State v. Westwood

534 P.3d 1162

Opinion

FILE THIS OPINION WAS FILED FOR RECORD AT 8 A.M. ON SEPTEMBER 7, 2023 IN CLERK’S OFFICE SUPREME COURT, STATE OF WASHINGTON SEPTEMBER 7, 2023 ERIN L. LENNON SUPREME COURT CLERK

IN THE SUPREME COURT OF THE STATE OF WASHINGTON

STATE OF WASHINGTON, ) ) No. 100570-9 Petitioner, ) ) v. ) En Banc ) DAHNDRE KAVAUGN WESTWOOD, ) ) Filed: September 7, 2023 Respondent. ) )

JOHNSON, J.—In 1987, the legislature amended the sentencing law to add

a definition of “same criminal conduct” as “two or more crimes that require the

same criminal intent, are committed at the same time and place, and involve the

same victim.” RCW 9.94A.589(1)(a); former RCW 9.94A.400(1)(a) (1984).

Before this amendment, courts used the “same objective intent” test to determine

whether a defendant’s actions constituted same criminal conduct for sentencing

purposes. State v. Dunaway, 109 Wn.2d 207, 743 P.2d 1237, 749 P.2d 160 (1987).

Following the amendment, this court determined that the objective intent test from State v. Westwood, No. 100570-9

Dunaway continued to be part of the same criminal conduct analysis for defining

“same criminal intent.” Postamendment cases have consistently applied the

Dunaway test, requiring that courts look to the objective statutory criminal intent

of the crimes charged, as did the court in State v. Chenoweth, 185 Wn.2d 218, 370

P.3d 6 (2016).

Some lower courts have found conflict between the analysis in Dunaway and

that in Chenoweth. We take this opportunity to provide guidance on the

relationship between these cases and find that no conflict exists between these

preamendment and postamendment cases. We hold that the objective statutory

intent analysis is the proper test. We affirm the sentencing court’s decision and

reverse the Court of Appeals.

FACTS

The parties do not dispute the material facts. Dahndre Westwood entered

A.B.’s house around 4:30 a.m. A.B. saw Westwood standing in her hallway and

holding a knife in his hand. A.B. yelled at him to get out, but Westwood pushed

A.B. into her room and onto her bed. Westwood told her to get undressed and

threatened to kill her if she did not cooperate. A.B. screamed for help and pleaded

for her life; she clawed at Westwood and knocked the knife out of his hand. During

the struggle, Westwood nicked A.B. with the knife, leaving a scar on her cheek.

2 State v. Westwood, No. 100570-9

Westwood choked and suffocated A.B. to muffle her screams for help and hit her

repeatedly on the head.

Several cars passed A.B.’s house while this transpired, and the headlights

shone in the window. Westwood stopped his assault after the second or third set of

headlights passed. He threatened A.B. that if she told anyone about the assault he

would come back to kill her. Westwood then ran into the living room and out the

front door. A.B. called 911 and was taken to the hospital by first responders shortly

after.

At trial, a jury convicted Westwood of attempted rape in the first degree,

assault in the first degree, assault in the second degree,1 and burglary in the first

degree. At sentencing, Westwood argued that his convictions encompassed the

same criminal conduct for scoring purposes. The State disagreed and asked the

court to apply the analysis from Chenoweth. The trial court determined that the

three convictions did not constitute the same criminal conduct because each of the

crimes required a different statutory intent.

Westwood appealed, arguing that Dunaway controlled. The Court of

Appeals, Division Three, in an unpublished decision, remanded the case to the trial

court for determination of whether the convictions encompassed the same criminal

conduct under the analysis of Dunaway. The court noted that Chenoweth was

1 This charge was dismissed by the court based on double jeopardy issues.

3 State v. Westwood, No. 100570-9

limited to cases of rape and incest. State v. Westwood, No. 35792-9-III, slip op. at

13 (Wash. Ct. App. Mar. 19, 2020) (unpublished),

https://www.courts.wa.gov/opinions/pdf/357929_unp.pdf.

In April 2020, before the trial court could decide the new sentence on

remand, the Court of Appeals, Division Two, issued State v. Johnson, 12 Wn. App.

2d 201, 460 P.3d 1091 (2020), aff’d, 197 Wn.2d 740, 487 P.3d 893 (2021). In

Johnson, the court applied Chenoweth outside the context of child rape and incest.

On remand, the State again argued that the test from Chenoweth is correct.

The trial court again agreed and concluded that the defendant did not prove that the

crimes constituted same criminal conduct. Westwood again appealed. The Court of

Appeals, Division Three, acknowledged the conflict with Johnson but reversed and

remanded Westwood’s sentence with directions to apply Dunaway. State v.

Westwood, 20 Wn. App. 2d 582, 591-92, 500 P.3d 182 (2021). The State then

sought review by this court, which we granted. State v. Westwood, 199 Wn.2d

1030 (2022).

ANALYSIS

The legislature updated the Sentencing Reform Act of 1981 (SRA), ch.

9.94A RCW, in 1987, to clarify how courts will determine an offender score and

whether sentences will be served consecutively or concurrently. The relevant

section now reads:

4 State v. Westwood, No. 100570-9

(1)(a) Except as provided in (b), (c), or (d) of this subsection, whenever a person is to be sentenced for two or more current offenses, the sentence range for each current offense shall be determined by using all other current and prior convictions as if they were prior convictions for the purpose of the offender score: PROVIDED, That if the court enters a finding that some or all of the current offenses encompass the same criminal conduct then those current offenses shall be counted as one crime. Sentences imposed under this subsection shall be served concurrently. . . . “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.

RCW 9.94A.589.

The amendment established three elements for a finding of same criminal

conduct: same criminal intent, same time and place, and same victim. For separate

offenses to qualify as the same criminal conduct, all three elements must be

present; an absence of any one precludes a finding of same criminal conduct. State

v. Porter, 133 Wn.2d 177, 181, 942 P.2d 974 (1997). The default method of

calculating an offender score is to treat all current convictions as separate and

distinct criminal conduct. The burden of production and persuasion thus lies on the

defendant to establish that each element is met and their crimes constitute the same

criminal conduct. State v. Aldana Graciano, 176 Wn.2d 531, 539-40, 295 P.3d 219

(2013). The sentencing court has discretion to determine whether the defendant has

met their burden. “[A] sentencing court’s determination of same criminal conduct

5 State v. Westwood, No. 100570-9

will not be disturbed absent an abuse of discretion or misapplication of the law.”

Aldana Graciano, 176 Wn.2d at 541.

In this case, the second and third elements of same criminal conduct are

clearly satisfied. Only the first element, same criminal intent, is disputed. Since

courts have differed in their application of Chenoweth and Dunaway, we take this

opportunity to clear up any confusion and clarify the proper analysis for “same

criminal intent.”

Prior to the amendment to the SRA defining “same criminal conduct,” this

court interpreted the term in Dunaway. The Dunaway court did not apply the

amendment because the events in each of the consolidated cases occurred prior to

the effective date of the amendment and the court declined to give the amendment

retroactive effect. However, we stated definitively that the test for same criminal

conduct is an objective intent analysis. The court looked at the statutory criminal

intent of each of the offenses and whether the crimes furthered each other. We also

expressly rejected a focus on the defendant’s subjective intent and declined to

consider whether the defendants actually had a consistent intent throughout their

crimes. Dunaway, 109 Wn.2d at 216-17.

Looking closely at the Dunaway court analysis, we reversed the trial court

determination that two counts of kidnapping and two counts of robbery against two

separate victims were not the same criminal conduct. Important to our conclusion

6 State v. Westwood, No. 100570-9

was the statutory connection between the robbery and the first degree kidnapping.

We said, “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. RCW

9A.40.020(1)(b); RCW 9A.40.030. Therefore, robbery was the objective intent

behind both crimes.” Dunaway, 109 Wn.2d at 217. The court’s reasoning focused

on the statutory definition of intent for each of the crimes to support its conclusion.

The Dunaway court specifically cited to the criminal statutes because they were

relevant to the test.

