Opinion
No. 25399-6-III.
November 6, 2007.
Appeal from a judgment of the Superior Court for Spokane County, No. 05-1-03620-7, Harold D. Clarke III, J., entered July 10, 2006.
Affirmed by unpublished opinion per Brown, J., concurred in by Schultheis, A.C.J., and Kulik, J.
James P. Tesch was convicted of first degree murder, first degree kidnapping, conspiracy to commit kidnapping, first degree robbery, conspiracy to commit robbery, and first degree assault, all involving the same victim. He appeals, contending sufficient evidence does not support his convictions. Further, he contends the conspiracy convictions violate double jeopardy. Finally, Mr. Tesch contends the court miscalculated his offender score. Finding no error, we affirm.
FACTS
Ben A. Burkey and Rick L. Tiwater got into an altercation at Mr. Burkey's home. Mr. Burkey, suspecting Mr. Tiwater was an informer, called him "a rat" and told him he would have Mr. Tesch come over to help Mr. Burkey determine if Mr. Tiwater was, indeed, an informant. Report of Proceedings (RP) at 189. Some discussion occurred about having Mr. Tiwater sign over the title of his motorcycle to Mr. Burkey, but the plan was dropped when Mr. Burkey discovered the motorcycle's serial number was scratched out. Mr. Burkey sent his girlfriend, Patricia Lascelles, to get Mr. Tesch. According to Ms. Lascelles, Mr. Tesch arrived at Mr. Burkey's that night and confronted Mr. Tiwater. Mr. Tesch kicked Mr. Tiwater, dragged him in to the kitchen, and then hit him on the head with a hammer.
Mr. Burkey then drove Mr. Tiwater's motorcycle to a friend's house and parked it. Mr. Tesch followed in a car and returned with Mr. Burkey to Mr. Burkey's home. Mr. Tesch then carried an unconscious Mr. Tiwater to a friend's Ford Thunderbird and loaded him in the backseat. Mr. Burkey and Mr. Tesch drove away with Mr. Tiwater.
The next morning, Mr. Burkey and Mr. Tesch returned to Ms. Lascelles' home without Mr. Tiwater. Mr. Burkey had blood on his coat and clothing. Mr. Tesch had some of Mr. Tiwater's clothes and was carrying a golf club with blood on it. Mr. Tesch told Ms. Lascelles to wash the car and burn the clothes.
Mr. Tesch gave his girl friend, Marlana Panessa, information about the events, including Mr. Tiwater's condition when he first arrived at Mr. Burkey's house, Mr. Tiwater's hair being on fire after he was dead, and the use of a golf club that night. Ms. Panessa believed Mr. Tesch told her Mr. Tiwater was run over by the Ford Thunderbird. Mr. Tiwater's motorcycle was moved to Mr. Tesch and Ms. Panessa's home and stored nearby. Mr. Tesch told his mother-in-law "it was hard — hard to see a man run with his pants down around his ankles." RP at 503.
Mr. Tiwater's body was later found off to the side of a dirt road in a remote area of Spokane. He had been beaten, run over by a car, and had his hair burned to the scalp. His pants were down around his ankles. A broken mud flap was found at the scene as well as tire tracks. A mud flap was missing from the Ford Thunderbird and the vehicle's tires matched the tire tracks discovered at the crime scene. Mr. Tiwater's hair and blood were found on the vehicle's undercarriage.
The State charged Mr. Tesch, as an actor and/or accomplice, with first degree murder, first degree kidnapping, conspiracy to commit first degree kidnapping, first degree robbery, conspiracy to commit first degree robbery, and first degree assault. The jury found Mr. Tesch guilty as charged. The jury found none of the crimes were committed while Mr. Tesch was armed with a deadly weapon. Mr. Tesch appealed.
ANALYSIS A. Evidence Sufficiency
The issue is whether sufficient evidence supports Mr. Tesch's six convictions.
Evidence is sufficient to support a conviction if, viewed in the light most favorable to the State, it allows any rational trier of fact to find the essential elements of the crime beyond a reasonable doubt. State v. Smith, 155 Wn.2d 496, 501, 120 P.3d 559 (2005). An insufficient evidence claim admits the truth of the State's evidence. Id.
Mr. Tesch first contends insufficient evidence supports his first degree murder conviction because the evidence insufficiently shows the predicate offenses of first degree kidnapping and first degree robbery. A person is guilty of first degree murder when: "He or she commits or attempts to commit the crime of either (1) robbery in the first or second degree . . . or (5) kidnapping in the first or second degree, and in the course of or in furtherance of such crime or in immediate flight therefrom, he or she, or another participant, causes the death of a person other than one of the participants." RCW 9A.32.030(1)(c).
