Opinion
No. 24935-2-III.
April 24, 2007.
Appeal from a judgment of the Superior Court for Spokane County, No. 04-1-03118-5, Salvatore F. Cozza, J., entered February 10, 2006.
Reversed and remanded by unpublished opinion per Schultheis, A.C.J., concurred in by Kulik, J., and Kato, J. Pro Tem.
RCW 9.94A.589(1)(a) provides for concurrent sentences for offenses that encompass the same criminal conduct. Same criminal conduct means two or more crimes that require the same objective criminal intent, committed at the same time and place, and involve the same victim. State v. Palmer, 95 Wn. App. 187, 190, 975 P.2d 1038 (1999). Donta L. Blackmon was convicted of second degree child rape and second degree child molestation. The sole issue on appeal is whether these crimes constitute the same criminal conduct. We conclude that the trial court abused its discretion by finding that the offenses were not the same criminal conduct. We therefore vacate the sentence and remand for resentencing.
FACTS
On August 19, 2004, L.H., then 13 years old, was spending the night with her sister, Taryn Pritchard, in her sister's Spokane apartment. During the early morning hours of August 20, L.H., Ms. Pritchard, and others returned to Ms. Pritchard's apartment after visiting another family member. Mr. Blackmon was waiting for them. Ms. Pritchard went off to visit someone in another apartment. Mr. Blackmon, L.H., and others went into Ms. Pritchard's living room.
L.H. testified that she fell asleep on the loveseat and awoke to Mr. Blackmon lifting her off the couch and carrying her into a bedroom. She stated that she immediately fell back to sleep when he placed her on the bed. She next awoke to find Mr. Blackmon standing over her with his pants around his ankles. She was facedown and wearing no underwear. Her vagina was sore and there was semen on the inside of her thigh. She pulled on her underwear and went into the living room. She wiped her leg with a blanket. She then went into the master bedroom and slept with her sister's roommate, Dawn Davis, after telling her what occurred.
The next morning L.H. took a shower and reported the incident to her sister and her mother. Her mother took her to the hospital to be examined.
Mr. Blackmon testified that he and L.H. engaged in mutual "fooling around" in both the living room and the bedroom. III Report of Proceedings (RP) at 251, 271. He stated that he masturbated and ejaculated on L.H.'s inner thigh, but no penetration occurred.
Mr. Blackmon was charged with one count of second degree rape for lack of consent due to helplessness (count I), one count of indecent liberties (count II), one count of second degree child rape (count III), and one count of second degree child molestation (count IV).
At trial, Brian Reynolds, M.D., testified that he examined L.H. at Deaconess Medical Center. He stated that although L.H. complained of soreness, there was no vaginal trauma noted — which is not necessarily unusual in child sexual assault cases.
Matthew Gamette, a scientist at the state crime lab, compared samples obtained from L.H. and her underwear and the blanket with samples from Mr. Blackmon. Spermatozoa were detected by microscope from the vaginal sample, L.H.'s underwear, and from the blanket. The DNA (deoxyribonucleic acid) in the semen on the underwear matched that of Mr. Blackmon. DNA from the vaginal swabs also matched that of Mr. Blackmon. Samples from the blanket matched Mr. Blackmon.
Deborah Harper, M.D., testified that semen deposited on the inner thigh cannot transport sperm to the female genitalia. That is so because sperm need a moist environment to keep them alive and allow them to swim up the labia majora to reach the vagina. She said it is conceivable, however, for sperm to be transferred by fingers or by a "glob on [a] towel." III RP at 243.
Mr. Blackmon was convicted of second degree child rape (count III) and second degree child molestation (count IV). At sentencing, the trial court ruled that Mr. Blackmon's convictions did not constitute the same criminal conduct.
DISCUSSION
Mr. Blackmon asserts that the trial court miscalculated his offender score because it incorrectly determined that his convictions for second degree child molestation and second degree child rape did not constitute the same criminal conduct.
If the trial court enters a finding that two or more of the current offenses constitute the same criminal conduct, those current offenses are counted as one crime and the sentences are served concurrently. RCW 9.94A.589(1)(a). A trial court's determination of what constitutes the same criminal conduct will not be disturbed absent an abuse of discretion or misapplication of the law. State v. Tili, 139 Wn.2d 107, 122, 985 P.2d 365 (1999).
A "same criminal conduct" finding can be made when the crimes (1) have the same criminal intent, (2) are committed at the same time and place, and (3) involve the same victim. RCW 9.94A.589(1)(a). RCW 9.94A.589(1)(a) is construed narrowly. State v. Porter, 133 Wn.2d 177, 181, 942 P.2d 974 (1997). If any one of the factors is missing, the multiple offenses do not encompass the same criminal conduct. State v. Lessley, 118 Wn.2d 773, 778, 827 P.2d 996 (1992). Each offense must then be counted separately in calculating the offender score. Id.
When examining intent, the proper focus is "the extent to which the criminal intent, as objectively viewed, changed from one crime to the next." State v. Dunaway, 109 Wn.2d 207, 215, 743 P.2d 1237, 749 P.2d 160 (1987). This often includes an examination of "whether one crime furthered the other and if the time and place of the two crimes remained the same." Id.