Making this point clearer, the objective test articulated in Dunaway, that is,

the focus on the statutory definitions, is shown by what the Dunaway court

concluded in the consolidated cases, State v. Green, 46 Wn. App. 92, 730 P.2d

1350 (1986), and State v. Franklin, 46 Wn. App. 84, 729 P.2d 70 (1986), which

involved two separate Court of Appeals conclusions that robbery and attempted

murder convictions did constitute same criminal conduct. The Court of Appeals in

both cases utilized a continuous course of conduct type of analysis, essentially

holding that all crimes committed during a crime spree are one. We reversed and

rejected that reasoning.

We again focused on the statutory language. We said:

Green and Franklin each committed armed robbery and then each attempted to murder his victim. The murders were attempted after receiving the money but before leaving the premises. When viewed

7 State v. Westwood, No. 100570-9

objectively, the criminal intent in these cases was substantially different: the intent behind robbery is to acquire property while the intent behind attempted murder is to kill someone. RCW 9A.56.190; RCW 9A.32.030. The defendants have argued that the intent behind the crimes was the same in that the murders were attempted in order to avoid being caught for committing the robberies.[2] However, this argument focuses on the subjective intent of the defendants, while the cases make clear that the test is an objective one.

Dunaway, 109 Wn.2d at 216.

The Court of Appeals also applied the objective intent analysis in State v.

Edwards, 45 Wn. App. 378, 725 P.2d 442 (1986), overruled in part by Dunaway,

109 Wn.2d 207. The Edwards opinion relied on State v. Calloway, 42 Wn. App.

420, 711 P.2d 382 (1985). The critical language in Calloway being “[t]he test for

the ‘same course of conduct’ is an objective one that is not dependent upon the

offender’s subjective intent, beyond the mental state required for commission of

the offense.” 42 Wn. App. at 424 (emphasis added). The Calloway court expressly

rejected considering the defendant’s own subjective intent, stating that subjective

intent did not convert the two crimes into one.

Applying statutory interpretation is the most reasonable way to reach an

“objective” conclusion on whether criminal intent in separate criminal acts

constitute the same criminal conduct. The State must charge the required statutory

intent, and the jury must be instructed on and find proof of that statutory element.

2 As the Court of Appeals concluded.

8 State v. Westwood, No. 100570-9

This was the proper analysis for three separate defendants in Dunaway and earlier

Court of Appeals cases. It has remained the proper analysis in postamendment

cases.

In Lessley, following Dunaway and the SRA amendment, we stated that

Dunaway “is entirely consistent with the statutory test set out in the 1987

amendment to the ‘[s]ame criminal conduct’ provision.” State v. Lessley, 118

Wn.2d 773, 777-78, 827 P.2d 996 (1992) (alteration in original). We used the same

test of objective criminal intent and whether one crime furthered another. We

concluded that under Dunaway, the burglary and kidnapping committed by

defendant Lessley were not the same criminal conduct because the intent was not

the same for both crimes and neither furthered the other. Lessley, 118 Wn.2d at

778. We again rejected the subjective intent test, noting that it was irrelevant, and

the court would only be speculating if it made assumptions about the defendant’s

actual intent.

In State v. Lewis, 115 Wn.2d 294, 797 P.2d 1141 (1990), we also applied the

objective intent test. We looked at whether the defendant’s objective intent

remained the same while committing the criminal acts, in this case, intent to sell

drugs. If the intent is the same, the courts must then consider whether the offenses

were committed as part of the same scheme or plan and whether one crime

furthered the other, with no substantial change in the nature of the criminal

9 State v. Westwood, No. 100570-9

objective. There, while the defendant had a single intent through each of the

crimes, we determined that the defendant’s acts were not the same criminal

conduct because each of the drug deals he was convicted of did not happen at the

same time and were not part of the same scheme or plan. Lewis, 115 Wn.2d at 302.

In State v. Bobenhouse, 166 Wn.2d 881, 896, 214 P.3d 907 (2009), we

looked specifically at whether a single act, punishable by two statutes with separate

criminal intent, may constitute same criminal conduct for sentencing purposes.

There we rejected the defendant’s argument that first degree child rape and first

degree incest involve the same criminal intent, sexual intercourse. Such a

conclusion required the court to speculate about the defendant’s subjective intent,

an analysis we consistently rejected. We quoted from another case, State v. Calle,

125 Wn.2d 769, 888 P.2d 155 (1995), that “‘the Legislature intended to punish

incest and rape as separate offenses, even though committed by a single act.’”

Bobenhouse, 166 Wn.2d at 896 (quoting Calle, 125 Wn.2d at 780). In Calle, the

court looked at the differing purposes of the incest and rape statutes and their

different locations in the criminal code as evidence of the legislature’s intent to

punish both as separate offenses. In both of these cases, the statutory intent was

relevant to the analysis.

Chenoweth built on the analysis in these and other postamendment cases. In

Chenoweth, a case involving incest and rape of a child, the defendant made the

10 State v. Westwood, No. 100570-9

same argument as in Bobenhouse, that two crimes based on a single act constitute

the same criminal conduct as a matter of law. We looked solely at the statutory

intent of each of the crimes. We concluded that when objectively viewed under the

statutes, the two crimes of incest and rape of a child involved separate intent.

“Chenoweth’s single act is comp[o]sed of separate and distinct statutory criminal

intents and therefore under RCW 9.94A.589(1)(a) do[es] not meet the definition of

‘same criminal conduct.’” Chenoweth, 185 Wn.2d at 223.

Westwood makes two arguments: that Dunaway was not explicitly or

implicitly overruled by this court in Chenoweth and that Chenoweth applies only to

cases involving rape of a child and incest. On the first point, he is correct,

Dunaway is still good law, and Chenoweth does not mention Dunaway, let alone

overrule it. On the second point, he is incorrect. As outlined above, Chenoweth

uses an analysis that has consistently been applied, first in Dunaway and later in

postamendment cases, looking at the objective statutory intent of the crimes

charged in order to determine the criminal intent element. The analysis extends to

cases beyond those involving incest and rape of a child. Westwood also contends

that Chenoweth and Bobenhouse directly conflict with Dunaway. He builds on this

self-constructed conflict to urge overruling Chenoweth and Bobenhouse, arguing

that Chenoweth is harmful because it causes confusion in the lower courts. He is

incorrect that any conflict exists.

11 State v. Westwood, No. 100570-9

Under a proper reading of both cases, Chenoweth and Dunaway are not

inconsistent and neither overrules the other. The court in Chenoweth looked at the

statutory intent of the offenses, as did the court in Dunaway. The statutory intent is

relevant in determining whether the objective intent prong is satisfied. Looking to

any other source of intent has the potential to lean too closely to the subjective

analysis that we have always rejected.

To further clarify when same criminal intent is satisfied, in cases where we

determined the crimes did encompass the same criminal conduct, there was a

connection in the statutory definitions, with the statutory intent element of the

crimes being either identical or very similar. In State v. Tili, 139 Wn.2d 107, 985

P.2d 365 (1999), we concluded that the defendant’s three rape convictions were the

“same criminal conduct” after looking at whether the three acts of rape involved

the same objective criminal intent. Tili was charged with multiple counts of the

same crime (rape) and Tili’s actions consisted of an unchanging pattern of conduct,

coupled with an extremely close time frame. There was strong support for the

conclusion that his objective criminal intent did not change and was the same

criminal conduct, as it was the only intent necessary to support the convictions.

Likewise, in State v. Garza-Villarreal, 123 Wn.2d 42, 49, 864 P.2d 1378

(1993), we looked at the statutory intent of the crimes charged, determining that

possession with intent to deliver any substance was the same objective criminal

12 State v. Westwood, No. 100570-9

intent, and delivery of any controlled substance was also the same objective

criminal intent. We concluded that each of the crimes were committed in

furtherance of the same objective criminal intent, for Joseph Casarez an intent to

deliver a controlled substance in the present and for Francisco Garza-Villareal an

intent to deliver a controlled substance in the future, and thus under the Dunaway

test were considered the same criminal conduct.

