencing. These documents provide us with a glimpse at the underlying facts of the case.

Eric Collicott broke into the Yokefellow Counseling Center (the Center) in Lynnwood in the early morning hours of September 28, 1985. Mr. Collicott apparently began collecting electronic equipment inside the building. Sometime during this activity, he made a loud crashing noise.

This noise awoke the victim, sleeping in one of the Center's bedrooms. She had arrived earlier that night and had arranged with the Center's staff to spend the night there in preparation for doing work the next day. Half awake, she walked out into the hallway to investigate and saw Mr. Collicott standing in front of an opened closet. She asked him who he was and what he was doing. Mr. Collicott appeared to be extremely intoxicated and gave an incoherent answer, so the victim led him to a nearby couch and sat him down. She thought he might have been one of the Center's residents.

The victim went to the front of the building to see if the door was open. She saw there a pile of electronic equipment, noticed that the front office had been burglarized, and tried to use the office phone to call the police. The phone did not work. The victim went back to the living room to a phone she knew was operative.

As she entered the living room, Mr. Collicott came from behind and hit her over the head with a table lamp. He showed her that he had a knife, which the victim later said looked as though it was taken from a kitchen. He grabbed her hair, led her into the bedroom, and ordered her to give him money and the keys to her car. He tied her hands and feet and gagged and blindfolded her. Mr. Collicott then went out of the room and loaded up the electronic gear into the victim's car.

Mr. Collicott returned to the bedroom and raped the victim. He then took her to the car, got into the driver's seat with the knife on the floor near him, and drove off. He told her that he was going to drive somewhere to get a gun. After arriving at this destination, Mr. Collicott left the victim in the car while he went inside. He took the keys with him. The victim remembered that she kept an extra car key in a magnetized container under the car. She worked her hands loose, got out and found the key, got in the driver's seat, and drove away as quickly as possible. She eventually was able to contact the police.

After Mr. Collicott's eventual arrest, the Snohomish County Prosecutor charged him with first degree burglary (count 1), first degree rape (count 2), and first degree kidnapping (count 3), all committed with a deadly weapon. Mr. Collicott pleaded guilty to all charges. In his plea, he made the following statement:

Counts I, II and III all occurred in Snohomish County during the early morning hours of 9-28-85. During commission of each of the crimes in Counts I, II, and III, I was armed with a kitchen knife which qualifies as a deadly weapon under 9.94A.125.

Count I: I unlawfully entered a dwelling — Yokefellow Center — with the intent to commit theft therein. While inside I assaulted [the victim] by striking and raping her.

Count II: After feloniously entering the dwelling described in Count I, I had sexual intercourse with [the victim] who was inside the dwelling, by forcible compulsion through physical force and restraints which prevented resistance. Afterwards, I intentionally kidnapped her.

Count III: After feloniously entering the building described in Count I and raping [the victim], as described in Count II, I intentionally abducted [the victim] by removing her from the dwelling and restraining her by threats of deadly force. I did this with the intent to facilitate commission of and flight from the burglary and rape.

Clerk's Papers, at 30-31.

Mr. Collicott argued before the trial court that the above counts all amounted to the same criminal conduct for the purpose of determining his offender score. The judge agreed, but erroneously calculated the offender score for each offense by taking the other two into account as one other current offense:

Counts II & III count as one crime with regard to Count I.

Counts I & III count as one crime with regard to Count H.

Counts I & II count as one crime with regard to Count III.

Clerk's Papers, at 2. The trial court sentenced Mr. Collicott to 72 months for count 1 and 154 months each for counts 2 and 3, to serve concurrently. Both parties appealed the sentencing decision. The Court of Appeals, Division One, citing State v. Dunaway, 109 Wn.2d 207, 743 P.2d 1237 (1987), held that the three counts were not the same criminal conduct, that each offense was completed before the subsequent ones began. The Court of Appeals also found that the Center and the rape/kidnapping victim constituted two separate victims, causing the burglary to be separate from the other crimes. Mr. Collicott sought review of this decision. We took review of the case to resolve conflicts between the decision of the Court of Appeals and Dun-away.

Petitioner points out the conflicts with our Dunaway rule. He argues that the Court of Appeals wrongly considered the burglary to be completed before the rape. He contends this is so because the prosecutor partly based the first degree burglary charge on Mr. Collicott's assault and rape of the building's occupant. In order to satisfy all the elements of first degree burglary, the criminal activity encompassed in the offense had to include the rape. Otherwise, petitioner argues, the offense would have been burglary in the second degree. Petitioner also argues that the first degree burglary — depending on the assault and rape for its definition — could only have had one victim: the woman who was raped. Last, petitioner claims that the Court of Appeals wrongly held that the kidnapping did not facilitate the rape or burglary or flight therefrom. Petitioner maintains that he specifically pleaded guilty to first degree kidnapping with intent to facilitate the two other felonies.

