Opinion
No. 26201-4-III.
December 2, 2008.
Appeal from a judgment of the Superior Court for Yakima County, No. 07-1-00101-3, Scott R. Sparks, J. Pro Tem., entered May 18, 2007.
Affirmed in part, reversed in part, and remanded by unpublished opinion per Korsmo, J., concurred in by Schultheis, C.J., and Kulik, J.
A jury convicted William Osman of five felonies arising from a violent attack on his girlfriend, Jacqueline Mora, and also found that three of the offenses were committed with deliberate cruelty. The trial court declined to find that any of the offenses constituted the "same criminal conduct" under the Sentencing Reform Act (SRA) scoring rules and ultimately imposed an exceptional sentence of 480 months. We conclude that the evidence supported the verdicts, none of the offenses merged with each other under double jeopardy principles, and the trial court did not abuse its discretion when it declined to find the crimes constituted the same criminal conduct. We agree with the parties that one prior conviction was wrongly included in the offender score. Accordingly, the convictions are affirmed and the case is remanded for resentencing.
Mr. Osman and Ms. Mora had an on-again/off-again relationship, but were living together in Yakima on January 7, 2007. With them were their children: Lelani, age 2, and Alexander, age 6 months. Mr. Osman accused Ms. Mora of cheating on him and an argument ensued. He bound her with television cables around both wrists; put a sock in her mouth and bound her head with duct tape; and wrapped a heavy chain belt around her neck.
Ms. Mora could not breathe and thought she was going to die. Mr. Osman then took a hot clothing iron and, lifting up her shirt, burned her at least twelve times on the stomach, breast, and hips. He later poked the burns with a kitchen knife. Ms. Mora was able to untie herself. The couple put their two-year-old to bed. Mr. Osman then once more tied her up and again duct-taped a sock in her mouth, and put the metal chain around her neck. He pulled the chain tight to the point she could not breathe, but she did not lose consciousness. After both children were in bed, Mr. Osman told Ms. Mora she was going for a ride and she should kiss the children good-bye since she was not going to see them again. He told her he would take her some place and beat her to death.
He drove her to a Fred Meyer store and drove around behind the store before returning home. During the drive, Mr. Osman told Ms. Mora it would be better if they went their separate ways. They then went home. The next day Mr. Osman told her that it would be worse the next time he got mad at her. Ms. Mora called the police once Mr. Osman left the house.
Emergency room personnel examined Ms. Mora and observed bruising and redness of her neck; her face and lips were swollen and red; she had burn marks from chest to torso, hip to hip; other burn marks and bruises were scattered over her body. A burn mark on her right breast resembled the tip of an iron; fresh iron pattern burns were visible on other parts of her body. Ligature marks were on her wrists and her face appeared swollen and red like someone who had been gagged. The injuries were classified as possibly life-threatening. Ms. Mora told the personnel that she had been made to smoke methamphetamine in order to stay up all night to be tortured.
The emergency room physician, Dr. William Wilson, testified that he had worked as an ER doctor for 19 years and found Ms. Mora's case to be very memorable. She was very distraught and had impressive and significant burns over various regions of her body. He believed the burns could result in long-term disfigurement. He also found petechiae present, which was consistent with a strangulation-type injury. The evidence was consistent with being choked. He opined that someone could die from asphyxiation even without losing consciousness.
A second doctor saw Ms. Mora at the end of February. He said that her burns were healing well, but that some of them were deep and likely to result in permanent scars.
The jury convicted Mr. Osman of one count each of first degree assault, first degree kidnapping, unlawful imprisonment, harassment (threat to kill), and second degree assault. The jury also found that he acted with deliberate cruelty on the two assault convictions and the harassment conviction. The court sentenced him to 412 months in prison on the first degree assault conviction and a consecutive term of 68 months on the kidnapping count. The court imposed concurrent terms of 43 months on both the unlawful imprisonment and harassment convictions, and an additional concurrent term of 84 months on the second degree assault conviction. With an offender score of eight, the standard range on the first degree assault conviction had been 209-277 months. The exceptional length of that sentence was based on the jury's deliberate cruelty finding. Mr. Osman then appealed to this court.