In determining “same criminal conduct,” it makes sense to look at the

statutory definitions of the crimes to determine the objective intent, and indeed,

this has consistently been the starting point for our cases. When read properly,

Dunaway relies on the statutory definitions of “intent” for each of the crimes to

determine objective intent. This is consistent with Chenoweth. If the objective

intent for the offenses were the same or similar, courts can then look at whether the

crimes furthered each other and were part of the same scheme or plan. If the

actions occurred in close proximity, and the nature of the crime did not change

significantly throughout, the offenses may be considered the same criminal

conduct for sentencing purposes. This analysis prevents courts from speculating

about the defendant’s proposed subjective purpose and instead looks solely at the

objective intent and whether the crimes were closely related enough to justify a

finding of same criminal conduct.

13 State v. Westwood, No. 100570-9

In this case, Westwood was convicted of attempted rape in the first degree,

assault in the first degree, and burglary in the first degree. Assault in the first

degree is a serious crime, which requires “intent to inflict great bodily harm.”

RCW 9A.36.011. Attempted rape in the first degree requires intent to commit the

crime of rape. RCW 9A.28.020. First degree burglary requires “intent to commit a

crime against a person or property.” RCW 9A.52.020. It makes no sense to

conclude that a person who has been found guilty of attempted rape in the first

degree, first degree burglary, and first degree assault should receive the same

punishment as a person convicted of just one of these crimes. The legislature

certainly intended that the intent necessary to prove attempted rape, first degree

burglary, and first degree assault differ.

The amendment to the statute requires that we apply the objective intent

analysis, little different than the objective analysis outlined in Dunaway. Under

Chenoweth, and under a proper reading of Dunaway, this means that we look to the

statutory intent of the crimes as the starting point in determining whether the

crimes should be treated as one. Here, separate and distinct charges were brought,

each alleging the statutory intent element necessary to support each charge; the

State produced evidence and testimony to support each charge; the jury was

instructed on the elements for each charge, including the separate statutory intent

of each; the jury found beyond a reasonable doubt that each separate charge was

14 State v. Westwood, No. 100570-9

proved; and no challenge is raised here concerning the sufficiency of the evidence

supporting any of the charges. The objective intent analysis points to the

conclusion that Westwood’s crimes did not have the same objective criminal intent

and that the crimes did not further the others.

Accordingly, we affirm the sentencing court’s conclusion and reverse the

Court of Appeals.

:(&21&85

15 State v. Westwood (Dahndre Kavaugn)

No. 100570-9

MADSEN, J. (dissenting)—For decades, Washington courts have followed State

v. Dunaway, which established the objective intent test, to determine same criminal

conduct. 109 Wn.2d 207, 214-15, 743 P.2d 1237, 749 P.2d 160 (1987). But, in State v.

Bobenhouse, 166 Wn.2d 881, 896, 214 P.3d 907 (2009), this court began to conflate the

same criminal conduct test with the test for double jeopardy, leading to the confusion

evidenced in this case. Instead of providing clarity, the majority reinvents the objective

intent test and says that the test actually focuses on the statutory definitions of the crimes

to determine the objective intent.

Unfortunately, the majority’s view is an incorrect interpretation of our cases that

have consistently applied the objective intent test since Dunaway and will only add to the

confusion. Worse, though, the majority takes away an important tool that the legislature

gave to trial judges to ameliorate the harsh effect of prosecutorial overcharging. The

legislature provided that crimes, when committed with the same objective intent to

further a criminal act against the same victim at the same time, regardless of their

statutory elements, would be punished only once. Without this statutory protection, No. 100570-9 Madsen, J., dissenting

prosecutors may charge multiple crimes arising in a single incident, each carrying its own

punishment, and a trial judge would be required to impose a sentence for each crime. By

folding the statutory same criminal conduct test into a double jeopardy analysis, the

majority removes the judicial discretion for trial judges intended by the legislature. In a

criminal justice system plagued by racial and income inequality, the majority’s decision

is extremely unfortunate.

This court has been given the opportunity to correct the schism created by

Bobenhouse and State v. Chenoweth, 185 Wn.2d 218, 370 P.3d 6 (2016), and we should

take it. A correct interpretation and application of the objective intent test under

Dunaway focuses on the extent to which the criminal intent, as objectively viewed,

changed from one crime to the next, not on the statutory criminal intent, which is the

focus of a double jeopardy analysis. I disagree with the majority and respectfully dissent.

Discussion

The majority, in analyzing Dunaway, concludes that the test to determine same

criminal conduct is an objective intent test whereby courts focus on the statutory criminal

intent of the crimes. Majority at 6-7. Initially, it is difficult to square the idea that the

statutory criminal intent can be objective—it cannot. More importantly, for decades, this

court and the Court of Appeals have said it is not. Despite its claims and assurances to

the contrary, the majority interprets Dunaway and its progeny incorrectly.

To understand the original statutory protection put in place by the legislature, we

must go back the to the beginning, starting with Dunaway, and discuss each case

2 No. 100570-9 Madsen, J., dissenting

following Dunaway in detail because the facts are related to the application of the

Dunaway standard.

1. Dunaway’s Same Criminal Intent Test

Though Dunaway is our starting point, it began with a preface. Dunaway looked

first to State v. Edwards, 45 Wn. App. 378, 725 P.2d 442 (1986), overruled in part by

Dunaway, 109 Wn.2d 207, and concluded based on legislative intent, that courts should

focus on the extent to which the criminal intent, as objectively viewed, changed from one

crime to the next in deciding if crimes encompass the same criminal conduct for purposes

of calculating a defendant’s offender score. See Dunaway, 109 Wn.2d at 214-15.

Dunaway overruled Edwards on other grounds; Edwards’ same criminal intent teachings

remain instructive. 1

In Edwards, a defendant pleaded guilty to kidnapping in the second degree and

assault in the second degree. Edwards’ former supervisor gave Edwards a ride after he

visited her to complain about his last paycheck. Edwards, 45 Wn. App. at 379. When

the two met, Edwards entered the car, drew a handgun, and pointed the handgun at his

supervisor. The supervisor then drove Edwards around for some distance before she

parked at a fire station and called for help. A paramedic, who worked at the fire station,

approached the car. Edwards waved the handgun at the paramedic, and the paramedic

1 Dunaway overruled Edwards in part. In Edwards, the Court of Appeals determined that crimes committed against two victims could encompass the same criminal conduct. Dunaway disagreed and held that “[c]onvictions of crimes involving multiple victims must be treated separately.” 109 Wn.2d at 215. Edwards’ overruling does not impact this case because the present case involves crimes against one victim.

3 No. 100570-9 Madsen, J., dissenting

backed away. The waving of the handgun at the paramedic supported the assault charge,

and the abduction of the supervisor supported the kidnapping charge.

At sentencing, the trial judge decided each crime should be treated separately as

part of Edwards’ criminal history. Id. The Court of Appeals reversed, concluding that

Edwards’ kidnapping and assault charges encompassed the same criminal conduct for

three reasons. Id. at 382.

First, the kidnapping was intimately related to the assault. In other words,

Edwards’ criminal objective remained the same and there was no substantial change in

the nature of Edwards’ criminal objective between the kidnapping and the assault. Id.;

see also State v. Adcock, 36 Wn. App. 699, 706, 676 P.2d 1040 (1984) (determining that

a criminal event that is intimately related or connected to another criminal event is held to

arise out of the same criminal conduct); see also State v. Erickson, 22 Wn. App. 38, 42-

44, 587 P.2d 613 (1978) (concluding that a charge of unlawfully possessing a pistol

found in the defendant’s possession at the time of arrest was intimately connected to a

charge of second degree burglary).

Second, the commission of the kidnapping continued when Edwards assaulted the

paramedic. Edwards, 45 Wn. App. at 382; see State v. Calloway, 42 Wn. App. 420, 423-

24, 711 P.2d 382 (1985) (concluding that two or more offenses are considered to have

been committed as part of a “‘single course of conduct’” if during that conduct “‘there

was no substantial change in the nature of the criminal objective’” (quoting MODEL

SENT’G & CORR. ACT §§ 3-105, 3-107 (1979))).

4 No. 100570-9 Madsen, J., dissenting

Finally, the assault on the paramedic was committed in furtherance of the

supervisor’s kidnapping. Edwards, 45 Wn. App. at 382.

The Edwards court also drew from Washington’s Juvenile Justice Act of 1977

(JJA), ch. 13.40 RCW, in concluding that “same criminal conduct” should be determined

by an objective intent standard. See id. at 380. Under the JJA, separate convictions may

be treated as one if they arise out of the same course of conduct. Former RCW

13.40.020(6)(a) (1977). 2 The Washington State Sentencing Guidelines Commission also

noted former RCW 9.94A.400(1) (1984) included the phrase “same criminal conduct.”

