criminal conduct analysis in Washington

2024State v. Porter, 133 10 No. 57827-1-II Wn.2d 177, 181, 942 P.2d 974 (1997); State v. Wilson, 136 Wn.

2014This exception “is generally construed narrowly to disallow most claims that multiple offenses constitute the same criminal act.” State v. Porter, 133 Wn.2d 177, 181 , 942 P.2d 974 (1997). ¶37 The parties agree that the time, place, and victim elements of the same criminal conduct test were met in this case.

2020State v. Porter, 133 Wn.2d 177, 181 , 942 P.2d 974 (1997).

2014This exception “is generally construed narrowly to disallow most claims that multiple offenses constitute the same criminal act.” State v. Porter, 133 Wn.2d 177, 181 , 942 P.2d 974 (1997). ¶37 The parties agree that the time, place, and victim elements of the same criminal conduct test were met in this case.

2024In doing so, the court analyzed State v. Dunaway, 109 Wn.2d 207 , 743 P.2d 1237 , 749 P.2d 160 (1988), which “directed courts to ‘focus on the extent to which the criminal intent, as objectively viewed, changed from one crime to the next’” for purposes of analyzing the third factor of the same criminal conduct analysis.

2024In doing so, the court analyzed State v. Dunaway, 109 Wn.2d 207 , 743 P.2d 1237 , 749 P.2d 160 (1988), which “directed courts to ‘focus on the extent to which the criminal intent, as objectively viewed, changed from one crime to the next’” for purposes of analyzing the third factor of the same criminal conduct analysis.

2023Following the amendment, this court determined that the objective intent test from State v. Westwood, No. 100570-9 Dunaway continued to be part of the same criminal conduct analysis for defining “same criminal intent.” Postamendment cases have consistently applied the Dunaway test, requiring that courts look to the objective statutory criminal intent of the crimes charged, as did the court in State v. Chenoweth, 185 Wn.2d 218 , 370 P.3d 6 (2016).

2023Following the amendment, this court determined that the objective intent test from State v. Westwood, No. 100570-9 Dunaway continued to be part of the same criminal conduct analysis for defining “same criminal intent.” Postamendment cases have consistently applied the Dunaway test, requiring that courts look to the objective statutory criminal intent of the crimes charged, as did the court in State v. Chenoweth, 185 Wn.2d 218 , 370 P.3d 6 (2016).

2018In the latter scenario, a trial court considering current offenses first "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."42 The initial entry of such a finding is discretionary.43 This court reviews a trial court's evaluation of same criminal conduct for abuse of discretion or misapplication of law.44 The failure to exercise discretion is an abuse of discretion.45 38 Id. at 143 . 38 Id. at 144 . 40 Id. at 142 . 41 Id. 42 Nitsch, 100 Wn.

2014And, the failure to request that the trial court do a same criminal conduct analysis is " a failure to identify a factual dispute for the court' s resolution and a failure to request an exercise of the court' s discretion." Nitsch, 100 Wn.

2023Bobenhouse quoted Calle, but that language appears in Calle’s analysis of double jeopardy and does not relate to the same criminal conduct analysis. 166 Wn.2d at 896 (quoting Calle, 125 Wn.2d at 780 ).

2023But, in State v. Bobenhouse, 166 Wn.2d 881, 896 , 214 P.3d 907 (2009), this court began to conflate the same criminal conduct test with the test for double jeopardy, leading to the confusion evidenced in this case.

2023State v. Lessley Applied the Dunaway Standard While I agree with the majority that State v. Lessley, 118 Wn.2d 773, 777 , 827 P.2d 996 (1992), affirmed Dunaway, the majority misreads Lessley in saying that the case applied a statutory intent test to determine objective criminal intent under a same criminal conduct analysis.

2023State v. Lessley Applied the Dunaway Standard While I agree with the majority that State v. Lessley, 118 Wn.2d 773, 777 , 827 P.2d 996 (1992), affirmed Dunaway, the majority misreads Lessley in saying that the case applied a statutory intent test to determine objective criminal intent under a same criminal conduct analysis.

2024In doing so, the court analyzed State v. Dunaway, 109 Wn.2d 207 , 743 P.2d 1237 , 749 P.2d 160 (1988), which “directed courts to ‘focus on the extent to which the criminal intent, as objectively viewed, changed from one crime to the next’” for purposes of analyzing the third factor of the same criminal conduct analysis.

2024In doing so, the court analyzed State v. Dunaway, 109 Wn.2d 207 , 743 P.2d 1237 , 749 P.2d 160 (1988), which “directed courts to ‘focus on the extent to which the criminal intent, as objectively viewed, changed from one crime to the next’” for purposes of analyzing the third factor of the same criminal conduct analysis.

