Opinion
No. 22959-9-III
Filed: May 26, 2005 UNPUBLISHED OPINION
Appeal from Superior Court of Grant County. Docket No. 01-1-00274-3. Judgment or order under review. Date filed: 07/01/2003. Judge signing: Hon. Ken L Jorgensen.
Counsel for Appellant(s), Nicholas Wright Marchi, Carney Marchi PS, 219 1st Ave S Ste 305, Seattle, WA 98104.
Counsel for Respondent(s), Teresa Jeanne Chen, Grant County Prosecutors Office, PO Box 37, Ephrata, WA 98823-0037.
Stephen Phillip Scott, Attorney at Law, Grant Pros Attorney, PO Box 37, Ephrata, WA 98823-0037.
On remand for resentencing, the court sentenced Jesus Cabrera Ortiz to 61 months, based on an offender score of six. In his first appeal, Mr. Ortiz unsuccessfully argued his convictions for first degree incest and second degree incest encompassed the same criminal conduct. He asks this court to revisit this issue. Because this issue was decided against Mr. Ortiz in the prior appeal without his seeking discretionary review, our mandate issued, making that decision final. Under the law of the case doctrine, we decline reconsideration and affirm.
FACTS
Following a bench trial, Mr. Ortiz was convicted of two counts of first degree incest and three counts of second degree incest. State v. Ortiz, noted at 115 Wn. App. 1051, 2003 WL 550181, at *1 (2003). Because his daughter gave inadequate details to differentiate the three counts of second degree incest, this court concluded sufficient evidence existed to support solely one count. Ortiz, noted at 115 Wn. App. 1051, 2003 WL 550181, at *5.
At resentencing, the court imposed a standard range sentence of 61 months, based on an offender score of six. He was previously sentenced to 89 months, based on an offender score of 9 or more. This second appeal followed.
ANALYSIS
The issue is whether Mr. Ortiz's same criminal conduct argument is barred by the law of the case doctrine.
Previously, Mr. Ortiz argued his offender score should have been two because his convictions encompassed the same criminal conduct. Ortiz, noted at 115 Wn. App. 1051, 2003 WL 550181, at *4. This court pointed out, however, that if it accepted Mr. Ortiz's reasoning, his offender score would be three not two due to the multiplier. Id. (citing RCW 9.94A.525(5)(a)(i) and (16) (conviction with highest offender score counted; sex offense counted as three)). This court did not accept his reasoning. Ortiz, noted at 115 Wn. App. 1051, 2003 WL 550181 at *4. Now, Mr. Ortiz argues his offender score should have been three.
Under the law of the case doctrine, we normally adhere to decisions declaring the applicable law in previous appeals of the same case. Folsom v. County of Spokane, 111 Wn.2d 256, 263, 759 P.2d 1196 (1988). We may, nevertheless, reconsider a decision in a prior appeal if the decision was clearly erroneous, application of the law of the case doctrine would result in manifest injustice, and there would be no injustice to the other party. Id.; RAP 2.5(c)(2). Here, Mr. Ortiz fails to address the law of the case doctrine or the criteria relevant to its application. He makes no attempt to explain why this court's prior decision was erroneous. Even assuming we revisited Mr. Ortiz's same criminal conduct argument, his claim would fail.
For offender score purposes, multiple crimes encompass the same criminal conduct when they involve the same objective criminal intent, the same victim, and the same time and place. RCW 9.94A.589(1)(a); State v. Nitsch, 100 Wn. App. 512, 521, 997 P.2d 1000 (2000). Failure to meet any one element precludes a finding of the same criminal conduct. State v. Morris, 123 Wn. App. 467, 475, 98 P.3d 513 (2004). A trial court's determination of what constitutes the 'same criminal conduct' will not be disturbed absent an abuse of discretion or a misapplication of the law. State v. Tili, 139 Wn.2d 107, 122-23, 985 P.2d 365 (1999), aff'd, 148 Wn.2d 350, 60 P.3d 1192 (2003. The appellate court must narrowly construe the language of RCW 9.94A.589(1)(a) to disallow most assertions of 'same criminal conduct.' State v. Price, 103 Wn. App. 845, 855, 14 P.3d 841 (2000).
However, 'there is one clear category of cases where two crimes will encompass the same criminal conduct — 'the repeated commission of the same crime against the same victim over a short period of time." State v. Palmer, 95 Wn. App. 187, 191 n. 3, 975 P.2d 1038 (1999) (quoting State v. Porter, 133 Wn.2d 177, 181, 942 P.2d 974 (1977)).
As this court previously noted:
Here, while Mr. Ortiz's daughter could not give exact dates, she did testify the incest started in 1999. She testified it occurred more than 10 times; sometimes Mr. Ortiz touched her breasts and on other occasions he touched her vagina. It also occurred at their current residence and at their prior residence. The court found [the daughter's] testimony to be extremely credible.
Ortiz, 115 Wn. App. 1051, 2003 WL 550181, at *4.
Since the abuse did not occur over a short period of time, the sentencing court had tenable grounds to conclude the acts did not encompass the same criminal conduct. Accordingly, the court did not abuse its discretion in finding Mr. Ortiz's first and second degree incest convictions did not encompass the same criminal conduct. The court, on remand, correctly calculated his offender score at six.
Affirmed.
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.
SWEENEY, A.C.J. and SCHULTHEIS, J., concur.