In its 1984 sentencing manual, the commission explained, “‘Subsection (1) includes the

phrase “same criminal conduct.” A Washington appellate court, in another context,

interpreted this ph[r]ase to mean: “A criminal event which is intimately related or

connected to another criminal event.” This language comes from State v. Adcock, 36 Wn.

App. 699 (1984)[,] interpreting the juvenile code’s phrase “the same course of conduct.”

Also see State v. Erickson, 22 Wn[.] App. 38[] (1978).’” Dunaway, 109 Wn.2d at 215

n.5 (some alterations in original) (quoting WASH. STATE SENT’G GUIDELINES COMM’N,

SENTENCING GUIDELINES § 9.94A.400, cmt. at II-40 (1984)).

2 Former RCW 13.40.020(6)(a) provides that (6) “Criminal history” shall include all criminal complaints against the respondent where: (a) The allegations were found correct by a juvenile court. In any judgment where a respondent is convicted of two or more charges arising out of the same course of conduct, where one charge is included within the other, then only the highest charge from among these shall count as an offense for the purposes of this chapter.

5 No. 100570-9 Madsen, J., dissenting

The majority’s view fails to recognize that Dunaway adopted the Edwards

standard: whether (1) the criminal intent, as objectively viewed, changed from one crime

to the next, (2) one crime furthered the other, and (3) the time and place of the two crimes

were the same. Id. at 214-15 (citing Edwards, 45 Wn. App. at 382). 3

Instead of following the standard as established in Edwards, the majority focuses

on the statutory definitions of criminal intent and opines that the Dunaway court relied on

statutory language in resolving State v. Green, 46 Wn. App. 92, 730 P.2d 1350 (1986),

and State v. Franklin, 46 Wn. App. 84, 729 P.2d 70 (1986). 4 Majority at 7. The majority

is incorrect in its new and surprising interpretation of Dunaway. To uncover this

astonishing reading of Dunaway, we must first examine its reasoning in Green and

Franklin.

In Green, a jury convicted the defendant of first degree robbery and attempted first

degree murder when the defendant entered a donut shop, pointed a gun at an employee,

demanded money, hit the employee on the head with his gun, and shot him twice in the

back. Dunaway, 109 Wn.2d at 210.

Applying the objective intent test, Green’s criminal intent, as objectively viewed,

changed from one crime to the next. Green’s intent to commit first degree robbery, when

viewed objectively, was complete when the employee handed the defendant the money.

3 Prior to our decision in Dunaway, the legislature amended the relevant statutes to include the definition of “same criminal conduct” now at issue. However, the court in Dunaway declined to apply the statutory amendment because the conduct predated the amendment. 4 The court consolidated State v. Green (No. 6872-2-III), State v. Franklin (No. 7049-2-III), and State v. Dunaway (Nos. 53482-9, 53574-4).

6 No. 100570-9 Madsen, J., dissenting

Id. at 216. The defendant formed a different intent, an intent to murder, when he hit the

employee with his gun and shot the employee twice in the back. Id.

Applying the second element in the Edwards standard to these facts, when viewed

objectively, it is clear that one crime did not further the other. The defendant completed

the crime of first degree robbery when he pointed a gun at the employee, told the

employee to open the cash register, and received money. Id. Objectively viewed, the

defendant’s intent changed from an intent to steal money to killing a witness when he

shot the employee twice in the back before running out of the store. Id. The Dunaway

court correctly recognized that the attempted murder did not further the taking since it

occurred after the defendant had received the money and that the objective intent changed

from taking the money to killing the witness. Id.

Similarly, in Franklin, a jury convicted the defendant of first degree robbery and

attempted first degree murder when the defendant entered a pizza parlor, brandished a

knife to an employee, demanded money from the employee, and stabbed the employee

twice in the back before the employee escaped. Id. at 211.

Viewed objectively, the defendant’s criminal intent changed from one crime to the

next. The defendant’s intent to commit first degree robbery concluded when he pulled

out a knife, showed it to the employee, demanded money from the employee, and

received the money. The defendant formed a different intent to commit attempted first

degree murder when he told the employee to get on her knees and put her hands behind

her back before stabbing the employee twice. Id. at 216.

7 No. 100570-9 Madsen, J., dissenting

Like the defendant in Green, the defendant’s crime in Franklin did not further the

other. Franklin’s crime of first degree robbery was completed when he entered the pizza

parlor, pulled a knife on the employee, demanded money, and received money. The

defendant’s objective intent changed to eliminating a witness when he stabbed the

employee twice in the back.

Unlike Green and Franklin, the defendant’s criminal intent in Dunaway, as

objectively viewed, did not change from one crime to the next. In other words, the

defendant’s intent remained the same: his objective was to commit robbery. See id. at

217. The defendant’s crime of first degree kidnapping furthered the intent to commit first

degree robbery when the defendant unlawfully entered the victims’ car, brandished a gun,

and forced them to drive to Seattle. Id. at 211. Upon arriving in Seattle, the defendant

told one of the victims to enter a bank and retrieve money. Id. When that victim did not

return, the defendant told the second victim to move from the driver’s seat so that he

could drive and escape. Id. at 212. Clearly, the kidnapping was a part of the objective

intent to rob the victim and to further the robbery. See generally id. at 211-12, 217.

As to each of the defendants in Green, Franklin, and Dunaway, this court

considered the Edwards standard, applied the standard to each case, and concluded that

the inquiry, when determining criminal intent under a same criminal conduct analysis, is

to examine whether the criminal intent, as objectively viewed, changed from one crime to

the next.

8 No. 100570-9 Madsen, J., dissenting

2. The Majority Misunderstands Edwards’ Reliance on Calloway

The majority now claims that the Court of Appeals’ conclusion in Edwards relied

on Calloway. Majority at 8. Again, the majority is incorrect. While the court in

Edwards indeed looked to Calloway, it did so only to establish that there must be a

“physical or causal connection between offenses.” Edwards, 45 Wn. App. at 381.

In Calloway, a juvenile defendant, Darrin Calloway, was convicted of one count

of taking a motor vehicle without the owner’s permission in 1984. 42 Wn. App. at 421.

Nearly a year later, Calloway was convicted of attempted burglary in the second degree

and possessing stolen property in the third degree. Calloway admitted to the police that

he and his cousin planned to “‘hit a couple of houses’” as they walked to Calloway’s

home. Id. at 422. When Calloway and his cousin arrived at Calloway’s house, they

noticed that Calloway’s neighbor was gone. The two then burglarized the neighbor’s

home. Afterward, they walked to a bus stop, saw an empty home, and committed the

second burglary. Id.

At sentencing, Calloway argued that the court erred when it committed him to 13

to 16 weeks of confinement for the first burglary and another 21 to 28 weeks of

confinement for the second burglary. Both burglaries occurred within one hour. Id. He

maintained that because both robberies were committed within one hour for the sole

purpose of gaining money to purchase drugs, the robberies were part of the same course

of conduct. Id.

9 No. 100570-9 Madsen, J., dissenting

The Court of Appeals held that Calloway’s robberies did not arise from the same

course of conduct. Id. at 424-25. Under the JJA, Calloway’s standard range of

disposition is determined by age, the offense committed, and criminal history. In

determining his criminal history, only the highest charge between offenses counts as an

offense if the offenses arose “‘out of the same course of conduct.’” Id. at 423. The JJA,

however, failed to define “same course of conduct.” Id. As a result, the court in

Calloway turned to Adcock. Id. at 423-24. Relying on Webster’s Third New

International Dictionary definition for “course of,” 5 the Adcock court determined that the

defendant’s offenses were not “committed as part of any ordered or continuing sequence

or under any recognizable scheme or plan.” 36 Wn. App. at 706. Adcock additionally

noted that “[a] criminal event which is intimately related or connected to another criminal

event is held to arise out of the same criminal conduct.” Id.; see also Erickson, 22 Wn.

App. at 44 (determining that a defendant’s unlawful possession of a pistol at the time of

arrest was intimately related to a charge of second degree burglary and arose out of the

same criminal conduct).