To convict Mr. Tesch of first degree kidnapping, the jury had to find beyond a reasonable doubt that he intentionally abducted Mr. Tiwater with the intent to "[t]o facilitate commission of any felony or flight thereafter" or "[t]o inflict bodily injury on him." RCW 9A.40.020(1)(b), (c). "'Abduct' means to restrain a person by either (a) secreting or holding him in a place where he is not likely to be found, or (b) using or threatening to use deadly force." RCW 9A.40.010(2).
Here, testimony showed Mr. Tesch and Mr. Burkey placed an unconscious Mr. Tiwater in the back of a car and drove him to a remote area. These actions constitute abduction. Next, Mr. Tiwater was beaten, burned and run over by a car, which resulted in his death. The abduction facilitated the commission of a felony. While Mr. Tesch presents another version of the events, we defer to the trier of fact in matters of witness credibility and evidence weight. State v. Thomas, 150 Wn.2d 821, 874, 83 P.3d 970 (2004). Mr. Tesch also argues he lacked the intent to commit kidnapping; however, we "may infer criminal intent from conduct, and circumstantial evidence as well as direct evidence carries equal weight." State v. Varga, 151 Wn.2d 179, 201, 86 P.3d 139 (2004) (citing State v. Delmarter, 94 Wn.2d 634, 638, 618 P.2d 99 (1980)).
"A person acts with intent when he or she acts with the objective or purpose to accomplish a result constituting a crime." State v. Wilson, 125 Wn.2d 212, 217, 883 P.2d 320 (1994); RCW 9A.08.010(1)(a). Mr. Tesch carried an unconscious Mr. Tiwater to the car and accompanied him to a dirt road where he was later found dead, suggesting intent. Evidence supports the elements of first degree kidnapping.
Based on the first degree murder statute, the State needed to prove Mr. Tesch caused the death of Mr. Tiwater in the course of, or in furtherance, or in immediate flight, from one of the listed crimes. RCW 9A.32.030(1)(c). Since sufficient evidence supports the first degree kidnapping conviction and the murder took place in the course of the kidnapping, sufficient evidence supports the first degree murder conviction. We now turn to the sufficiency of the evidence to support his first degree robbery conviction.
A person commits robbery if he or she unlawfully takes personal property from another against that person's will and uses force to retain possession of the property or to prevent or overcome resistance to the taking. RCW 9A.56.190. A person commits first degree robbery if, in the commission of a robbery, or in immediate flight therefrom, he or she inflicts bodily injury. RCW 9A.56.200(1)(a)(iii).
Viewing the evidence in a light most favorable to the State, Mr. Tiwater's motorcycle was taken against his will and by force. After Mr. Tiwater was unconscious, his motorcycle was moved to another residence. Then, after his death, Mr. Tesch had the motorcycle taken to the house he shared with Ms. Panessa. Expert and lay testimony support Mr. Tiwater was severely beaten prior to the motorcycle being moved to another residence. Because bodily injury was inflicted, the robbery was elevated to first degree. Thus, sufficient evidence supports the first degree robbery conviction.
Mr. Tesch mentions an instructional error on the robbery charge in the argument section of his brief. Because he failed to assign error to this contention as required under RAP 10.3(a)(4), we consider the issue waived.
Next, Mr. Tesch argues insufficient evidence supports the conspiracy convictions because the State did not prove an agreement between him and Mr. Burkey. "A person is guilty of criminal conspiracy when, with intent that conduct constituting a crime be performed, he or she agrees with one or more persons to engage in or cause the performance of such conduct, and any one of them takes a substantial step in pursuance of such agreement." RCW 9A.28.040(1).
Mr. Tesch came to Mr. Burkey's residence to deal with Mr. Tiwater, a suspected informant. Mr. Tesch discussed Mr. Tiwater's motorcycle with Mr. Burkey and they devised a plan to move it. They placed Mr. Tiwater in the back seat of the Ford Thunderbird and took him to the outskirts of town. Viewing this evidence in a light most favorable to the State, Mr. Burkey and Mr. Tesch agreed to rob and kidnap Mr. Tiwater together, and at least one of them took a substantial step in furtherance of each crime. Thus, sufficient evidence supports the conspiracy to commit kidnapping and conspiracy to commit robbery convictions. Next we examine the first degree assault evidence.
"A person is guilty of assault in the first degree if he or she, with intent to inflict great bodily harm: (a) Assaults another with a firearm or any deadly weapon or by any force or means likely to produce great bodily harm or death." RCW 9A.36.011(1)(a). "[C]ircumstantial evidence as well as direct evidence carries equal weight." Varga, 151 Wn.2d at 201 (citing Delmarter, 94 Wn.2d at 638).