ANALYSIS
Sufficiency of the Evidence
Mr. Osman first challenges the sufficiency of the evidence to support the convictions for first degree assault and first degree kidnapping, as well as the sufficiency of the evidence to support the determination that three of the offenses were committed with deliberate cruelty. Evidence is sufficient to support a verdict in a criminal case if, viewing the evidence in a light most favorable to the prosecution, a jury could find each element of the crime was proven beyond a reasonable doubt. State v. Green, 94 Wn.2d 216, 221-222, 616 P.2d 628 (1980).
First Degree Assault. As charged in this case, to convict of first degree assault, the jury had to find that Mr. Osman, with intent to inflict great bodily harm, assaulted Ms. Mora by force or means likely to produce great bodily harm or death. RCW 9A.36.011(1)(a). Mr. Osman contends that the evidence did not support a finding that he used force and means likely to produce great bodily harm or death. Properly viewed, the evidence permitted the jury to make that determination.
Mr. Osman, on two occasions, stuffed a sock in Ms. Mora's mouth, taped it into place with duct tape, and then pulled on a metal chain around her neck to the point where she could not breathe. A jury could easily conclude that these actions were use of force or means likely to produce great bodily harm or death. Dr. Wilson testified that someone can die from asphyxiation even if they had not lost consciousness. The presence of the petechiae on the neck also permitted the jury to find that the strangulation was likely to produce at least great bodily harm. The evidence supported the verdict on count one.
First Degree Kidnapping. To convict of first degree kidnapping as charged in this case, the jury had to find that Mr. Osman abducted Ms. Mora with the intent to either inflict bodily injury on her or to inflict extreme emotional distress. RCW 9A.40.020(1)(c), (d). Mr. Osman contends that he did not "abduct" Ms. Mora. Abduct, in turn, means to restrain a person by threatened use of deadly force. RCW 9A.40.010(2).
The evidence permitted the jury to find that the trip around the Fred Meyer store was a kidnapping. Mr. Osman forced Ms. Mora into the car by means of threats after an evening of assaultive behavior. He then threatened to beat her to death. A rational jury could find that she was "restrained" by the threatened use of deadly force. Indeed, Mr. Osman concedes as much in his briefing. Br. of Appellant at 17. Accordingly, the evidence supported the verdict on this count as well.
Deliberate Cruelty. The Legislature has provided that a crime manifesting deliberate cruelty to the victim can be punished more harshly than an offense that is not aggravated in such a manner. RCW 9.94A.535(2)(a). "Deliberate cruelty," in turn, has been defined in our case law as an exhibition of gratuitous violence or other conduct that inflicts pain as an end in itself. E.g., State v. Tili, 148 Wn.2d 350, 369, 60 P.3d 1192 (2003). However, the cruel actions must "go beyond that normally associated with the commission of the charged offense." Id. The jury found that both assault counts and the harassment charge were committed with deliberate cruelty. Mr. Osman believes the evidence does not support those findings.
The only count on which the court imposed an exceptional sentence was the first degree assault conviction. That conviction, in turn, was based on the conduct of taping a sock into the victim's mouth and then repeatedly tightening chains around her neck to cut off oxygen. We believe that the jury could find that the repeated attacks, essentially turning on and off the victim's air supply over the course of the evening and leaving her in constant fear of immediate death, amounted to cruelty as an end in itself. It was more than was needed to complete the crime itself.
Whether this evidence supports the deliberate cruelty finding on the other two charges is a question we do not have to reach, however, since the trial court did not use the findings to impose an exceptional sentence on those counts and cannot do so now. The findings have no independent consequence at this point. Accordingly, we will not address the argument.
The evidence supported the verdicts on the two challenged counts, as well as the deliberate cruelty finding in the commission of the first degree assault.
Double Jeopardy
Mr. Osman contends that various combinations of his convictions are precluded by the protections against double jeopardy. None of the challenged offenses were constituent crimes of a greater offense and most of them did not even involve the same evidence. Accordingly, the multiple convictions did not violate the prohibition against double jeopardy.