Expanding on Adcock’s definition of “same course of conduct,” Calloway

concluded that “[t]he phrase implies . . . some physical or causal connection between

offenses.” 42 Wn. App. at 423 (emphasis added). Important to its conclusion, the

Calloway court indeed focused on the physical and causal connection between the two

5 “[A]n ordered continuing process, succession, sequence, or series.” WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY 522 (1969).

10 No. 100570-9 Madsen, J., dissenting

burglaries at issue: “The criminal objectives of each crime, though identical, that is

burglary of a house, were distinct and were separately realized upon the completion of

each crime.” Id. at 424 (emphasis added). Thus, the burglaries did not arise out of the

same course of conduct because “[t]he facts indicate that the burglaries were random

crimes, committed as the opportunities arose” and because “[t]hey were committed

during separate courses of conduct.” Id. (emphasis added).

Calloway did not, as the majority suggests, focus on or discuss the statutory intent

between crimes. Instead, the court emphasized the importance of the physical or causal

connection between the crimes and whether the criminal objective of each crime was

distinct and separately realized. See generally id.

3. State v. Lessley Applied the Dunaway Standard

While I agree with the majority that State v. Lessley, 118 Wn.2d 773, 777, 827

P.2d 996 (1992), affirmed Dunaway, the majority misreads Lessley in saying that the case

applied a statutory intent test to determine objective criminal intent under a same criminal

conduct analysis. See majority at 9.

Lessley considered an amendment to former RCW 9.94A.400(1)(a), which added

to the statute the definition of “same criminal conduct” and reaffirmed the test for same

criminal conduct adopted in Dunaway. 118 Wn.2d at 777 (quoting LAWS OF 1987, ch.

456, § 5, at 1980). Specifically, Lessley held that “[t]aken together, RCW

9.94A.400(1)(a) and Dunaway require three elements: the same objective criminal intent

11 No. 100570-9 Madsen, J., dissenting

(which can be measured by determining whether one crime furthered another), the same

time and place, and the same victim.” Id. at 778.

In Lessley, the defendant, Dallas Lessley, pleaded guilty to burglary in the first

degree, kidnapping in the second degree, kidnapping in the first degree, and intimidating

a witness. Id. at 776. One evening, Lessley, while armed with a gun, forcefully broke

into the home of George Thomas, Janette Thomas, and Dorothy Olson—Mr. and Mrs.

Thomas’ daughter—and demanded to see Olson. Id. at 775. While Mr. Thomas escaped

from the house and called the police, Lessley commanded Olson and Mrs. Thomas into

Olson’s car, where he forced Olson to drive and Mrs. Thomas to accompany them. Id.

Lessley threatened to shoot Mrs. Thomas if she refused. Id.

Lessley then told Olson to drive to a house in Maple Valley. Id. Upon arrival,

Lessley pointed the gun at Mrs. Thomas and ordered her to step out of the car. Id.

Lessley then drove himself and Olson toward North Bend, stopped the car, assaulted

Olson, and threatened to shoot her. Id. After this altercation, Lessley and Olson returned

to the Maple Valley house, picked up Mrs. Thomas, and took her home. Id. Lessley then

took Olson to another house in White Center, where the police arrested him. Id.

At sentencing, Lessley argued that the charges of burglary in the first degree and

kidnapping in the first degree were the same criminal conduct and should be counted as

one in determining his sentence because he entered the home with the intent to take

Olson away. Id. at 776. The trial court disagreed, and the Court of Appeals affirmed that

the first degree burglary and first degree kidnapping convictions did not encompass the

12 No. 100570-9 Madsen, J., dissenting

same criminal conduct. Id. at 777. Important to its conclusion, the court recognized that

the Dunaway test “focuses on the extent to which a defendant’s criminal intent, as

objectively viewed, changed from one crime to the next” and that “[u]nder that test, if

one crime furthered another, and if the time and place of the crimes remained the same,

then the defendant’s criminal purpose or intent did not change and the offenses

encompass the same criminal conduct.” Id. Most importantly, the court in Lessley

expressly stated that “[t]aken together, [former] RCW 9.94A.400(1)(a) and Dunaway

require three elements: the same objective criminal intent (which can be measured by

determining whether one crime furthered another), the same time and place, and the

same victim.” Id. at 778 (emphasis added).

Under a correct application of the Dunaway test, Lessley’s criminal intent, when

viewed objectively, changed. Id. Lessley’s intent to commit first degree burglary was

completed when he forcefully entered the residence while armed with a gun. In his

concurring opinion, Judge William Baker described Lessley’s objective as follows:

Crimes which he objectively intended to commit [in the home] included the property damage caused when he broke in, the assault against Mr. Thomas, and the assaults against Mrs. Thomas and his former girl friend Dorothy Olson. His subjective intent is irrelevant, and we would only be speculating to assume that that subjective intent was to kidnap and [assault] his former girl friend. He may initially only have intended to confront her.

State v. Lessley, 59 Wn. App. 461, 468-69, 798 P.2d 302 (1990). Lessley’s criminal

intent, as objectively viewed, thus changed when he moved from the burglary to the

kidnapping. Lessley, 118 Wn.2d at 778.

13 No. 100570-9 Madsen, J., dissenting

As to the second element under the Dunaway test, it is clear that the crime of

burglary in the first degree did not further the crime of kidnapping in the first degree. Id.

Finally, as to the third element, the time and place of the crimes were not the

same. The burglary in the first degree occurred at the Thomases’ residence in Seattle.

The kidnapping in the first degree occurred over several hours in multiple cities,

including Seattle, Maple Valley, North Bend, and White Center. Id. at 778.

Contrary to the majority’s assertion, the court in Lessley did not rely on or discuss

the burglary or kidnapping statutes in determining criminal intent. Instead, the court

looked at whether Lessley’s criminal intent, as objectively viewed, changed between the

first degree burglary conviction and the first degree kidnapping conviction.

4. The Majority Misconstrues State v. Lewis

Next, the majority cites State v. Lewis, 115 Wn.2d 294, 797 P.2d 1141 (1990), as

support. Majority at 9-10. While Lewis indeed extrapolated the test from Dunaway, I

must disagree with the majority’s view that the Lewis court examined statutory criminal

intent under a same criminal conduct analysis.

In Lewis, this court determined that a defendant’s conviction of selling cannabis

on three occasions to a police informant and attempted delivery on a fourth occasion did

not encompass the same criminal conduct. 115 Wn.2d at 303. There, the defendant,

Jeffery Lewis, delivered cannabis to a police informant on three occasions between April

and May 1987. Id. at 296. On Lewis’ fourth attempt to deliver the drug, the police

arrested him. Id. at 297. The police executed a search warrant on Lewis’ multiple

14 No. 100570-9 Madsen, J., dissenting

properties and found hundreds of cannabis plants. Lewis admitted that he owned the

plants, and the prosecutors charged him with seven separate counts for violating the

Uniform Controlled Substances Act, ch. 69.50 RCW. Id.

The trial court found Lewis guilty of each of the seven counts and sentenced him

to 43 months of confinement. Id. On appeal to this court, Lewis argued that the trial

court should have dismissed the deliveries and attempted delivery charges and that the

charges should not have been factored in determining his offender score. Id. He

contended that the three deliveries and the attempted delivery of cannabis encompassed

the same criminal conduct because the four crimes were committed through the police

and occurred between the same parties and at the same location. Id. at 297-98. This

court recognized that “[t]he applicable test to analyze whether a series of actions by a

defendant encompassed the same criminal conduct was formulated . . . in State v.

Dunaway, 109 Wn.2d 207, 743 P.2d 1237, 749 P.2d 160 (1987).” Id. at 301.

The court focused “‘on the extent to which the criminal intent, as objectively

viewed, changed from one crime to the next,’” and not on the statutory intent of the

crimes. Id. (quoting Dunaway, 109 Wn.2d at 215) (emphasis added). Drawing from

Dunaway, the court in Lewis applied the Edwards’ factors and held that “[b]ecause the

four violations of the Uniform Controlled Substances Act by the defendant were carried

out on separate dates and Lewis formed a separate objective criminal intent to execute

each act, his crimes were not ‘same criminal conduct.’” Id. at 303 (emphasis added).

