Opinion
Nos. 24494-2-II, c/w 27185-1-II.
Filed: March 2, 2001. DO NOT CITE. SEE RAP 10.4(h). UNPUBLISHED OPINION.
Appeal from Superior Court of Grays Harbor County, No. 98-1-00485-4, Hon. David E. Foscue, March 25, 1999, Judgment or order under review.
Counsel for Appellant(s), John L. Farra, Attorney At Law, P.O. Box 817, Ocean Shores, WA 98569.
Counsel for Respondent(s), Gerald R. Fuller, Grays Harbor Co Deputy Pros Atty, Rm 102, 102 W Broadway, Montesano, WA 98563.
In this consolidated appeal, Kori L. Lake challenges his sentence for the crime of first degree robbery while armed with a deadly weapon. He claims that his 1990 Montana convictions were the same criminal conduct and, thus, the sentencing court erred in counting them separately for offender score purposes. Following a hearing on remand, the court determined that the Montana convictions were not the same criminal conduct. We hold that the court did not abuse its discretion in so ruling and affirm.
No. 27185-1-II is Lake's appeal of the court's order entered after a hearing on remand, which we consolidated with No. 24494-2-II, his initial appeal of the judgment and sentence.
Facts
In 1999, Lake pleaded guilty to one count of first degree robbery while armed with a deadly weapon. At sentencing, the court calculated his offender score as three, based on two 1990 convictions in Montana for aggravated assault and felony theft. The court imposed a standard range sentence of 85 months' confinement.
Lake appealed, claiming that the trial court miscalculated the offender score because it should have considered the two 1990 Montana convictions as a single offense. In January 2001, a commissioner of this court remanded this matter to the sentencing court to determine whether the Montana convictions were the same criminal conduct.
On March 7, 2001, the hearing on remand was held before the same judge who previously sentenced Lake. The court admitted five documents related to the Montana convictions: the amended information (Exhibit 1); the original information (Exhibit 2); the affidavit of probable cause (Exhibit 3); the judgment (Exhibit 4); and the presentence investigation report (Exhibit 5). Lake objected to the presentence report on the grounds that it was prejudicial and did not present Lake's account of the offenses. The court overruled his objection and considered the report.
The exhibits showed that the Montana convictions arose out of the same incident and involved the same victim, Joseph Shippentower. It was undisputed that, on July 29, 1989, Lake stabbed Shippentower and then took his car and some personal property. The presentence report contained both men's accounts of the stabbing. Lake's statements about the incident were:
Mr. Shippentower incited a fight with me after attempting to fondle me in the groin area. Upon my resistance he pulled a knife and when he was disarmed he still fought and thus was hurt.
. . . .
I took his money for a bus ticket and I was unexcusably wrong in doing that. I took his vehicle because I could not open the trunk and get by [sic] bag which contained my I.D. That was wrong also.
Exhibit 5, page 3 (Presentence Investigation Report). Shippentower's version was markedly different. Shippentower said he was asleep in the back seat of the car when Lake attacked him with the knife; he denied making any sexual advances toward Lake.
The court also considered Lake's statement about the Montana offenses which he made during the 1999 sentencing hearing. Referencing page 40 of the transcripts from that hearing, the court noted Lake's explanation that he had committed the aggravated assault in self defense, telling the court that: "[T]he injury that occurred to that person was a result of me using excessive force while I was defending myself." Report of Proceedings (Mar. 7, 2001) at 24 (quoting Report of Proceedings (Mar. 25, 1999) at 40). Lake objected to the court's consideration of the statement, arguing that it was improper without prior notice to the parties and without the admission of the transcripts as an exhibit.
The court rejected Lake's same criminal conduct claim, ruling that (1) the assault was not committed for the purpose of taking personal property from Shippentower or for stealing his money or car, and (2) Lake took the personal property items and the car after the assault and for the purpose of leaving the scene and financing his continued travels. It reaffirmed the sentence previously imposed. Lake appeals.
Analysis
Lake claims that the sentencing court erred in ruling that the Montana offenses were not the same criminal conduct for offender score purposes.
We will uphold a trial court's same criminal conduct determination absent a clear abuse of discretion or misapplication of the law. State v. Haddock, 141 Wn.2d 103, 110, 3 P.3d 733 (2000).
To constitute same criminal conduct, the crimes must involve the same criminal intent, the same time and place, and the same victim. RCW 9.94A.400(1)(a). All three elements must be met; the absence of any one precludes a finding of same criminal conduct. Haddock, 141 Wn.2d at 110. Here, it is undisputed that the Montana crimes involved the same victim and occurred at the same place and time. Thus, the only element at issue is intent.