The double jeopardy clauses of the Fifth Amendment to the constitution of the United States and article I, section 9 of the Washington constitution, are treated as identical. State v. Gocken, 127 Wn.2d 95, 107, 896 P.2d 1267 (1995). The double jeopardy provisions provide three specific protections: (1) protection against a second prosecution for the same offense after acquittal; (2) protection against a second prosecution for the same offense after a conviction; (3) protection against multiple punishments for the same offense. Id. at 100 (citing North Carolina v. Pearce, 395 U.S. 711, 717, 23 L. Ed. 2d 656, 89 S. Ct. 2072 (1969), overruled on other grounds by Alabama v. Smith, 490 U.S. 794, 104 L. Ed. 2d 865, 109 S. Ct. 2201 (1989)). It is the third of those protections that is at issue here.
Whether or not multiple punishments are permitted for the same criminal act is largely a question of legislative intent. State v. Calle, 125 Wn.2d 769, 776, 888 P.2d 155 (1995). Courts apply the test of Blockburger v. United States, 284 U.S. 299, 76 L. Ed. 306, 52 S. Ct. 180 (1932), to determine whether or not multiple punishments are authorized. That test determines whether two crimes are the same offense by seeing if each crime requires proof of elements not found in the other offense. Blockburger, 284 U.S. at 304. In effect, then, the Blockburger test prohibits multiple convictions when one crime is a lesser offense of the greater crime. In addition to comparing elements of the offenses, Washington courts also look at whether the evidence proving one crime also proved the second crime. In re Pers. Restraint of Orange, 152 Wn.2d 795, 820-821, 100 P.3d 291 (2004).
Mr. Osman contends that the offenses of kidnapping and unlawful imprisonment, kidnapping and harassment, and the two assault convictions are barred by double jeopardy. We will review each claim in order.
Kidnapping and Unlawful Imprisonment. Mr. Osman contends that the unlawful imprisonment of Ms. Osman was also the same restraint involved in the kidnapping. Unlawful imprisonment is a lesser included offense of kidnapping. 13A Royce A. Ferguson, Jr. Seth A. Fine, Washington Practice: Criminal Law §§ 1305, at 189 (1990). Accordingly, under the Blockburger test, the two offenses could be the same for double jeopardy purposes if the same evidence was used to prove each crime. That was not the case here. The unlawful imprisonment was established by the two different times that Mr. Osman tied up Ms. Mora in their house. The behavior involved in the kidnapping was the transportation of Ms. Mora away from the house under threat. The kidnapping came later in time after the unlawful imprisonment. The same evidence did not prove each crime. Thus, double jeopardy was not implicated here. In re Pers. Restraint of Orange, supra. Kidnapping and Harassment. Mr. Osman next contends that the kidnapping and harassment convictions involved the same conduct and both convictions cannot stand under double jeopardy. This argument fails the "elements" component of the Blockburger test. As charged here, the kidnapping count required proof that Mr. Osman abducted Ms. Mora with the intent to inflict bodily injury or emotional distress upon her. RCW 9A.40.020(1)(c), (d). Harassment, as charged in this case, required proof that Mr. Osman threatened to kill Ms. Mora and that she reasonably feared the threat would be carried out. RCW 9A.46.020(1)(a)(i), (b), (2)(b).
The two offenses do not stand in a lesser included relationship even as charged in this case. The kidnapping required proof of an "abduction" and the intent to inflict either bodily injury or emotional distress. No such element appears in the harassment charge. Similarly, the victim's reasonable belief that she would be killed, a critical component of the charged harassment count, has no counterpart element in the kidnapping statute. Thus, even if there was a factual overlap involving the two crimes, they were not the same "in law" under the Blockburger test. Double jeopardy does not bar a conviction for each offense.
Finally, Mr. Osman contends the two different assault convictions cannot stand. Second degree assault is a lesser degree offense of first degree assault. RCW 10.61.003. Thus, as with the kidnapping and unlawful imprisonment, the two crimes could potentially be the same under Blockburger and this court must therefore examine the evidence underlying each offense. Once again, different evidence was used to prove each crime, so there is no double jeopardy violation. As charged and argued in this case, the second degree assault was based upon the branding of the victim with the hot iron. In contrast, the first degree assault involved the incidents of near asphyxiation from cutting off the victim's air supply. The two crimes were not the same "in fact."