15 No. 100570-9 Madsen, J., dissenting

As to the first element under Dunaway, Lewis’ criminal intent, as objectively

viewed, changed from one crime to the next because he formed a different intent between

each delivery.

As to the second element, “[Lewis’] acts were not part of a single criminal conduct

because the commission of one drug deal did not further the commission of the other

drug deals, and they were not part of a recognizable scheme or plan.” Id. at 302. In other

words, Lewis’ three deliveries of cannabis did not further his fourth attempted delivery.

Finally, as to the third element, while the time and place of the drug deliveries and

the attempted delivery occurred at the same time and location, the court recognized that

“the same time and place analysis applies only when there is a continuing sequence of

criminal conduct.” Id. The court concluded that Lewis’ three deliveries and attempted

delivery did not occur at the same time and place because the crimes were executed on

separate dates. Id. at 303. In other words, this court concluded that Lewis’ crimes of

delivery and attempted delivery did not encompass the same criminal conduct by

examining whether the criminal intent, as objectively viewed, changed from one crime to

the next and not through an analysis of the crimes’ statutory intent.

5. Dunaway, Bobenhouse, and Chenoweth Are Irreconcilable

Now comes the majority’s biggest error—it attempts to square the Dunaway test

with this court’s decision in Bobenhouse. Majority at 10-11. In Bobenhouse, a jury

convicted Phillip Bobenhouse of three counts of first degree rape of a child and two

counts of first degree incest. 166 Wn.2d at 886-87. On appeal, Bobenhouse argued that

16 No. 100570-9 Madsen, J., dissenting

the trial court abused its discretion when it found that the child rape and incest charges,

which stemmed from forcing his young children to have sex, did not encompass the same

criminal conduct. Id. at 896. The court rejected this argument in one sentence, stating,

“Bobenhouse’s argument must fail in light of the precedent set by our decision in [State

v.] Calle[, 125 Wn.2d 769, 888 P.2d 155 (1995)].” Id.

Bobenhouse, however, erroneously applied Calle. Calle involved double jeopardy

concerns arising out of a single act of intercourse. See generally 125 Wn.2d at 771.

There, we held the double jeopardy clause did not prevent convictions for both second

degree rape and first degree incest arising out of a single act of intercourse. Id. at 782.

Indeed, Calle reiterated that it solely addressed double jeopardy. Id. at 771 (“At issue in

this case is whether the Defendant’s convictions for first degree incest and second degree

rape violate the Fifth Amendment’s protection against double jeopardy because they

arose from a single act of intercourse” (emphasis added)), 774 (“[D]ouble jeopardy is at

issue here because of the possibility that rape and incest are the same offense when they

arise out of the same act of intercourse, regardless of the concurrent sentences.”

(emphasis added)), 776 (“Our review here is limited to assuring that the court did not

exceed its legislative authority by imposing multiple punishments for the same offense.”

(emphasis added)).

Herein lies the confusion. Bobenhouse quoted Calle, but that language appears in

Calle’s analysis of double jeopardy and does not relate to the same criminal conduct

analysis. 166 Wn.2d at 896 (quoting Calle, 125 Wn.2d at 780). Further, our case law has

17 No. 100570-9 Madsen, J., dissenting

repeatedly held that the double jeopardy analysis and the same criminal conduct analysis

are separate and distinct. See State v. Hatt, 11 Wn. App. 2d 113, 139, 452 P.3d 577

(2019) (“A claim that the trial court erred in determining whether two crimes constituted

the same criminal conduct differs from a double jeopardy violation claim.” (emphasis

added)); see also State v. French, 157 Wn.2d 593, 611, 141 P.3d 54 (2006) (“A double

jeopardy violation claim is distinct from a ‘same criminal conduct’ claim and requires a

separate analysis.” (emphasis added)). As this court determined in State v. Tili,

[T]he “same criminal conduct” analysis under the Sentencing Reform Act of 1981, and the “unit of prosecution” analysis under double jeopardy are distinct. The “unit of prosecution” analysis is involved during the charging and trial stages, focusing on the Legislature’s intent regarding the specific statute giving rise to the charges at issue. The “same criminal conduct” analysis, on the other hand, involves the sentencing phase and focuses on (1) the defendant’s criminal objective intent, (2) whether the crime was committed at the same time and place, and (3) whether the crime involved the same victim.

139 Wn.2d 107, 119 n.5, 985 P.2d 365 (1999) (citation omitted).

After its discussion of Bobenhouse, the majority claims that Chenoweth built on

the analysis in Bobenhouse and the cases following Dunaway. Majority at 10. But that is

incorrect. Rather than follow clear precedent applying Dunaway, the majority relies on

Chenoweth, which misstates the law.

In Chenoweth, the defendant, Chad Chenoweth, was convicted of six counts of

third degree child rape of his daughter and six counts of first degree incest. 185 Wn.2d at

220. The child rape and incest counts were based on six occurrences that each involved a

single act. Id. Chenoweth, at sentencing, moved the court to determine that the first

18 No. 100570-9 Madsen, J., dissenting

degree incest counts encompassed the same criminal conduct as the third degree child

rape count. Id. Relying on Bobenhouse, the trial court concluded that the incest counts

did encompass the same criminal conduct as the child rape counts, and therefore, counted

each conviction separately for sentencing purposes. Id.

Pursuant to Bobenhouse, the Court of Appeals affirmed Chenoweth’s sentence.

Id. This court in Chenoweth ultimately held that “the same act constituting rape of a child

and incest is not the same criminal conduct for purposes of sentencing.” Id. at 224.

Chenoweth reasoned that “rape of a child and incest are separate crimes because they

involve distinct criminal intents.” Id. at 221. The court then looked to the corresponding

statutes and determined that because incest and rape of a child do not have the same

statutory intent, Chenoweth’s crimes did not encompass the same criminal conduct. Id. at

223.

Here, the majority’s analysis and application of Chenoweth is incorrect.

Chenoweth failed to follow decades of precedent established by Dunaway and, instead,

opined that courts should focus on the statutory criminal intent to determine whether

crimes encompass the same criminal conduct for purposes of sentencing. Under

Dunaway, however, courts are required to look at whether “the offender’s ‘criminal

intent, as objectively viewed, changed from one crime to the next.’” State v. Haddock,

141 Wn.2d 103, 113, 3 P.3d 733 (2000) (emphasis added) (quoting Dunaway, 109 Wn.2d

at 215). Correctly applying Dunaway, Chenoweth’s criminal intent, when viewed

objectively, remained the same between the first degree incest and third degree child rape

19 No. 100570-9 Madsen, J., dissenting

counts. Chenoweth’s objective criminal purpose was to have sex with his minor

daughter. See Chenoweth, 185 Wn.2d at 230 (Madsen, C.J., dissenting).

It is clear, as the majority acknowledges, that Dunaway has not been expressly

overruled, has been consistently followed for over 40 years, and was reaffirmed after the

1987 amendment by this court in Lessley; and the legislature has not revised the

definition of same criminal conduct. See, e.g., 1000 Friends of Wash. v. McFarland, 159

Wn.2d 165, 181, 149 P.3d 616 (2006) (plurality opinion) (“If the legislature does not

register its disapproval of a court opinion, at some point that silence itself is evidence of

legislative approval.” (citing State v. Coe, 109 Wn.2d 832, 846, 750 P.2d 208 (1988))).

Instead, Chenoweth has distorted and redefined the Dunaway test, overruling it sub

silentio. “Where we have expressed a clear rule of law” as we did in Dunaway “we will

not—and should not—overrule it sub silentio.” Lunsford v. Saberhagen Holdings, Inc.,

166 Wn.2d 264, 280, 208 P.3d 1092 (2009).

Dunaway and postamendment cases did not examine the statutory intent between

crimes in determining the criminal intent element under a same criminal conduct

analysis. Under Dunaway, the standard for deciding if crimes encompass the same

criminal conduct has always focused on the extent to which the criminal intent, as

objectively viewed, changed from one crime to the next and not on the statutory

definitions of intent for each crime. 109 Wn.2d at 215.