Here, both direct and circumstantial evidence show Mr. Tesch assaulted Mr. Tiwater in the first degree. Ms. Lascelles testified Mr. Tesch kicked Mr. Tiwater, dragged him in the kitchen and then hit him on the head with a hammer. Expert testimony showed Mr. Tiwater was severely beaten. Evidence weight is left to the trier of fact. Maxfield, 125 Wn.2d at 385. The jury could find Mr. Tesch, with intent to inflict great bodily harm, assaulted Mr. Tiwater by force, likely to produce great bodily harm or death. Sufficient evidence exists to support Mr. Tesch's conviction.
B. Double Jeopardy
The issue is whether Mr. Tesch's conspiracy to commit first degree kidnapping and conspiracy to commit first degree robbery convictions violate double jeopardy principles. Mr. Tesch contends one conspiracy encompassed multiple objectives.
The state and federal constitutions guarantee that no person will be twice put in jeopardy for the same offense. U.S. Const. amend V ; Const. art. I, § 9; State v. Bobic, 140 Wn.2d 250, 260, 996 P.2d 610 (2000). Double jeopardy protects the defendant from multiple convictions under the same statute for committing just one unit of the crime. Bobic, 140 Wn.2d at 261-62.
Criminal conspiracy is an agreement to carry out a criminal scheme, along with a substantial step toward carrying out that agreement. RCW 9A.28.040(1). The punishable criminal conduct is the plan, not whatever statutory violations the co-conspirators considered in the course of devising the plan. State v. Williams, 131 Wn. App. 488, 496, 128 P.3d 98 (2006). "'Whether the object of a single agreement is to commit one or many crimes, it is in either case that agreement which constitutes the conspiracy which the statute punishes.'" Bobic, 140 Wn.2d at 264-65 (quoting Braverman v. United States, 317 U.S. 49, 53, 63 S. Ct. 99, 87 L. Ed. 23 (1942)).
Here, one conspiracy existed to rob Mr. Tiwater of his motorcycle. After the taking, Mr. Burkey and Mr. Tesch conspired to abduct Mr. Tiwater to inflict bodily harm. Because the two conspiracies occurred serially instead of simultaneously, Mr. Tesch's two conspiracy convictions do not violate double jeopardy principles.
C. Sentencing
The issue is whether the sentencing court miscalculated Mr. Tesch's offender score by failing to merge the conspiracy convictions.
The court found Mr. Tesch's first degree robbery and first degree kidnapping convictions encompassed the same criminal conduct as the first degree murder conviction and merged the convictions. The offender score for these convictions was a four. The court sentenced Mr. Tesch to 372 months for first degree murder. The court concluded the conspiracy charges did not merge with the first degree kidnapping and first degree robbery convictions, and calculated Mr. Tesch's offender score on the conspiracy convictions as a six. The court sentenced him to 86 months on the conspiracy to kidnap and 90 months on the conspiracy to rob. Both sentences were run concurrently to the first degree murder sentence. The court calculated Mr. Tesch's offender score as zero on the assault conviction and sentenced him to 108 months to run consecutively to the murder sentence. His total sentence was 480 months.
A court's calculation of a defendant's offender score is a question of law, which we review de novo. State v. Mitchell, 81 Wn. App. 387, 390, 914 P.2d 771 (1996). We review for abuse of discretion a trial court's ruling on whether multiple crimes committed by a defendant constitute the "same criminal conduct" for sentencing purposes under RCW 9.94A.589(1)(a). Discretion is abused if it is exercised without tenable grounds or reasons. State ex rel. Carroll v. Junker, 79 Wn.2d 12, 26, 482 P.2d 775 (1971).
Under RCW 9.94A.589(1)(a), current offenses that are the "same criminal conduct" count as one point in a defendant's offender score calculation. RCW 9.94A.589(1)(a) defines "same criminal conduct" as (1) two or more crimes that require the same criminal intent, (2) are committed at the same time and place, and (3) involve the same victim. All three prongs of same criminal conduct must be met; the absence of any one of them prevents a finding of same criminal conduct. State v. Lessley, 118 Wn.2d 773, 778, 827 P.2d 996 (1992).
Here, the criminal intent for each conspiracy conviction was different. One intent was to deprive him of property and another was abduction for bodily harm. Thus, the conspiracy convictions did not merge. Further, the record shows Mr. Tesch committed the crime of conspiracy to commit robbery and conspiracy to commit kidnapping before the actual robbery and kidnapping took place. Because the conspiracies were completed before the actual crimes, the trial court did not abuse its discretion in declining to view the convictions as the same criminal conduct. Given all, Mr. Tesch fails to show sentencing error.
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.