In determining whether two offenses involve the same intent, the inquiry focuses on the extent to which the offender's criminal intent, viewed objectively, changed from one crime to the other. Haddock, 141 Wn.2d at 113. See also State v. Rodriguez, 61 Wn. App. 812, 816, 812 P.2d 868, review denied, 118 Wn.2d 1006 (1991). Lake argues that he `could not have been quilty [sic] of theft without in fact assaulting the victim,' and cites this court's decision in State v. Miller, 92 Wn. App. 693, 964 P.2d 1196 (1998), review denied, 137 Wn.2d 1023 (1999). His reliance on Miller is misplaced.
Miller held that the offenses of attempted theft of a firearm and third degree assault constituted the same criminal conduct where the defendant's struggle with the assault victim was one continuous event with no change in purpose throughout the struggle. Miller, 92 Wn. App. at 706.
There, the evidence showed that the defendant had intended throughout the struggle to deprive the victim, a police officer, of his weapon. Miller, 92 Wn. App. at 708. In contrast, the evidence here did not indicate a single purpose underlying the assault on Shippentower and the theft. Rather, the court found, consistent with Lake's own version of the incident, that he committed the assault in response to Shippentower's sexual overture. The court also found that Lake's purpose in the subsequent theft was to finance his travels and to leave the scene by taking Shippentower's car. Unlike Miller, there were different intents behind Lake's assault on Shippentower and the subsequent theft of his car and belongings.
Although Lake assigns error to the court's written findings, he does not argue or show that these findings are unsubstantiated. Indeed, the exhibits admitted at the remand hearing provide substantial evidence to support the findings. Further, based on its findings that the crimes did not involve the same intent, the court properly rejected Lake's same criminal conduct claim. We hold that the court did not abuse its discretion.
Lake also appears to argue that because he received concurrent sentences for the two Montana crimes, they should be treated as the same criminal conduct for offender score purposes. This argument fails. Assuming that the Montana court, by ordering the sentences to run concurrently, considered them to be the same offense, the sentencing court here was not bound by that determination. See State v. Wright, 76 Wn. App. 811, 888 P.2d 1214, review denied, 127 Wn.2d 1010 (1995). RCW 9.94A.360(5)(a)(i) requires that the current sentencing court make an independent determination on whether prior offenses for which sentences were served concurrently, are to be counted as one or separate offenses using the same criminal conduct analysis of RCW 9.94A.400(1)(a). Wright, 76 Wn. App. at 828-29; State v. Lara, 66 Wn. App. 927, 930-31, 834 P.2d 70 (1992). The prior court's determination does not control. Here, the sentencing court correctly exercised its own discretion in determining whether the Montana offenses constituted the same criminal conduct.
Lake also contends that the court erred by admitting the presentence report over his objection. His objection lacked merit. Contrary to his assertion, the presentence report did contain his account of the incident. Moreover, the Sentencing Reform Act of 1981 mandates that the sentencing court consider the presentence reports in determining a standard range sentence. State v. Mail, 121 Wn.2d 707, 711, 854 P.2d 1042 (1993) (citing RCW 9.94A.110). The court may also consider other sources of information. Mail, 121 Wn.2d at 711. Here, the Montana judgment showed that the presentence report was part of the evidence considered by the Montana court. Because the report contained facts underlying Lake's convictions, it provided helpful information for the sentencing court in evaluating his same criminal conduct claim. Thus, the court did not err by admitting the presentence report.
Finally, Lake contends that the court improperly considered the transcripts from the 1999 sentencing hearing. But he fails to support his assertions of `misconduct,' violations of `due process' and a `fair hearing' with any argument or citation to legal authority. Br. of Appellant at 11. Thus, we decline to address his claim. RAP 10.3(a)(5); State v. Elliott, 114 Wn.2d 6, 15, 785 P.2d 440 (appellate court need not consider claims that are insufficiently argued), cert. denied, 498 U.S. 838 (1990). Additionally, we perceive no unfairness to Lake that his own words from an earlier hearing were recalled (with the help of transcripts prepared for his appeal) and considered by the same judge asked to revisit the offender score computation. Lake's claim fails.
Affirmed.
A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.06.040, it is so ordered.
WE CONCUR: ARMSTRONG, C.J., QUINN-BRINTNALL, J.