Here, the trial court held that the crimes did not constitute the same criminal conduct because the child rape involved sexual intercourse and the child molestation involved sexual contact and that the facts arose out of distinctively different circumstances. Specifically, the court stated:
The issue about whether this is the same course of conduct the court determines not to be the case, based on the fact that, factually, the offenses were found by the jury to have constituted an act of sexual intercourse in Count III and an act of sexual contact in Count IV. As the facts came out, those are not part and parcel of the same thing. Those occurred at distinctly different, although close in time, circumstances as to yield the conclusion that they are separate course of conduct. RP (Feb. 10, 2006) at 41.
Second degree child rape as charged in count III required proof of penetration of L.H.'s vagina or anus by any object or male sex organ by Mr. Blackmon and L.H. was between 12 and 14 years old and Mr. Blackmon was at least 36 months older than L.H. and not married to her. See RCW 9A.44.076.
Second degree child molestation as charged in count IV required proof that Mr. Blackmon touched L.H.'s sexual or other intimate parts for the purpose of sexual gratification and L.H. was between 12 and 14 years old and Mr. Blackmon was at least 36 months older than L.H. and not married to her. See RCW 9A.44.086.
Similarly, the State argues on appeal that the facts boil down to two incidents that were isolated enough in time that Mr. Blackmon could form separate intent. The record is not so clear.
Mr. Blackmon testified that he engaged in mutual "fooling around" with L.H. both in the living room and in the bedroom. RP at 251, 271. This included rubbing L.H.'s buttocks and legs and reaching up her skirt that approached her private areas. He told the jury that while in the bedroom, he masturbated and prematurely ejaculated on her inner thigh. Although he denied that penetration occurred, the jury did not believe him. Nonetheless, it is impossible to identify the point at which the jury determined penetration occurred in order to make out a separate incident of sexual intercourse from the sexual contact.
Had the jury believed Mr. Blackmon's testimony that no penetration occurred, it would not have convicted him of second degree child rape, which requires sexual intercourse.
Explaining that she was a deep sleeper, L.H. testified that she was asleep during the critical moments. But the jury did not believe her either. Still, there is nothing in her testimony to support two separate incidents.
The jury convicted Mr. Blackmon of second degree rape of a child with the same elements except the helplessness element is replaced with an age element. Had the jury believed that L.H. was asleep, it would have convicted Mr. Blackmon of second degree rape by lack of consent by reason of physical helplessness as alleged in count I.
The jury's disbelief that L.H. was asleep may have also been a decisive factor in preventing it from convicting Mr. Blackmon of indecent liberties for causing her to have sexual contact with Mr. Blackmon when she was incapable of consent by reason of being physically helpless as alleged in count II.
Mr. Blackmon argues that this case is like State v. Dolen, 83 Wn. App. 361, 921 P.2d 590 (1996). We agree.
In Dolen, as here, the defendant was convicted on one count of second degree child rape and one count of second degree child molestation. The victim testified at trial to six different incidents of sexual conduct by the defendant. One specific incident involved inappropriate rubbing and touching that led to penetration of the child's vagina. The trial court counted each of the defendant's two convictions separately in determining his offender score.
Division Two of this court held that if the convictions were based on the same incident, they encompassed the same objective criminal intent of sexual gratification and therefore the same criminal conduct. But because the verdict did not specify whether the crimes occurred in the same or separate incidents, the record did not support the finding that the crimes were not part of the same criminal conduct. Therefore, it vacated and remanded for resentencing because "[a]t sentencing, the State has the burden of proving the defendant's criminal history by a preponderance of the evidence. If the time an offense was committed affects the seriousness of the sentence, the State must prove the relevant time." Dolen, 83 Wn. App. at 365 (citations omitted).
Here, there is nothing to show the specific conduct that forms the basis of each charge or conviction. It is not specified in the information, jury instructions, or a special verdict form or by the prosecutor in the closing argument. Nor is there a Petrich instruction to assure us that the jury decided on the same conduct for each conviction. Thus, we do not know whether the jury decided that, as the State argues, the child molestation occurred in the living room and the child rape occurred in the bedroom. Based on the evidence, the jury could have found that both offenses occurred in the bedroom at virtually the same time.
State v. Petrich, 101 Wn.2d 566, 683 P.2d 173 (1984).
The State argues that the crimes are not the same criminal conduct because the jury was instructed as to the different legal standards for second degree child rape and second degree child molestation. The former has no mens rea requirement. State v. Chhom, 128 Wn.2d 739, 743-44, 911 P.2d 1014 (1996). The latter requires proof of intent to gratify sexual desires. State v. French, 157 Wn.2d 593, 610-11, 141 P.3d 54 (2006).
In Dolen, the court viewed child molestation and child rape as involving the same objective criminal intent: present sexual gratification. 83 Wn. App. at 365. The same is true here. The court also held that an incident of rubbing and touching led to the penetration. The same could be true here, but because the record in this case is even less clear than in Dolen, it cannot be determined.
CONCLUSION
The trial court abused its discretion by finding that the offenses were not the same criminal conduct. We therefore vacate the sentence and remand for resentencing.
A majority of the panel has determined that 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.
KULIK, J. and KATO, J. Pro Tem., concur.