Opinion
No. 52725-8-I.
Filed: June 1, 2004. UNPUBLISHED OPINION
Appeal from Superior Court of King County. Docket No. 03-8-01300-7. Judgment or order under review. Date filed: 07/02/2003. Judge signing: Hon. Leroy McCullough.
Counsel for Appellant(s), Washington Appellate Project, Attorney at Law, Cobb Building, 1305 4th Avenue, Ste 802, Seattle, WA 98101.
Oliver Ross Davis, WA Appellate Project, Cobb Bldg, 1305 4th Ave Ste 802, Seattle, WA 98101-2402.
A Nelson — Informational only (Appearing Pro Se), 13839 115th Avenue NE, Kirkland, WA 90834.
Counsel for Respondent(s), Prosecuting Atty King County, King County Prosecutor/appellate Unit, 1850 Key Tower, 700 Fifth Avenue, Seattle, WA 98104.
Amy Elizabeth Montgomery, King Co Pros Office, Rm W554, 516 3rd Ave, Seattle, WA 98104-2312.
Anthony Nelson appeals the computation of his offender score arguing that his past convictions for second degree assault and second degree unlawful possession of a firearm were the same criminal conduct. But objectively viewed, the two crimes had different mental states. Additionally, the general public is the victim of unlawful possession of a firearm but an individual was the victim of the assault. Because the two crimes did not have the same criminal intent or the same victim the trial court did not abuse its discretion in concluding that they were not the same criminal conduct. The disposition is affirmed.
FACTS
In October 2002, Anthony Nelson used a screwdriver to start a stolen car and knowingly rode in the stolen car. He entered a plea of guilty. At his disposition, he argued that his offender score should not be computed as 4 because his 2000 adjudications of assaulting his sister and unlawfully possessing a firearm occurred at the same time, involved the same victim and the same intent. The State provided the court with Nelson's 2000 statement on plea of guilty where he recited that: "On May 18, 2000 in King County, Washington, I intentionally pointed a handgun at my sister. I did not have the handgun under the supervision of a parent and I was under the age of 18 at the time."
At the disposition for the 2002 taking and riding offense, the court rejected Nelson's argument that the 2000 assault and firearms offenses were same criminal conduct. The court imposed a standard range disposition based upon an offender score of 4.
DECISION
In calculating a juvenile's offender score, each prior offense is counted separately, unless the disposition court finds that they `encompass the same criminal conduct.' Offenses encompass the same criminal conduct when they are committed against the same victim, at the same time and place, and require the same objective criminal intent. We review a trial court's determination regarding same criminal conduct for abuse of discretion or misapplication of law.
State v. Contreras, 124 Wn.2d 741, 748, 880 P.2d 1000 (1994).
State v. Maxfield, 125 Wn.2d 378, 402, 886 P.2d 123 (1994).
The objective intent required for unlawful firearm possession is voluntary possession of a gun. In contrast, second degree assault based upon pointing a gun at another requires intent to create in the victims' minds a reasonable apprehension of harm. In State v. Thompson this court held that assault by pointing a gun at another and unlawful possession of that firearm do not share the same criminal intent because the objective intent for possession of a firearm is different from the objective intent for assault.
RCW 9.41.040(1)(a); State v. Thompson, 55 Wn. App. 888, 894, 781 P.2d 501 (1989).
RCW 9A.40.030(1); State v. Billups, 62 Wn. App. 122, 128, 813 P.2d 149 (1991).
State v. Thompson, 55 Wn. App. at 894 ("Objectively viewed, the criminal intent changed from one crime to the next.")
Nelson attempts to distinguish Thompson because the opinion expressly notes that Thompson possessed the gun both before and after the assault. There is no record that Nelson possessed the gun before or after he pointed it at his sister. Nelson argues that if a person picks up a handgun, immediately points it at another solely to cause apprehension of harm by that individual, and then immediately puts the gun down, then the possession of the handgun was for the exclusive purpose of furthering the assault and viewed objectively, the criminal purpose was identical. He relies upon cases addressing same criminal conduct for sequential crimes or crimes sharing the same mental state. But when considering two crimes committed simultaneously, whether one offense furthered the other is of little concern. If two simultaneous crimes have different mental states then the offenses count as separate crimes. Because the second degree assault and second degree unlawful possession of a firearm have different objective intents, they are not the same criminal conduct. Nelson also argues that if the handgun was possessed solely for the time required to commit the assault, then the victim of the assault was the victim of both crimes. But the victim of unlawful possession of a firearm is the public at large. Nelson provides no persuasive authority that the public is not the victim when the possession may have been limited in duration.
See State v. Haddock, 141 Wn.2d 103, 112-13, 3 P.3d 733 (2000) ("the intent inquiry also focuses on the extent to which the offender's `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). Thus, counts with identical mental elements, if committed for different purposes, would not be considered the `same criminal conduct.'")
State v. Vike, 125 Wn.2d 407, 412, 885 P.2d 824 (1994) ("the furtherance test lends itself to sequentially committed crimes, [but i]ts application to crimes occurring literally at the same time is limited.").
State v. Rodriguez, 61 Wn. App. 812, 816, 812 P.2d 868 (1991) ("If the intents are different, the offenses will count as separate crimes.")
State v. Haddock, 141 Wn.2d 103, 110-11, 3 P.3d 733 (2000) ("the victim of the offense of unlawful possession of a firearm is the general public."); State v. Simonson, 91 Wn. App. 874, 885, 960 P.2d 955 (1998).
Nelson fails to demonstrate that the unlawful possession of firearm count and the assault were not the same criminal conduct.
The disposition is affirmed.
APPELWICK, KENNEDY, and COLEMAN, JJ.