Opinion
No. 64054-2-I.
January 24, 2011. UNPUBLISHED OPINION
Appeal from a judgment of the Superior Court for King County, No. 08-1-07683-7, Catherine D. Shaffer, J., entered July 27, 2009.
Affirmed by unpublished opinion per Cox, J., concurred in by Schindler and Lau, JJ.
Edwardo Hall appeals his convictions for four counts of third degree rape of a child. He argues that his offenses constitute the same criminal conduct and therefore, his multiple concurrent offenses should have been treated as a single offense for purposes of calculating his offender score. He further contends the court abused its discretion by relying on an impermissible basis to deny his request for an exceptional sentence downward. However, there was no basis to treat Hall's offenses as the same criminal conduct. The evidence established and the jury concluded that Hall engaged in sexual intercourse with the victim on four separate occasions. The trial court also appropriately evaluated Hall's claimed failed defense that he reasonably believed the victim was eighteen years old, but concluded the evidence did not support the defense and an exceptional sentence downward was unwarranted. Because there was no abuse of discretion, we affirm.
In July 2006, then twenty-one year old Edwardo Hall met fifteen year old B.G. on MySpace.com. A mutual friend who was in the same grade in school as B.G. introduced them. Shortly after they met online, B.G. invited Hall to her house when her parents were not home. B.G. testified that during this first meeting on July 7, 2006, while they were kissing in the garage, Hall twice put his hand in her pants and inserted his fingers in her vagina. B.G. removed Hall's hand and he stopped.
Hall acknowledged that after he and B.G. met in person, their boyfriend-girlfriend relationship became "official." B.G. and Hall continued dating for several months and during this time, their physical relationship did not include intercourse. Then, in December 2006, Hall came to B.G.'s house at night and they had penile-vaginal intercourse in the basement. After this, B.G. said that for the remainder of December and during January 2007, she and Hall saw each other more than twice per week and had sexual intercourse each time they saw each other. B.G. estimated that intercourse occurred between ten and twenty times. Hall estimated that it occurred between five and eleven times. At the end of January 2007, the sexual relationship ended when B.G. discovered that Hall had another girlfriend with whom he had a child.
In the summer of 2007, B.G. discovered she was pregnant. In October 2007, she gave birth to a child and put the infant up for adoption. Hall was definitively determined to be the biological father.
The State charged Hall with four counts of rape of a child in the third degree, alleging that Hall had sexual intercourse with fifteen year old B.G. and that Hall was at least forty-eight months older than B.G. The State also alleged that Hall's offense caused the pregnancy of a child victim, an aggravating factor under RCW 9.94A.535(3)(i). The jury convicted Hall of all counts and also found in a special verdict that the offense resulted in B.G.'s pregnancy.
For purposes of sentencing, Hall's offender score of nine and seriousness level of six resulted in a standard range of 77 to 102 months, but the statutory maximum was 60 months. The State requested that the court impose the presumptive sentence of 60 months and declined to seek consecutive sentences based upon the jury's finding of an aggravating factor.
The court denied Hall's request to treat his four convictions as the same criminal conduct for purposes of calculating his offender score. The court noted that both B.G. and Hall testified that intercourse occurred on multiple separate occasions and there was no factual basis to treat the offenses as the same criminal conduct. Hall also requested an exceptional sentence downward of twelve to fourteen months based, in part, on the defense he raised at trial, that B.G. represented herself to be older and he reasonably believed her. The court found that the evidence presented at trial did not support Hall's failed defense and exceptional sentence downward was unwarranted. The court imposed a sentence of 60 months.
Hall appeals.
SAME CRIMINAL CONDUCT
Hall argues that the trial court abused its discretion by refusing to treat his convictions as the same criminal conduct for purposes of calculating his offender score. He claims the State failed to prove that the acts of sexual intercourse relied upon by the jury to support each of the four counts occurred at different times. Hall's argument is unsupported by the record, however, and we reject it.
Under the Sentencing Reform Act of 1981 (SRA), multiple offenses are counted as one offense in determining the offender score only if they encompass the same criminal conduct. To constitute the same criminal conduct for purposes of determining an offender score, two or more criminal offenses must involve (1) the same objective intent, (2) the same time and place, and (3) the same victim. The legislature intended the phrase "same criminal conduct" to be construed narrowly, and if any one of the factors is missing, the multiple offenses do not encompass the same criminal conduct. Each offense must then be counted separately in calculating the offender score. 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.
Id.
State v. Flake, 76 Wn. App. 174, 180, 883 P.2d 341 (1994).
State v. Lessley, 118 Wn.2d 773, 778, 827 P.2d 996 (1992).
Id.
State v. Tili, 139 Wn.2d 107, 122, 985 P.2d 365 (1999).