I

Matters of sentencing traditionally have been within a trial judge's discretion. The Washington Sentencing Reform Act of 1981 altered this traditional formula, but the Legislature did not do away with judicial discretion: the SRA "structures, but does not eliminate, discretionary decisions affecting sentences ..." RCW 9.94A.010. Thus, within the SRA's guidelines, a trial judge's discretion in sentencing matters remains intact. Cf. State v. Ammons, 105 Wn.2d 175, 181, 713 P.2d 719, 718 P.2d 796, cert. denied, 479 U.S. 930 (1986). On matters within SRA guidelines, an appellate court will not reverse a trial judge's sentencing decision within his discretion unless it finds a clear abuse of that discretion or misapplication of the law. State v. McAlpin, 108 Wn.2d 458, 467, 740 P.2d 824 (1987) (exceptional sentence excessive only if discretion abused); State v. Oxborrow, 106 Wn.2d 525, 530, 723 P.2d 1123 (1986) (same); State v. Tunell, 51 Wn. App. 274, 284, 753 P.2d 543 (1988) (same).

We give similar deference to a judge when he or she considers the factors which determine a defendant's offender score. The determination of what constitutes the same criminal conduct is a necessary inquiry in assessing the offender score. We uphold the trial court's decision because we find neither a clear abuse of discretion nor a misapplication of the law. The trial judge's decision also serves as an illustration of the correct application of the principles we enunciated in State v. Dunaway, supra.

II

In Dunaway, this court developed a test, largely based on State v. Edwards, 45 Wn. App. 378, 725 P.2d 442 (1986), to determine if accompanying crimes encompass the same criminal conduct. In Dunaway, we stated that separate convictions will be treated as one for sentencing purposes if they arise out of the same course of conduct and one criminal event is intimately related to the other. 109 Wn.2d at 214. See also State v. Collins, 110 Wn.2d 253, 751 P.2d 837 (1988); State v. Adcock, 36 Wn. App. 699, 706, 676 P.2d 1040, review denied, 101 Wn.2d 1018 (1984). As part of this determination,

trial courts should focus on the extent to which the criminal intent, as objectively viewed, changed from one crime to the next. As it did in Edwards, part of this analysis will often include the related issues of whether one crime furthered the other and if the time and place of the two crimes remained the same.

Dunaway, at 215. We developed one exception to this general principle: if different crimes at issue involved different victims, then a court must treat them as separate in calculating the offender score.

Our application of the test in Dunaway shows the contours of the correct inquiry. In Dunaway, we analyzed three separate cases, two involving combinations of first degree robbery and attempted first degree murder, the third a combination of first degree robbery and first degree kidnapping. Instead of looking to the defendant's subjective intent — what he or she specifically intended to do over the course of the criminal activity — we focused on the "objective intent," the basic purpose behind each offense in a theoretical sense. Such an objective, theoretical inquiry avoids fact-specific speculation about what the defendant in a given case actually intended in his or her actions. When a trial court looks to the offender's theoretical purpose behind the offense as defined in the statute and as charged in the information, it achieves more consistent results.

In viewing the robberies/attempted murders, we found that "the intent behind robbery is to acquire property while the intent behind attempted murder is to kill someone." Dunaway, at 216. Because we additionally found that neither crime furthered the commission of the other, we held that the two were not part of the same criminal conduct. Dunaway, at 217.

With regard to the third case (kidnapping/robbery), we did find the two to be the same criminal conduct because they were intimately related. The objective remained the same between the two offenses: "Dunaway pleaded guilty to the charge of intentionally abducting his victim with the intent to commit robbery. Indeed, it was Dunaway's very intent to commit robbery that enabled the prosecutor to raise the charge from second degree to first degree kidnapping." Dunaway, at 217.

This third case in Dunaway parallels the case now before us in two significant ways. First, the charges in question were ones to which the defendant pleaded guilty. Second, the charges in that case overlapped, one offense depending on the other for definition.

This second parallel reveals an important factor in the "same criminal conduct" inquiry. In order to charge the defendant with kidnapping in the first degree, the prosecutor included the accompanying robbery offense as one of the elements of kidnapping. When accompanying offenses depend on each other to obtain a higher degree for each one, they are "intimately related or connected" enough to be viewed as the same criminal conduct. This principle is called "element sharing."