There was no double jeopardy violation. The crimes that involved the same factual evidence had different elements. The crimes that had the same elements involved different evidence. The trial court correctly permitted each offense to stand. Same Criminal Conduct Except in the circumstance of serious violent crimes, the SRA directs a trial judge to count the other crimes being sentenced as part of the offender score for each other crime, but then have the sentences for the crimes run concurrently with each other. RCW 9.94A.589(1). This requirement is generally referred to as the "multiple offense policy." State v. Batista, 116 Wn.2d 777, 786-787, 808 P.2d 1141 (1991). An exception to the requirement that each crime be added to the offender score exists if a trial judge finds multiple current offenses constituted the "same criminal conduct." In that instance, the multiple offenses are to be treated as one crime for scoring purposes. RCW 9.94A.589(1)(a). "`Same criminal conduct' as used in this subsection, means two or more crimes that require the same criminal intent, are committed at the same time and place, and involve the same victim." Id. Crimes have the same criminal intent if, objectively viewed, one crime furthered the other. State v. Lessley, 118 Wn.2d 773, 777, 827 P.2d 996 (1992).
A judge's ruling with respect to a "same criminal conduct" determination is reviewed for abuse of discretion. State v. Elliott, 114 Wn.2d 6, 17, 785 P.2d 440, cert. denied, 498 U.S. 838 (1990). Discretion is abused if it is exercised on untenable grounds or for untenable reasons. State ex rel. Carroll v. Junker, 79 Wn.2d 12, 26, 482 P.2d 775 (1971). Discretion exercised in violation of a statute is untenable and amounts to an abuse of discretion. Council House, Inc. v. Hawk, 136 Wn. App. 153, 159, 147 P.3d 1305 (2006); State v. Rundquist, 79 Wn. App. 786, 793, 905 P.2d 922 (1995), review denied, 129 Wn.2d 1003 (1996).
Mr. Osman raises six distinct arguments that various combinations of offenses constituted the same criminal conduct. We will again consider each argument in turn. In general, he contends that the crimes occurred at the same time and place, involved the same victim, and showed the same criminal intent to harm Ms. Mora. The State contends that differing intent was behind each offense.
First and Second Degree Assault. The assaults appeared to occur at the same time and place and certainly involved the same victim. The first degree assault, arising out of the attack on Ms. Mora's air supply, was largely occurring simultaneously with the branding of the victim with the hot iron, the basis for the second degree assault. The question is whether the two offenses had differing criminal intent. It appears that the first degree assault was DONe to frighten and control the victim while injuring her. The second degree assault appears to have been committed to torture and torment her. It does not appear that either crime furthered the other. This is a very close question, but we cannot say that the trial court abused its considerable discretion in finding these two offenses were not the same conduct.
Kidnapping and Unlawful Imprisonment. The analysis of these two crimes in the double jeopardy section, supra, controls the outcome of this claim as well. As noted there, these crimes occurred serially. The unlawful imprisonment occurred in the home. The kidnapping occurred in the car. They did not occur at the same time and place and therefore could not constitute the same criminal conduct under the statute. Instructive in this regard is the decision in Lessley. There the defendant broke into a house at gunpoint and kidnapped a woman inside. The Washington Supreme Court confirmed that the burglary and kidnapping offenses did not constitute the same criminal conduct. 118 Wn.2d at 778. One reason that the two offenses failed the same conduct test was that they occurred in different locations at different times. The burglary was accomplished in the home, but the kidnapping only began there and continued through the various locations where the defendant took the victim. Id. Similarly here, the unlawful imprisonment in the house and the kidnapping in the car occurred in different locations and at different times. The two offenses are not the same criminal conduct.