Hall relies on State v. Dolen. In that case, the defendant was charged with one count of second degree rape of a child and one count of second degree child molestation for acts alleged to have occurred during the course of a year. The child testified to six different incidents in which Dolen engaged in some or all of the following conduct: placing her hand on his penis; inserting his penis in her mouth; rubbing her breasts and vagina; and inserting his finger into her vagina. Each incident involved continuous sexual conduct. In a typical incident described by the child, Dolen rubbed the child's breasts and vagina, then inserted his finger in her vagina, then placed her hands on his penis and rubbed back and forth. The jury found Dolen guilty of both child rape and molestation.
83 Wn. App. 361, 921 P.2d 590 (1996).
Id. at 363.
Id.
Id.
For sentencing purposes, the trial court found that Dolen's two convictions were not the same criminal conduct and counted each as another current conviction to calculate his offender score. Division Two of this court observed that the record did not indicate whether the jury convicted Dolen of committing the two offenses in a single incident or in separate incidents. If the convictions were based on the same incident, the court held that they encompassed the same criminal conduct. Therefore, it vacated and remanded for resentencing noting that "[i]f the time an offense was committed affects the seriousness of the sentence, the State must prove the relevant time."
Id. at 364.
Id. at 363.
Id. at 365.
Hall argues that this case is like Dolen because it is impossible to tell from the record whether the jury based its verdict upon acts that occurred on the same or separate occasions. But the only evidence presented in this case was of single sex acts on multiple occasions. For example, B.G. testified about the incident of digital penetration in July 2006 in her parents' garage. She also testified specifically about the first incident of penile penetration in the basement of her home in December 2006. B.G. further testified that she and Hall had intercourse each time they saw each other after that, in total, between ten and twenty times in December and January. Hall likewise admitted to between five and eleven separate instances of sexual intercourse with B.G. Hall acknowledged that during late 2006 and early 2007, his interactions with B.G. consisted of showing up at her house, having sex with her, and leaving. There was no evidence of continuous sexual conduct or sequential acts as there was in Dolen that could have resulted in multiple convictions based on a single incident.
And significantly, as to each of the four counts, the jury was instructed that in order to convict Hall, it had to find that he engaged in intercourse with B.G. on an occasion "separate and distinct" from that charged in the other three counts. Thus, the record in this case supports only one conclusion: that Hall was convicted for separate incidents of sexual intercourse. The trial court did not abuse its discretion in finding that Hall's multiple offenses did not constitute the same criminal conduct.
EXCEPTIONAL SENTENCE
Under the SRA, some failed defenses may constitute mitigating factors that justify an exceptional sentence below the standard range. The reasons relied on for deviating from the standard range must be "substantial and compelling" and "must `distinguish the defendant's crime from others in the same category.'"
State v. Jeannotte, 133 Wn.2d 847, 851, 947 P.2d 1192 (1997).
RCW 9.94A.535; State v. Fowler, 145 Wn.2d 400, 405, 38 P.3d 335 (2002).
Generally, a standard-range sentence cannot be appealed. However, where, as here, a defendant has requested an exceptional sentence below the standard range, the denial can be reviewed if the court "either refused to exercise its discretion at all or relied on an impermissible basis for refusing to impose an exceptional sentence." As this court has explained:
See RCW 9.94A.585; State v. Khanteechit, 101 Wn. App. 137, 138, 5 P.3d 727 (2000).
Khanteechit, 101 Wn. App. at 138.
A court refuses to exercise its discretion if it refuses categorically to impose an exceptional sentence below the standard range under any circumstances; i.e., it takes the position that it will never impose a sentence below the standard range. A court relies on an impermissible basis for declining to impose an exceptional sentence below the standard range if it takes the position, for example, that no drug dealer should get an exceptional sentence down or it refuses to consider the request because of the defendant's race, sex or religion. . . . Conversely, a trial court that has considered the facts and has concluded that there is no basis for an exceptional sentence has exercised its discretion, and the defendant may not appeal that ruling.
State v. Garcia-Martinez, 88 Wn. App. 322, 330, 944 P.2d 1104 (1997).
Hall contends that the court abused its discretion in this case by relying on an impermissible basis for refusing to impose an exceptional sentence downward. He argues that the trial court refused to consider his request for an exceptional sentence based on a failed defense for the improper reason that the jury rejected the defense at trial. We disagree with Hall's characterization of the court's ruling.
The court did not refuse to consider Hall's failed defense nor did it conclude that to establish a failed defense as a mitigating factor, the defense must have prevailed at trial. Instead, the court determined, based on the evidence, that Hall's claim that he reasonably believed B.G. to be eighteen years old was weak. The court expressly accepted B.G.'s testimony that Hall was aware of her age from the beginning and rejected Hall's testimony denying that knowledge as not credible. The court stated: "[m]y personal view is that there was never a time when Mr. Hall didn't know this victim's age."
Report of Proceedings (July, 24, 2009) at 41.
Thus, the court considered the failed defense as a basis for imposing an exceptional sentence, but found that there was no factual basis to justify such a departure. As we observed in State v. Garcia-Martinez, "[t]his is an appropriate exercise of sentencing discretion." We conclude that the trial court properly exercised its discretion and its decision declining to impose an exceptional sentence downward is not reviewable.
We affirm the judgment and sentence.
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