The element sharing inquiry reveals the need for logical charging and sentencing relationships. It would be incongruous for a prosecutor, at charging, to look to accompanying offenses in order to raise a specific offense to a higher degree and then, at sentencing, argue that the specific offense is indeed separate from the accompanying ones used to raise that offense. Such a strategy would in effect punish the defendant twice.

Prosecutors have a choice in their initial charging decision. They may choose to charge some offenses under a lesser degree in order to separate them from other offenses for sentencing purposes. Or, they may choose to seek the higher degree of offense and openly acknowledge the offense's dependence on accompanying offenses to obtain that higher degree. They cannot, however, do both. In this case, for example, the prosecutor could have chosen to charge the defendant with second degree burglary, clearly identifying the apparently intended theft against the Center. Such a charge would have placed the burglary on a ground separate from the offenses against the victim of the rape and kidnapping. Because it would have represented separate criminal conduct, this second degree burglary charge would have made its own contribution to Mr. Collicott's offender score.

III

In applying the Dunaway test to the present case, there are two separate inquiries to make: the first regarding the burglary's relation to the rape and the second regarding the kidnapping's relation to the rape and burglary. In all of the charges, the prosecutor drew upon elements of the accompanying offenses to raise their level up to the first degree.

In the prosecutor's information, the burglary charge read, in relevant part:

[T]he defendant. . . with intent to commit the crimes of theft, rape, & assault against persons or property therein, did enter or remain unlawfully in a dwelling . . . and in entering and while in such dwelling and in immediate flight therefrom, the defendant was armed with a knife . . . and did assault [the victim] . . .

Clerk's Papers, at 59.

In the petitioner's statement on plea of guilty, he specifically responded to the burglary charge by admitting, "While inside I assaulted [the victim] by striking and raping her." Clerk's Papers, at 31. Both the initial charge and the factual admission by the defendant intertwine the burglary with the rape and assault and support the trial court's determination. This intertwining helps bring the burglary up to the first degree.¹ Although the elements of the offense are met by the presence of either the deadly weapon or the assault and rape, the prosecutor's consistent reliance on the intent to commit rape indicates a connection between the two offenses as charged. This connection is further reflected in the defendant's statement and the police materials.

Looking at it from the perspective of objective intent and theoretical purpose, the two offenses here are even more closely connected. The purpose behind burglary is to enter a building or dwelling illegally in order to commit further criminal acts. Those further acts will be offenses in themselves, but they are still part of the burglary. Therefore, we cannot say, as the Court of Appeals did, that the burglary in this case was "completed" before the petitioner raped the victim.

A recognition of the close relationship between burglary and accompanying offenses is not new. The Court of Appeals in State v. Edwards, supra, referred to the Sentencing Guidelines Commission's position that burglary is "a crime in which the underlying offense would not be counted in the criminal history score." 45 Wn. App. at 381, citing Motion 84-368, Minutes, Sentencing Guidelines Comm'n, January 6, 1984.

With regard to the burglary, however, another issue arises: that of separate victims. Here, the initial victim of the burglary may have been the Center: Mr. Collicott apparently meant to steal the Center's sound equipment. In fact, if one looks to the victim's statements, one could reach the conclusion that Mr. Collicott would have done simply this had the rape victim not stepped out into the hall. But such an inquiry, aside from being speculative and unsupported by full factual findings, would focus on the petitioner's subjective intent. Because detailed factual findings could lead away from the objective analysis developed in Dunaway, we give the victim's statement no greater than equal the weight given to the information and the defendant's guilty plea.

While there may be two victims in the burglary as it occurred, the prosecutor's burglary charge focused on the crimes against the rape and kidnapping victim to raise it to the first degree. The central victim in the charging scheme, then, was also the victim of the other offenses. In addition, the two victims were also affected by one offense, not two. Thus, the issues presented in Dunaway — two victims in two separate offenses — is not present here. Because of the relationship between the burglary and the other crimes against the victim, we cannot disassociate her from the burglary for the purpose of identifying a separate victim to fit the Dun-away scheme.

We also note that the first degree rape charge itself partly depended upon the burglary for its definition. The prosecutor's information charged, in count 2:

[T]he defendant. . . did engage in sexual intercourse by forcible compulsion with [the victim] and did use or threaten to use a deadly weapon or what appeared to be a deadly weapon and/or did kidnap the said [victim] and/or did feloniously enter into the building where the said [victim] was situated, the defendant at said time being armed with a deadly weapon . . .

(Italics ours.) Clerk's Papers, at 59.

