Opinion
No. 30929-7-II.
Filed: June 8, 2004. UNPUBLISHED OPINION
Appeal from Superior Court of Kitsap County. Docket No: 03-1-01032-2. Judgment or order under review. Date filed: 09/19/2003. Hon. M Karlynn Haberly.
Counsel for Appellant(s), Thomas E. Jr Weaver, Attorney at Law, 569 Division St. Ste E, Port Orchard, WA 98366-4600.
Counsel for Respondent(s), Randall Avery Sutton, Kitsap Co Prosecutor's Office, Msc 35, 614 Division St, Port Orchard, WA 98366-4681.
Jason Christopher Clark appeals his convictions of first degree robbery and first degree kidnapping. He argues that the trial court erred in calculating his offender score by refusing to treat his present convictions as the `same criminal conduct.' Finding no error, we affirm.
Facts
On July 30, 2003, at approximately 2:00 p.m., Clark arrived at the residence of Christopher Phillips located at 1746 Kitsap Lake Road. Phillips invited Clark into the residence, which is located above the garage. After conversing and watching television with Phillips, Clark went downstairs to get his cigarettes out of his truck. Phillips realized that he had also left his cigarettes in his car, which was located inside the garage. Clark told detectives that while Phillips was walking downstairs to his vehicle, Clark went back upstairs and took a `hit' of crack. Clerk's Papers (CP) at 6. As Phillips approached the interior door leading to the garage, a man abruptly opened the door and entered the stairwell. Phillips recognized the man as Eddie Coleman.
Coleman punched Phillips in the nose, knocking him onto the stairs. Clark then entered the stairwell, and he and Coleman punched and kicked Phillips in excess of 30 times. Clark told detectives that Coleman instructed him to tie Phillips up. Clark bound Phillips' hands and feet with duct tape and metal wire. He then wrapped duct tape all around Phillips' body and head, taping him in a fetal position. Phillips told police that after he was bound and taped, he was carried upstairs and dropped on the floor.
Next, Phillips informed police that either Clark or Coleman went through his pants pockets and removed $12 in bills. He also heard someone searching through drawers inside his residence. After the bills were taken and his residence searched, Phillips stated that Coleman and Clark carried him downstairs and into the garage. They dropped him on the floor, and he heard Coleman ask Clark whether they should take Phillips with them and whether they should take his car. Clark responded that they should, adding, `if they cannot find him (Phillips) they will not know what happened for a while [sic].' CP at 6. Phillips stated that Clark and Coleman put him inside the trunk of his vehicle, closed the lid, and then Clark drove the vehicle away.
Phillips informed police that while Clark was driving, he was able to free himself from the duct tape and manually open the lid of the trunk. With the trunk open, he saw that Clark was driving at a high rate of speed and `running other vehicles off the road.' CP at 6. In addition, he observed that Clark was driving on Kitsap Way, in the area of the Taco Bell. Clark made a sharp left on 13th, and abruptly stopped at 13th and Callow. Phillips managed to jump out of the vehicle and run into a nearby business for help.
Around 3:27 p.m. the same day, Clark was arrested. During interrogation, he informed detectives that he had periodically stayed with Phillips over the last few months, and that they smoked crack together. Clark stated that the previous evening he gave Phillips approximately $300 for crack, and they each went out in search of the drug. Clark met with a woman named Rhonda Goans, who put him in contact with Coleman. Clark stated that while he and Coleman were meeting, he called Phillips. Phillips informed Clark that he had purchased some crack. Clark and Coleman went to Phillips' residence, where the previous events ensued. Clark admitted binding Phillips with duct tape and driving away with him in the trunk, but denied that he had punched or kicked him. He also told detectives that it was Coleman's idea to take Phillips with them in the car, and that Coleman had stated, `I am not done with him yet.' CP at 6.
Additionally, Clark told detectives that after Phillips jumped out of the trunk, he again met with Goans to purchase some crack. Goans put him in contact with Samuel Wofford (J.W.). At around 4:00 p.m., J.W. gave a written statement to police. He informed them that Clark was going to sell him a vehicle, and that Clark told him that the vehicle was stolen from a `guy named Chris [Phillips].' CP at 7. Clark gave written consent for police to search his vehicle; inside they recovered a roll of duct tape and Phillips' watch and Nextel cellular telephone and watch.
Clark was charged by information with first degree robbery under RCW 9A.56.190 and RCW 9A.56.200(1) and first degree kidnapping under RCW 9A.40.010(2) and RCW 9A.40.020(1). Clark pleaded guilty as charged. At sentencing, Clark argued that the court should treat his present convictions as the `same criminal conduct' for purposes of calculating his offender score under RCW 9.94A.589(1)(a). Report of Proceedings (Sept. 19, 2003) (RP) at 4-6. The trial court disagreed, and found that his crimes constituted separate, distinct offenses. The court found that Clark's offender score was two (2) based upon each of his convictions, and imposed concurrent sentences of 43 months for the robbery and 66 months for the kidnapping based upon a standard range of 62-82 months. Had the court accepted Clark's argument, the standard range would have been 51-68 months.