Kidnapping and Harassment. As with the previous section, these two offenses did not occur in the same time and place. There were several threats to kill that could form the basis for the jury's verdict, only one of which occurred in the car during the kidnapping. Even the threat to kill made during the car ride only overlapped a portion of the same time period. None of the threats, however, furthered the kidnapping. Thus, the trial court correctly found that the two offenses did not merge.
Assault and Unlawful Imprisonment. Mr. Osman argues separately that the unlawful imprisonment conviction is the same criminal conduct as each count of assault. This argument is also a very close one. The offenses occurred at the same time and place, involved the same victim, and appeared to have the same criminal intent in that the imprisonment facilitated the commission of the assaults. It is possible, however, that the trial court found that the unlawful imprisonment was complete when the victim was tied up so that it had an independent purpose of restraining the victim to show the defendant's control of the situation, rather than merely furthering the assaults. We are not prepared to find an abuse of discretion on this record, but would ask the court to clarify its reasoning at resentencing in case there is another appeal.
"Incidental" Kidnapping. Appellant's last argument on this point is a contention that the kidnapping was only "incidental" to the other crimes. This is not a "same criminal conduct" scoring issue. Rather, the argument actually is a challenge to the sufficiency of the evidence. See State v. Green, supra (dragging a murder victim a short distance to accomplish the killing merely facilitated the murder and did not constitute a separate offense of kidnapping). We have already found the evidence ample to support the kidnapping conviction. The abduction involved here was substantial and certainly independent of the other crimes. There was nothing "incidental" about it. New RCW 9A.36.021 (1)(g) Appellant next argues that the Legislature's subsequent decision to treat strangulation as second degree assault means that his conviction for first degree assault should be reduced to second degree assault. See Laws of 2007, ch. 79, §§ 1. There are several problems with this argument.
The continued vitality of the "incidental" kidnapping doctrine is an open question. Compare State v. Korum, 120 Wn. App. 686, 86 P.3d 166 (2004), rev'd in part, 157 Wn.2d 614, 141 P.3d 13 (2006) (kidnapping was incidental to robbery) with State v. Louis, 155 Wn.2d 563, 120 P.3d 936 (2005) (rejecting argument that kidnapping merges as "incidental" to robbery).
First, new criminal statutes apply only to crimes committed after the effective date of the statute unless there is an express statement to the contrary. See RCW 10.01.040. Here, the new legislation took effect July 22, 2007. That date is more than six months after January 7, 2007, the date of the crimes at issue here. There is no statement in the statute that it was to be applied retroactively.
Second, the plain language of the statute itself would not mandate application to this case. The new subsection (g) was added to the definition of second degree assault found in RCW 9A.36.021. The opening sentence of that definition, however, expressly indicates that the enumerated means of second degree assault only apply "under circumstances not amounting to assault in the first degree." Thus, the new definition of strangulation as a means of second degree assault would not apply to situations, such as this case, where it was a means of committing first degree assault.
Third, the attempted asphyxiation in this case was not only the result of manual strangulation, the definition used in the new statute. It was also accompanied by jamming a sock in the victim's mouth which further obstructed her airway. Thus, even if the statute otherwise applied to this case, the facts of this assault are beyond those contemplated in the new legislation.
This challenge to the first degree assault conviction fails. The new legislation defining strangulation as a form of second degree assault was not applicable to this case.
Scoring of Prior Offense
Finally, Mr. Osman argues that the prosecution failed to prove the existence of a prior taking a motor vehicle (TMV) conviction that was included in the criminal history used to score four of the crimes. The prosecutor concedes that the offense was not proven in response to the defense challenge. The concession is well founded. The State failed to prove the existence of the conviction and it was error to include it in the offender score.
The kidnapping conviction was given an offender score of "0" based on the operation of RCW 9.94A.589(1)(b).
An exceptional sentence will be reversed when it is imposed on the basis of an incorrect offender score. State v. Parker, 132 Wn.2d 182, 192, 937 P.2d 575 (1997). Accordingly, the erroneous inclusion of the TMV conviction in the offender score requires a new sentencing proceeding.
The convictions are affirmed. The sentence is reversed and the case is remanded for resentencing.
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.
Schultheis, C.J. and Kulik, J., Concur.