Opinion
No. 26852-7-III.
February 5, 2009.
Appeal from a judgment of the Superior Court for Spokane County, No. 06-1-02559-9, Michael P. Price, J., entered January 31, 2008.
Affirmed in part, reversed in part, and remanded by unpublished opinion per Kulik, A.C.J., concurred in by Sweeney and Brown, JJ.
Steven Allgoewer was convicted of indecent liberties by forcible compulsion and second degree assault with sexual motivation. Mr. Allgoewer appeals his convictions, alleging that: (1) his two convictions should have been treated as the "same criminal conduct" for sentencing purposes, and (2) his conviction for second degree assault with sexual motivation violates the doctrine of double jeopardy. We agree that the two convictions were based on the same criminal conduct and, therefore, remand for resentencing. We also conclude that the conviction for second degree assault with sexual motivation does not violate double jeopardy because the offenses are not identical in law and fact. Accordingly, we affirm the conviction for second degree assault with sexual motivation.
FACTS
Julia Pelc was walking on Riverside Avenue in the afternoon of July 13, 2006. As Ms. Pelc was walking, Mr. Allgoewer grabbed her around the ribcage, lifted her in the air, and put her on the ground. Ms. Pelc landed on her stomach and began to kick and scream. Mr. Allgoewer attempted to lift her skirt. He touched her on the outside of her underwear and his touch moved back and forth. Because Mr. Allgoewer was wearing a head covering, Ms. Pelc could not identify him. During the struggle, he choked her so that she could not breathe or scream. Then Mr. Allgoewer jumped up and ran away.
The police discovered Mr. Allgoewer after conducting an investigation that led to his girlfriend's vehicle. Mr. Allgoewer told the police that he had mistaken Ms. Pelc for someone else who owed him money and that he tried to grab onto her and lift her skirt. He denied that he had touched, or tried to touch, her vagina, and he denied intending to rape her. However, he admitted that he attacked Ms. Pelc for a sexual purpose.
Mr. Allgoewer was convicted of indecent liberties by forcible compulsion (RCW 9A.44.100(1)(a)) and second degree assault with sexual motivation (RCW 9A.36.021; RCW 9.94A.835). At sentencing, the court determined that the offenses did not constitute the same criminal conduct. Mr. Allgoewer appeals.
ANALYSIS
We review a trial court's determination of whether multiple crimes constitute the same criminal conduct for an abuse of discretion or misapplication of the law. State v. Elliott, 114 Wn.2d 6, 17, 785 P.2d 440 (1990). Here, the trial court analyzed the same criminal conduct so we decide, as a matter of law, whether the crimes constitute the same criminal conduct. Mr. Allgoewer argues the court misapplied the law by concluding that the two convictions were not the same criminal conduct.
Under RCW 9.94A.589(1)(a), whenever a person is to be sentenced for two or more current offenses, the sentence range for each offense shall be determined by using all other current offenses as if they were prior convictions in calculating the defendant's offender score. The statute further provides that if some or all of the current offenses encompass the "same criminal conduct," then those current offenses "shall be counted as one crime." RCW 9.94A.589(1)(a).
The statute defines "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). Importantly, if any one element is missing, multiple offenses cannot be considered the same criminal conduct and they must be counted separately in calculating the defendant's offender score. State v. Maxfield, 125 Wn.2d 378, 402, 886 P.2d 123 (1994). Appellate courts narrowly construe the statutory language to disallow most claims of same criminal conduct. State v. Price, 103 Wn. App. 845, 855, 14 P.3d 841 (2000).
Washington courts apply the test set out in State v. Dunaway, 109 Wn.2d 207, 215, 743 P.2d 1237, 749 P.2d 160 (1987) to determine whether the defendant had the same criminal intent with respect to each of the crimes. State v. Garza-Villarreal, 123 Wn.2d 42, 46, 864 P.2d 1378 (1993). The court in Dunaway stated that "in deciding if crimes encompassed the same criminal conduct, trial courts should focus on the extent to which the criminal intent, as objectively viewed, changed from one crime to the next." Dunaway, 109 Wn.2d at 215. The court noted that this often includes an analysis of whether one crime furthered the other and whether the time and place of the two crimes remained the same. Id.