The Court of Appeals has consistently applied Dunaway and concluded that same

criminal intent will yield the same criminal conduct if the intent, as objectively viewed,

20 No. 100570-9 Madsen, J., dissenting

remains the same between the crimes. E.g., State v. Longuskie, 59 Wn. App. 838, 847,

801 P.2d 1004 (1990) (determining that kidnapping encompassed the same criminal

conduct as child molestation committed during the kidnapping because “child

molestation was the objective intent[, t]he kidnapping furthered that criminal objective

and the crimes were committed at the same time and place”); State v. Anderson, 72 Wn.

App. 453, 463-64, 864 P.2d 1001 (1994) (determining that escape and assault are the

same criminal conduct where the assault was committed to effectuate the escape); State v.

Calvert, 79 Wn. App. 569, 577-78, 903 P.2d 1003 (1995) (noting that two check forgeries

occurring at the same bank on the same day constituted the same criminal conduct); State

v. Taylor, 90 Wn. App. 312, 321-22, 950 P.2d 526 (1998) (kidnapping and assault that

were committed simultaneously shared the same objective intent); State v. Davis, 90 Wn.

App. 776, 781-82, 954 P.2d 325 (1998) (deciding that an assault and a burglary

encompassed the same criminal conduct when the defendant pointed a gun at the victim

who threatened to call the police); State v. Saunders, 120 Wn. App. 800, 825, 86 P.3d

232 (2004) (concluding that “the kidnapping was committed in furtherance of the rape

and, thus, the kidnapping and rape were the same criminal conduct”); State v. Bickle, 153

Wn. App. 222, 230-34, 222 P.3d 113 (2009) (providing that manufacturing cannabis

encompassed the same criminal conduct as possession of cannabis); see also State v.

Vike, 125 Wn.2d 407, 412-13, 885 P.2d 824 (1994) (concluding that simple possession of

two different drugs encompassed the same criminal conduct).

21 No. 100570-9 Madsen, J., dissenting

Similarly, same criminal intent will not constitute same criminal conduct if the

intent, as objectively viewed, changed from one crime to the next. E.g., State v. Worl, 58

Wn. App. 443, 449-51, 794 P.2d 31 (1990) (applying the Dunaway analysis and

determining that the crime of malicious harassment and attempted murder of the same

victim did not encompass the same criminal conduct because the harassment was

completed when the defendant exited the car and thus did not further the attempted

murder) rev’d on other grounds by State v. Barnes, 117 Wn.2d 701, 818 P.2d 1088

(1991); Lewis, 115 Wn.2d at 302 (“[Defendant’s] acts were not part of a single criminal

conduct because the commission of one drug deal did not further the commission of the

other drug deals, and they were not part of a recognizable scheme or plan.”); State v.

Becker, 59 Wn. App. 848, 855-56, 801 P.2d 1015 (1990) (applying the Dunaway

standard and finding that the crime of illegal possession of a firearm and manslaughter

committed with that firearm did not encompass the same criminal conduct because the

time and place of the two crimes were not the same); State v. Stearns, 61 Wn. App. 224,

232-34, 810 P.2d 41 (1991) (finding that under the Dunaway test, attempted rape and

robbery of the same victim did not encompass the same criminal conduct because the

robbery did not further the rape); State v. Walker, 143 Wn. App. 880, 890-92, 181 P.3d

31 (2008) (emphasizing that first degree theft could further the commission of first

degree trafficking in stolen property but ultimately making its decision recognizing that

the criminal intent between the two crimes, when viewed objectively under Dunaway, are

different).

22 No. 100570-9 Madsen, J., dissenting

Contrary to Chenoweth and the majority’s claims, Washington’s case law

demonstrates that examining the intent element of a criminal statute is not the crux of the

criminal intent inquiry under RCW 9.94A.589. Indeed, Chenoweth is a clear departure

from the Dunaway test.

First, unlike Dunaway, Chenoweth fails to reflect the legislature’s intent. In 1987,

the legislature specifically amended the statute to provide the following:

“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.

See LAWS OF 1987, ch. 456, § 5, at 1980.

As noted above, Dunaway established an objective intent analysis, whereby courts

examine the extent to which the criminal intent, as objectively viewed, changed from one

crime to the next. 109 Wn.2d at 215. Had Chenoweth applied that test, the court would

have recognized that rape of a child and incest are two different crimes with different

statutory elements. However, when viewed objectively, the defendant’s criminal intent in

Chenoweth did not change in the course of a single act. In contrast to the objective intent

test, under Chenoweth’s statutory intent approach, the crimes will not be considered same

criminal conduct because the statutory criminal intent is not the same.

23 No. 100570-9 Madsen, J., dissenting

6. Tili Properly Applied the Dunaway Standard and Did Not Discuss Statutory Criminal Intent as the Majority Claims

Continuing to reimagine the case law, the majority cites to Tili and claims that a

connection in the statutory definition between crimes is imperative in determining

whether crimes encompass the same criminal conduct. Majority at 12. The majority,

however, fails to explain how the court in Tili reached its conclusion.

In Tili, the offenses at issue concerned three first degree rape charges that involved

the same victim, happened at the same place, and occurred almost simultaneously in time

within two minutes of each other. 139 Wn.2d at 110-11. The issue was whether the three

acts of rape involved the same objective criminal intent. Id. at 119, 123. Tili held that

the trial court abused its discretion when it failed to treat the defendant’s three first

degree rape convictions as one crime for sentencing purposes and remanded for

resentencing. Id. at 124-25, 128.

The Tili court recognized that “[f]or multiple crimes to be treated as ‘same

criminal conduct’ at sentencing, the crimes must have (1) been committed at the same

time and place; (2) involved the same victim; and (3) involved the same objective

criminal intent.” Id. at 123 (citing State v. Palmer, 95 Wn. App. 187, 190, 975 P.2d 1038

(1999); State v. Walden, 69 Wn. App. 183, 187-88, 847 P.2d 956 (1993); former RCW

9.94A.400(1)(a) (1996)). “The absence of any one of these [three] prongs prevents a

finding of same criminal conduct.” State v. Porter, 133 Wn.2d 177, 181, 942 P.2d 974

(1997); see also Vike, 125 Wn.2d at 410.

24 No. 100570-9 Madsen, J., dissenting

Further, the Tili court noted that “[t]he relevant inquiry for the intent prong is to

what extent did the criminal intent, when viewed objectively, change from one crime to

the next.” 139 Wn.2d at 123 (emphasis added); see also Palmer, 95 Wn. App. at 191 &

n.5 (citing State v. Williams, 135 Wn.2d 365, 368, 957 P.2d 216 (1998)). The Tili court

then analyzed State v. Grantham, 84 Wn. App. 854, 932 P.2d 657 (1997), and Walden to

determine whether Tili’s three rapes encompassed the same objective criminal intent.

In Grantham, the evidence demonstrated that the defendant’s “criminal episode

had ended with the first rape” (forced anal intercourse), and after that first rape, the

defendant had the “‘time and opportunity to pause, reflect, and either cease his criminal

activity or proceed to commit a further criminal act.’” Tili, 139 Wn.2d at 123 (quoting

Grantham, 84 Wn. App. at 859). Forming a new intent to commit the second rape, the

Grantham defendant chose the latter when he threatened his victim, physically assaulted

the victim, and forced the victim to perform oral sex. Id. at 123-24. Tili reasoned that

“Grantham was able to form a new criminal intent before his second criminal act because

his ‘crimes were sequential, not simultaneous or continuous.’” Id. at 124 (quoting

Grantham, 84 Wn. App. at 859) (emphasis added). Contrasting Grantham’s facts to the

three rapes at issue in Tili, which were “continuous, uninterrupted, and committed within

a much closer time frame—approximately two minutes,” the court observed that “[t]his

extremely short time frame, coupled with Tili’s unchanging pattern of conduct,

objectively viewed, renders it unlikely that Tili formed an independent criminal intent

between each separate penetration.” Id. (emphasis added).

25 No. 100570-9 Madsen, J., dissenting

The court in Tili then discussed Walden. In that case, a jury convicted the

defendant of rape involving oral sex and attempted rape when the defendant, in quick

succession, forced a minor victim to perform oral sex on the defendant and then

attempted to anally penetrate the victim. Id. (citing Walden, 69 Wn. App. at 184-85).