2023The same is true of his reliance on Torngren, in which Division Three of this court pronounced that a sentencing court “must apply the same criminal conduct test to multiple prior convictions that a court has not already concluded amount to the same criminal conduct.” 147 Wn.

2013Under RCW a)( 9. i), must apply "[ 525( 4A.a] 5)( 9 sentencing court [] the same criminal conduct test to multiple prior convictions that a court has not already concluded amount to the same criminal conduct." State v. Torngren, 147 Wn.

2017Saunders, 120 Wn.

2013State v. Porter, 133 Wn.2d 177, 181 , 942 P.2d 974 (1997); State v. Saunders, 120 Wn.

2024State v. Porter, 133 10 No. 57827-1-II Wn.2d 177, 181, 942 P.2d 974 (1997); State v. Wilson, 136 Wn.

2014State v. Wilson, 136 Wn.

2023Bobenhouse quoted Calle, but that language appears in Calle’s analysis of double jeopardy and does not relate to the same criminal conduct analysis. 166 Wn.2d at 896 (quoting Calle, 125 Wn.2d at 780 ).

2016From this discussion, it is clear that Calle supports the notion that while separate convictions for incest and rape based on the same incident of sexual intercourse do not offend the double jeopardy clause, calculation of defendant’s offender score is still subject to a separate same criminal conduct analysis under the sentencing statute (currently RCW 9.94A.589(1)(a)). ¶36 Notwithstanding Calle’s distinction between double jeopardy and same criminal conduct, the majority repeats the mistake in the Bobenhouse dicta, stating, “[Legislative history supports the ‘conclusion that the Legislature

2023Regarding the criminal intent prong, the relevant inquiry whether the defendant’s criminal intent, viewed objectively, “changed from one crime to the next.” State v. Tili, 139 Wn.2d 107, 123 , 985 P.2d 365 (1999).

2004State v. Tili, 139 Wn.2d 107, 123 , 985 P.2d 365 (1999); former RCW 9.94A.400(l)(a) (2000).

2013State v. Vike, 125 Wn.2d 407, 411 , 885 P.2d 824 (1994). ¶68 We narrowly construe the same criminal conduct analysis.

2013State v. Vike, 125 Wn.2d 407, 411 , 885 P.2d 824 (1994). ¶68 We narrowly construe the same criminal conduct analysis.

2023But, in State v. Bobenhouse, 166 Wn.2d 881, 896 , 214 P.3d 907 (2009), this court began to conflate the same criminal conduct test with the test for double jeopardy, leading to the confusion evidenced in this case.

2016And, the majority cites to no authority supporting its view that a comparison of "statutory criminal intent" (i.e. mens rea elements in the incest and child rape statutes) is dispositive of the same criminal conduct inquiry in this case. 8 No. 91366-8 (Madsen, C.J., dissenting) Rather than follow the clear case law applying RCW 9.94A.589, the majority, as did the courts below, relies on language in State v. Bobenhouse, 166 Wn.2d 881 , 214 P.3d 907 (2009), that was unnecessary to the result in Bobenhouse and a misstatement of the law.

2023Rather, the defendant asserted that the court had erred as a matter of law by applying “the burglary antimerger statute to the exclusion of the same criminal conduct test.” Williams, 176 Wn.

2023The court determined that, because the prior sentencing court had imposed concurrent sentences for the pertinent offenses, “the current sentencing court needed to apply the same criminal conduct test.” Williams, 176 Wn.

2016App. 512, 520-23 , 997 P.2d 1000 (2000) (noting that because the same criminal conduct inquiry involves both factual determinations and the exercise of discretion, if a defendant fails to bring this to the court’s attention, she waives the challenge to her offender score)).

2016App. 512, 520-23 , 997 P.2d 1000 ) (noting that because the same criminal conduct inquiry involves both factual determinations and the exercise of discretion, if a defendant fails to bring this to the court's attention, she waives the challenge to her offender score)).

2016But while Tili is factually different from the present case, in my view Tills discussion of how to conduct the same criminal conduct analysis is instructive here. ¶18 As Tili noted, “For multiple crimes to be treated as the ‘same criminal conduct’ at sentencing, the crimes must have (1) been committed at the same time and place; (2) involved the same victim; and (3) involved the same objective criminal intent.” 139 Wn.2d at 123 (citing State v. Palmer, 95 Wn.

2016App. 187, 190 , 975 P.2d 1038 (1999); State v. Walden, 69 Wn.

2015State v. Walker, 143 Wn.

2014State v. Walker, 143 Wn.