Applying this test, in State v. Adame, 56 Wn. App. 803, 811, 785 P.2d 1144 (1990), we noted that "[i]ntent, in this context, is not the particular mens rea element of the particular crime, but rather is the offender's objective criminal purpose in committing the crime." As a result, even "counts with identical mental elements, if committed for different purposes, would not be considered the `same criminal conduct.'" State v. Haddock, 141 Wn.2d 103, 113, 3 P.3d 733 (2000).
Here, the findings of fact demonstrate that Mr. Allgoewer's objective intent was to gratify his sexual desires. Mr. Allgoewer stated that "he did have sexual reasons for committing the assault." Clerk's Papers at 125. And, as the State acknowledged, that motivation did not change during the course of the crimes. In light of the facts of this case, the crimes of second degree assault with sexual motivation and indecent liberties by forcible compulsion constitute the same criminal conduct. We, therefore, remand for resentencing.
Next, Mr. Allgoewer maintains that his two convictions violate double jeopardy. We disagree. The Court of Appeals reviews double jeopardy questions de novo. State v. Walker, 143 Wn. App. 880, 885, 181 P.3d 31 (2008). The Fifth Amendment to the United States Constitution provides that no person shall "`be subject for the same offense to be twice put in jeopardy of life or limb.'" Benton v. Maryland, 395 U.S. 784, 793, 89 S. Ct. 2056, 23 L. Ed. 2d 707 (1969). The language of the Washington Constitution declares: "No person shall be . . . twice put in jeopardy for the same offense." Const. art. I, § 9. The Supreme Court has concluded that the state constitutional provision should receive the same interpretation that the federal courts give to the double jeopardy provision of the federal constitution in the area of successive prosecutions. State v. Gocken, 127 Wn.2d 95, 102, 896 P.2d 1267 (1995).
"At issue in any double jeopardy analysis is whether the legislature intended to impose multiple punishments for the same offense." Walker, 143 Wn. App. at 885. "Where, as here, the relevant statutes do not expressly disclose legislative intent, Washington courts apply a rule of statutory construction that has been variously termed the `same elements' test, the `same evidence' test, and the Blockburger test." In re Pers. Restraint of Orange, 152 Wn.2d 795, 816, 100 P.3d 291 (2004). "Washington courts first applied the `same elements' test in State v. Reiff, 14 Wash. 664, 45 P. 318 (1896)." Id. "The Reiff court's `same elements' test is indistinguishable from the Blockburger test, which the United States Supreme Court and this court have endorsed." Id. at 816.
Blockburger v. United States, 284 U.S. 299, 52 S. Ct. 180, 76 L. Ed. 306 (1932).
Under the Blockburger test, a court may only penalize a defendant for one act or transaction that violates two distinct statutory provisions if each "provision requires proof of a fact which the other does not." Blockburger v. United States, 284 U.S. 299, 304, 52 S. Ct. 180, 76 L. Ed. 306 (1932). Thus, double jeopardy attaches only if the offenses are identical in both law and fact, which is demonstrated when "`the evidence required to support a conviction upon one of them would have been sufficient to warrant a conviction upon the other.'" Walker, 143 Wn. App. at 886 (quoting Reiff, 14 Wash. at 667). "In other words, if the evidence to prove one crime would also completely prove a second crime, the two crimes are the same in law and fact." Walker, 143 Wn. App. at 886.
The two convictions here are not the same in law and, thus, do not subject Mr. Allgoewer to double jeopardy. To prove indecent liberties, the State had to prove that Mr. Allgoewer "knowingly cause[d] another person who is not his or her spouse to have sexual contact with him . . . [b]y forcible compulsion." RCW 9A.44.100(1)(a). "Forcible compulsion" is defined as:
[P]hysical force which overcomes resistance, or a threat, express or implied, that places a person in fear of death or physical injury to herself or himself or another person, or in fear that she or he or another person will be kidnapped.