The court recognized that “[i]n determining whether the two acts involved the ‘same

criminal conduct’ . . . , the Walden court held that, ‘[w]hen viewed objectively, the

criminal intent of the conduct comprising the two charges is the same: sexual

intercourse. Accordingly, the two crimes . . . furthered a single criminal purpose.’” Id.

(emphasis added) (third alteration in original) (quoting Walden, 69 Wn. App. at 188).

Analogizing Walden to Tili, the court held that “[Tili’s] unchanging pattern of

conduct, coupled with an extremely close time frame, strongly supports the conclusion

that his criminal intent, objectively viewed, did not change from one penetration to the

next.” Id. (emphasis added). Accordingly, Tili’s analysis, in my view, followed the

criteria set forth in Dunaway and did not discuss the statutory criminal intent as the

majority suggests.

The majority similarly suggests that the analysis in State v. Garza-Villarreal, 123

Wn.2d 42, 49, 864 P.2d 1378 (1993), is similar to the analysis in Tili because Garza-

Villarreal looked at the statutory intent of the crimes charged in determining whether

crimes encompass the same criminal conduct. Majority at 12-13. Again, I must depart

from the majority’s reasoning that Garza-Villarreal supports this statutory intent test.

26 No. 100570-9 Madsen, J., dissenting

Garza-Villarreal involved two separate cases with two separate defendants. In the

first case against Francisco Garza-Villarreal, the defendant pleaded guilty to two counts

of attempted unlawful possession of a controlled substance with intent to deliver (i.e.,

heroin and cocaine). 123 Wn.2d at 44. At sentencing, Garza-Villarreal argued that his

offender score should not include the concurrent offense of attempted unlawful

possession of a controlled substance with intent to deliver. Id. The trial court reasoned

that Garza-Villarreal’s convictions, based on different controlled substances involved in

the same transaction, did not encompass the same criminal conduct and sentenced him to

concurrent terms of 65 months of confinement. Id. at 45. In an unpublished decision, the

Court of Appeals vacated Garza-Villarreal’s sentence and reasoned,

“When two counts of possession with intent to deliver are simultaneously committed, they constitute different criminal conduct if the facts usable at sentencing, when objectively viewed, give rise to a reasonable inference that the defendant intended to deliver one or more controlled substances in two different transactions. Otherwise, the two acts constitute the same criminal conduct. There is no evidence in this case, except the existence of two different drugs, that would indicate more than one transaction was intended.”

Id. (quoting State v. Garza-Villarreal, noted at 63 Wn. App. 1046, slip op. at 2 (1992)).

In the second case, a jury convicted Joseph Casarez of two counts of unlawful

delivery of a controlled substance and one count of unlawful possession of a controlled

substance. Id. At sentencing, Casarez contended that his offender score, like Garza-

Villarreal, should not include the two convictions for unlawful delivery of a controlled

substance because they encompass the same criminal conduct. Id. at 45-46. The trial

court reasoned that Casarez’s two unlawful delivery offenses are separate crimes for

27 No. 100570-9 Madsen, J., dissenting

purposes of sentencing and sentenced Casarez to concurrent terms of 120 months of

confinement on the two delivery counts and 22 months of confinement on the possession

count. Id. at 46. The Court of Appeals reversed and held that the trial court erred when it

failed to consider Casarez’s two deliveries as the same criminal conduct. Id.; see also

State v. Casarez, 64 Wn. App. 910, 915, 826 P.2d 1102 (1992), aff’d, Garza-Villarreal,

123 Wn.2d 42.

Reasoning that “[i]n both cases, the crimes, objectively viewed, furthered one

overall criminal purpose,” this court affirmed both cases and found that Garza-

Villarreal’s two convictions for possession with intent to deliver and Casarez’s two

convictions for delivery of a controlled substance encompassed the same criminal

conduct. Garza-Villarreal, 123 Wn.2d at 48-49. Important to its conclusion, the Garza-

Villarreal court recognized that “[t]his court has applied Dunaway’s objective criminal

intent test in two cases involving controlled substances, State v. Lewis, 115 Wn.2d 294,

797 P.2d 1141 (1990), and State v. Burns, 114 Wn.2d 314, 788 P.2d 531 (1990).” Id. at

47 (emphasis added).

As discussed above, “[i]mplicit in the analysis of Lewis is that these crimes,

committed at separate times, were separately realized and thus did not further each

other.” Id. at 48; see also Lessley, 118 Wn.2d at 778.

In Burns, the defendant was charged with delivery of cocaine when he sold

cocaine to an undercover police officer and with possession with intent to deliver when

additional cocaine was found in the defendant’s van. 114 Wn.2d at 315-16. At

28 No. 100570-9 Madsen, J., dissenting

sentencing, the defendant contended that the two crimes encompassed the same criminal

conduct because his criminal objective was the same: to sell cocaine. Id. at 317. He

further argued that the two crimes are the same criminal conduct because the possession

of cocaine furthered the delivery (i.e., possession of cocaine is necessary to sell it). Id.

The trial court disagreed and sentenced Burns to a range of 21 to 27 months of

confinement. Id. at 316. The Court of Appeals affirmed the trial court and reasoned,

“In the case at bar, viewing the facts objectively, the criminal intent for each count was not the same, as claimed by Burns. The ‘same course of conduct’ exception was meant to apply to situations where there is only one criminal purpose or motive. Here, as in State v. Boze, 47 Wn. App. 477, 735 P.2d 696 (1987), the criminal objective of each crime was realized independently of the other. When Burns delivered he committed one crime, but he still had in his possession a significant amount of cocaine which he intended to sell to others. The delivery did not further his intent to sell the remaining cocaine. Had Burns possessed only the cocaine delivered there is no question but that the objective would be the same, as one must be in possession in order to deliver. Where, as in this case, the evidence shows possession of a quantity greater than that delivered, that same evidence indicates an independent objective to make other deliveries. Under these circumstances, despite their contemporaneity, the crimes did not encompass the same criminal conduct.”

Id. at 319 (quoting State v. Burns, 53 Wn. App. 849, 853, 770 P.2d 1054 (1989)

This court affirmed the Court of Appeals and determined that the crime of delivery

and the crime of possession with intent to deliver are separate crimes because both

involve different criminal intents. The crime of delivery involves an intent to deliver at

the present and the crime of possession with intent to deliver involves an intent to deliver

in the future. See generally Burns, 114 Wn.2d at 318-20.

29 No. 100570-9 Madsen, J., dissenting

Applying both Lewis and Burns, the court in Garza-Villarreal concluded that the

two crimes of attempted unlawful possession of a controlled substance with intent to

deliver arose from the same criminal conduct. 123 Wn.2d at 48. The court explained,

The fact that the two charges involved different drugs does not by itself evidence any difference in intent. The possession of each drug furthered the overall criminal objective of delivering controlled substances in the future. Thus, Garza-Villarreal’s convictions were for crimes committed in furtherance of the same objective criminal intent and, under the Dunaway test, are to be considered a result of the same criminal conduct.

Id. at 49.

Similarly, the court concluded that Casarez’s two convictions of unlawful delivery

of a controlled substance derived from the same criminal conduct. Id. The court

reasoned that

Casarez’s convictions for delivery of cocaine and delivery of heroin evidenced a single criminal objective of completing a drug deal. Absent other evidence, the fact that two different drugs were involved in no way indicated different objectives. Delivery of each drug furthered Casarez’s single criminal objective of selling drugs in the present. Because the same objective intent underlay both crimes, application of Dunaway leads us to conclude that Casarez’s crimes should be considered the same criminal conduct for purposes of calculating his offender score.

Id.

Contrary to the majority’s suggestion, the Garza-Villarreal court focused on

whether the defendants’ crimes furthered the other and not on the statutory language of

the crimes.

30 No. 100570-9 Madsen, J., dissenting

Conclusion

In sum, I would hold that the trial court erred when it applied Chenoweth in

deciding that Westwood’s convictions did not constitute the same criminal conduct for

sentencing purposes. The standard articulated in Dunaway is most consistent with the

seminal cases interpreting the same criminal intent prong under the same criminal

conduct analysis. Dunaway’s application has long been recognized when deciding same

criminal conduct. I would affirm the Court of Appeals. With these considerations in

mind, I respectfully dissent.

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