With regard to the kidnapping's relationship to the burglary and rape, the prosecutor's information specifically charged:

[T]he defendant. . . with intent to facilitate commission of the felonies of burglary and rape and flight thereafter, did intentionally abduct [the victim], a human being, the defendant at said time being armed with a deadly weapon . . .

Clerk's Papers, at 59. In his statement on plea of guilty, the petitioner admitted to this charge in language nearly identical to the charge itself. Clerk's Papers, at 31.

The offenses at issue here share elements unambiguously. Because the element of first degree kidnapping relevant to this case is abduction of another person with intent "[t]o facilitate commission of any felony or flight thereafter", the first degree charge simply would not stand without the other felonies. RCW 9A.40.020(l)(b). Seen in this light, the finding of the Court of Appeals that the burglary and rape were completed before the first degree kidnapping is not accurate. The kidnapping could not have been in the first degree had it not been for the first two crimes.

Under the analysis developed in Dunaway, then, Mr. Collicott's crimes all fall under the same criminal conduct.

IV

In holding that Mr. Collicott's crimes constituted the same criminal conduct, we make a distinction between the "same criminal conduct" inquiry and the doctrine of merger.

We have expressed the contours of our present merger doctrine in State v. Johnson, 92 Wn.2d 671, 600 P.2d 1249 (1979) (Johnson I), cert. dismissed, 446 U.S. 948 (1980) and State v. Vladovic, 99 Wn.2d 413, 662 P.2d 853 (1983). This doctrine is narrowly construed. As we stated in Vladovic:

[T]he merger doctrine is a rule of statutory construction which only applies where the Legislature has clearly indicated that in order to prove a particular degree of crime (e.g., first degree rape) the State must prove not only that a defendant committed that crime (e.g., rape) but that the crime was accompanied by an act which is defined as a crime elsewhere in the criminal statutes (e.g., assault or kidnapping).

Vladovic, at 420-21.

Merger is appropriate where all of the criminal behavior at issue can be defined under one greater offense, even though elements of this greater offense are offenses in themselves. In the merger situation, the lesser offenses do not include conduct that lies outside of the greater offense's definition. To determine whether merger applies, we often will look to see if the same evidence is used to supply proof for all of the merged offenses. See Vladovic, at 420; State v. Johnson, 96 Wn.2d 926, 932-33, 639 P.2d 1332 (1982) (Johnson II).

Activity which amounts to the "same criminal conduct" may not all fit within the definition of one greater offense. The present case serves as an illustration. Although Mr. Collicott's kidnapping charge depended on the other two felonies to reach the first degree, those other felonies did not merge because they represented additional activity (e.g., rape) outside the definition of kidnapping. In other words, the burglary, rape, and kidnapping charges are intimately related, but cannot be subsumed into one offense through merger. The offenses do not merge, and yet constitute the "same criminal conduct” as envisioned by RCW 9.94A.400(l)(a). See D. Boerner, Sentencing in Washington § 5.8(a) (1985).

While there may be similarities between the operation of the merger doctrine and the "same criminal conduct" analysis, we assume from its actions that the Legislature intended the two functions to be separate when it passed the Washington Sentencing Reform Act of 1981. This distinction is further indicated by the recent amendment to RCW 9.94A.400(l)(a). In 1987, the Legislature added the following definition of "same criminal conduct" to the statute: "'Same criminal conduct,' as used in this subsection, means two or more crimes that require the same criminal intent, are committed at the same time and place, and involve the same victim." Laws of 1987, ch. 456, § 5. We found in Dunaway that our objective analysis of criminal intent was consistent with this new definition. Dunaway, at 213 n.3. The absence of any reference to merger in the previous and present versions of RCW 9.94A.400(l)(a) leads us to conclude that the statute is meant to function independently from the merger doctrine.

V

As found by the trial court, we also find that the offenses committed by Eric Collicott are so intimately related that they constitute the same criminal conduct as defined by RCW 9.94A.400(l)(a). However, while the trial judge in this case correctly identified the petitioner's offenses as the same criminal conduct, he incorrectly counted each offense to apply to the remaining two in calculating the offender score. Because they meet the section .400(1) (a) test, the three offenses should count as one. With this in mind, we remand the case to the trial court to redetermine the petitioner's offender score.

Dore, Pearson, and Smith, JJ., concur. Dolliver, J., concurs in the result.

1 RCW 9A.52.020U) states:

"A person is guilty of burglary in the first degree if, with intent to commit a crime against a person or property therein, he enters or remains unlawfully in a dwelling and if, in entering or while in the dwelling or in immediate flight therefrom, the actor or another participant in the crime (a) is armed with a deadly weapon, or (b) assaults any person therein."