RCW 9A.44.010(6). To prove second degree assault with sexual motivation, the State had to first prove that Mr. Allgoewer "[i]ntentionally assault[ed] another and thereby recklessly inflict[ed] substantial bodily harm" to the victim. RCW 9A.36.021(1)(a). Second, the State had to prove that Mr. Allgoewer committed the crime for his sexual gratification. Former RCW 9.94A.030(43) (2006); RCW 9.94A.835.
Former RCW 9.94A.030(43) is presently numbered RCW 9.94A.030(47).
The two charges in this case are different in several ways. Most importantly, the intent elements differ: for indecent liberties, the State had to prove that Mr. Allgoewer knowingly caused the victim to have sexual contact. Whereas, for second degree assault with sexual motivation, the State had to prove that Mr. Allgoewer intentionally assaulted the victim. Further, to prove the crime of indecent liberties, there is no requirement that the State prove Mr. Allgoewer "recklessly inflict[ed] substantial bodily harm," as is the requirement for second degree assault. Additionally, the crime of second degree assault with sexual motivation has no requirement of sexual contact, as does the crime of indecent liberties. Accordingly, these two offenses do not violate double jeopardy under Blockburger.
Mr. Allgoewer's two convictions do not rest upon the "same evidence" and, therefore, do not violate double jeopardy. The State did not use the evidence of one crime to completely prove a second crime.
Mr. Allgoewer cites State v. Ticeson, 26 Wn. App. 876, 614 P.2d 245 (1980) for the proposition that double jeopardy applies to convictions for indecent liberties and second degree assault. In Ticeson, the court relied upon the relationship between the assault and the sexual crime:
The acts of force necessary to commit the crime of indecent liberties upon Sandra M. were the same as the acts of force inflicted upon her as alleged in the count charging assault in the second degree. The several touchings constituting the assault were part of a continuing, uninterrupted attack to forcibly sexually molest the victim and constituted proof of an element included within the crime of indecent liberties. Under the evidence in this case, as in State v. Bresolin,[13 Wn. App. 386, 534 P.2d 1394 (1975)], the assault was not separate and distinct from the force required for indecent liberties, and conviction of both "assault" and "indecent liberties" constituted double jeopardy and a violation of defendant's constitutional rights. Therefore the conviction of assault in the second degree, based upon the force used to commit the crime of indecent liberties, must be set aside.
Ticeson, 26 Wn. App. at 880-81 (emphasis added). The evidence in this case shows that Ticeson is distinguishable. Here, the evidence the State used to prove the crime of indecent liberties would not also completely prove the crime of assault.
To prove indecent liberties, the State argued at closing that: "The defendant attacked Ms. Pelc from behind, reached up her skirt, and touched her vagina numerous times. [Mr. Allgoewer] admit[ted] he did it for a sexual purpose." Report of Proceedings at 253.
However, the evidence used to prove the crime of indecent liberties does not completely prove the elements of second degree assault with sexual motivation. Second degree assault requires that Mr. Allgoewer "[i]ntentionally assault[ed] another and thereby recklessly inflicte[d] substantial bodily harm" to the victim. RCW 9A.36.021(1)(a). To prove second degree assault with sexual motivation, the State showed that Ms. Pelc was grabbed around the neck and strangled until she could not breathe, and Mr. Allgoewer admitted that he had a sexual motivation in committing the crimes.
While these facts support a conviction of second degree assault with sexual motivation, they do not completely prove the crime of indecent liberties by forcible compulsion. See RCW 9A.44.100(1)(a). The facts used to prove second degree assault, do not prove that Mr. Allgoewer caused the victim to "have sexual contact with him," which is necessary to prove the crime of indecent liberties. RCW 9A.44.100(1)(a) (emphasis added).
Thus, the crimes have different elements and the evidence used to prove one crime would not also completely prove a second crime. Accordingly, the two convictions are not the same in law or fact. Therefore, these two convictions did not subject Mr. Allgoewer to multiple punishments for the same offense and did not violate his right against double jeopardy.
We affirm the conviction for second degree assault with sexual motivation and remand for resentencing.
A majority of the panel has determined this opinion will not be printed in the Washington Appellate Reports, but it will be filed for public record pursuant to RCW 2.06.040.
Brown, J. and Sweeney, J., CONCUR.