RCW 9.94A.589(1)(a) provides in relevant part: `[W]henever 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.'
Analysis
We review a trial court's determination of whether two crimes constitute the `same criminal conduct' for abuse of discretion or misapplication of the law. State v. Freeman, 118 Wn. App. 365, 377, 76 P.3d 732 (2003) (citing State v. Maxfield, 125 Wn.2d 378, 402, 886 P.2d 123 (1994)); State v. Larry, 108 Wn. App. 894, 915, 34 P.3d 241 (2001), review denied, 146 Wn.2d 1022 (2002). Review for abuse of discretion is appropriate when the facts in the record are sufficient to support a finding either way on the presence of any of the three statutory elements that, taken together, constitute same criminal conduct. Freeman, 118 Wn. App. at 377 (citing State v. Anderson, 92 Wn. App. 54, 62, 960 P.2d 975 (1998), review denied, 137 Wn.2d 1016 (1999). We construe the term `same criminal conduct' narrowly. State v. Hernandez, 95 Wn. App. 480, 485, 976 P.2d 165 (1999).
Two or more crimes may be considered the same criminal conduct if they (1) require the same criminal intent; (2) are committed at the same time and place; and (3) involve the same victim. RCW 9.94A.589(1)(a). The absence of any one of the prongs prevents a finding of `same criminal conduct.' State v. Price, 103 Wn. App. 845, 855, 14 P.3d 841 (2000) (citing State v. Vike, 125 Wn.2d 407, 410, 885 P.2d 824 (1994)), review denied, 143 Wn.2d 1014 (2001). The State does not dispute that Clark's two crimes involved the same victim. Thus, the only issues before us are whether the crimes involved the same criminal intent and occurred at the same time and place.
A. Same Criminal Intent
The Supreme Court has held that in determining whether multiple crimes involved the same criminal intent, the standard is the extent to which the defendant's criminal intent, viewed objectively, changed from one crime to the next. Vike, 125 Wn.2d at 411 (citing State v. Dunaway, 109 Wn.2d 207, 215, 743 P.2d 1237, 749 P.2d 160 (1987)). First, we must objectively view each underlying criminal statute and determine whether the required intents are the same or different for each count. Price, 103 Wn. App. at 857 (citing Hernandez, 95 Wn. App. at 484). If the intents are the same, we next objectively view the facts usable at sentencing to determine whether the defendant's intent was the same or different with respect to each count. Price, 103 Wn. App. at 857 (citing Hernandez, 95 Wn. App. at 484). When dealing with sequentially committed crimes, this inquiry can be resolved in part by determining whether one crime furthered the other. Price, 103 Wn. App. at 857 (citing Vike, 125 Wn.2d at 411-12).
Clark contends that his situation is `nearly identical' to that of the defendant in Dunaway, 109 Wn.2d 207. Br. of Appellant at 4. We disagree. In Dunaway, the defendant entered the victims' car and threatened to shoot them if they did not give him their cash. Dunaway, 109 Wn.2d at 211. At gunpoint, he then ordered them to drive to a bank in order to obtain more money for him. Dunaway, 109 Wn.2d at 211. Because the defendant was charged with and convicted of first degree robbery and first degree kidnapping with intent to commit robbery, the Supreme Court found that robbery was the objective intent behind both crimes and that the defendant's present convictions constituted the `same criminal conduct.' Dunaway, 109 Wn.2d at 217 (emphasis added).
We have held that first degree robbery and first degree kidnapping have different objective criminal intents. See Larry, 108 Wn. App. at 916. Here, Clark was charged with and convicted of first degree robbery with intent to take the personal property of another. See RCW 9A.56.190. He was also charged with first degree kidnapping with intent to hold the victim for ransom or reward, or as a shield or hostage; facilitate the commission of any felony or flight thereafter; inflict bodily injury on the victim, inflict extreme mental distress on the victim or a third person, and/or to interfere with the performance with any government function. See RCW 9A.40.020(1). Consequently, unlike the defendant in Dunaway, Clark's crimes have different objective criminal intents and cannot constitute the same criminal conduct. Moreover, the kidnapping did not further the robbery, as Clark was charged with robbery independent of the kidnapping.
B. Same Time and Place
Clark next contends that his offenses occurred at the same time and in the same place, as was the case in Dunaway, 109 Wn.2d at 217. However, unlike the situation in Dunaway, where the robbery and the kidnapping occurred simultaneously at each location the defendant ordered the victims to drive, Clark kidnapped Phillips after the robbery had already occurred. Furthermore, while the robbery occurred only at Phillips' home, the kidnapping occurred at several different locations. Thus, we also find that Clark's crimes are not the `same criminal conduct' because they took place at different times and in different physical locations. The trial court did not err.
We affirm.
A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.06.040, it is so ordered.
ARMSTRONG, P.J. and SEINFELD, J.P.T., concur.