State v. Flake

• Decision Date: 14 November 1994
• Docket Number: No. 32820-4-I,32820-4-I
• Citation: 76 Wn.App. 174,883 P.2d 341
• Court: Washington Court of Appeals
• Parties: The STATE of Washington, Respondent, v. Darin Wilson FLAKE, Appellant.

Page 174

76 Wn.App. 174

883 P.2d 341

The STATE of Washington, Respondent, v. Darin Wilson FLAKE, Appellant.

No. 32820-4-I.

Court of Appeals of Washington Division 1.

Nov. 14, 1994.

David L. Donnan, Seattle, for appellant.

David F. Thiele, Everett, for respondent.

SCHOLFIELD, Judge.

Darin Wilson Flake appeals the judgment and sentence entered against him on June 1, 1993, for one count of vehicular assault and one count of "hit and run injury accident". He argues that the trial court abused its discretion by concluding that the crimes were not the same criminal conduct. He also contends that the trial court erroneously ordered the two sentences to run consecutively when one sentence was outside the standard range because doing so amounted to imposing two exceptional sentences. Alternatively, he argues that even if the court may impose two exceptional sentences, there were insufficient aggravating factors here to support both sentences. Finally, Flake argues that imposing the sentences consecutively caused his total confinement to exceed the individual statutory maximum sentence for each crime. We affirm.

On May 7, 1993, Darin Wilson Flake pleaded guilty to one count of vehicular assault and one count of "hit and run injury accident". The information identified 24-year-old Mitsuhide Teruya as the victim of both crimes. The charges read:

COUNT I: VEHICULAR ASSAULT, committed as follows: That the defendant, on or about the 27th day of March, 1993, did unlawfully operate a motor vehicle in a reckless manner and while under the influence of intoxicating liquor and any drug and this conduct was the proximate cause of serious bodily injury to another person, to-wit: Mitsuhide Teruya; proscribed by RCW 46.61.522, a felony, and

COUNT II: HIT AND RUN INJURY ACCIDENT, committed as follows: That the defendant, on or about the 27th day of March, 1993, did operate a motor vehicle which was involved in an accident which resulted in injury to another person, to-wit: Mitsuhide Teruya, a human being, and knowing that he had been involved in the accident, the defendant did not immediately stop such vehicle at the scene of such accident and did not remain at the scene of such accident until all of the following requirements were fulfilled: Providing his name, address, insurance company, insurance policy number, vehicle license number and exhibit his vehicle driver's license to any person struck or injured or the driver or any occupant of, or any person attending, such vehicle collided with, and render to any person injured in such accident reasonable assistance; proscribed by RCW 46.52.020, a felony.

At Flake's sentencing hearing, defense counsel stated on the record that he did not object to witnesses testifying and he had "advised [the prosecutor] that ... anybody who wishes to speak on behalf of the victim is certainly more than welcome to do so." Mitsuhide Teruya's attorney, Joseph Hunt, testified about the catastrophic injuries Teruya suffered as a result of the assault. ¹ The victim impact statement Hunt prepared similarly described Teruya's injuries and documented the extreme emotional and financial consequences the injuries caused him and his family. Numerous other letters from friends likewise recounted Teruya's devastating injuries. While Mitsuhide Teruya was the only victim named in the information, Yoo-Mee Park and Junichi Komazaki were also in Teruya's car and were injured when the accident occurred. According to Hunt's undisputed testimony, Yoo-Mee Park suffered abrasions and had glass in her hand that required surgical removal, ² and Junichi Komazaki suffered a broken collarbone and abrasions on his forehead.

According to Hunt's unchallenged testimony and the undisputed facts asserted in Teruya's victim impact statement, Flake had used drugs before he began driving on the day of the collision. He had no driver's license or insurance, and he was also a habitual traffic offender. Hunt listed Flake's extensive criminal history and asked the court to impose an exceptional sentence on the ground that there were multiple victims.

When the trial court asked defense counsel to respond to Hunt's assertion that an exceptional sentence was warranted because there were multiple victims, defense counsel stated:

[U]nder the real facts doctrine, I believe that we are presently before the Court on this offense with respect to this victim [Teruya]. Those issues are not presently before the Court. The only reason that they are before the Court is that Mr. Hunt was given permission to speak on behalf of the victim. Under those circumstances, I don't believe that that issue is presently available.

Flake did not dispute the fact that Mitsuhide Teruya "suffered substantial grievous bodily injury." However, he argued that the two crimes involved the same criminal conduct and that his offender score therefore should have been 4 for each count, rather than 5. The court disagreed, concluding that the two crimes

have two separate purposes, if one can say that the vehicular assault has any purpose at all. But certainly the purpose behind hit and run--the objective purpose behind hit and run is to avoid responsibility for one's actions and I think that is a separate criminal purpose and is a crime that requires a different criminal intent than that required for vehicular assault.

Consequently, the standard range for each class C felony was 22-29 months. The maximum statutory term for each felony was 5 years. The State recommended 25 months for each conviction, with the sentences to run concurrently. The trial court imposed the recommended 25 months for the hit and run conviction after concluding that there was no basis for an exceptional sentence for it. However, the court imposed an exceptional sentence of 48 months for the vehicular assault conviction.

In addition, the trial court ordered the two sentences to run consecutively because

to run the sentences concurrently would be inappropriate. I think there's a need to send a very strong message to Mr. Flake that apparently has not been received at any time in the past and I'm going to order that the sentences for the two offenses run consecutively.

The court's written findings of fact and conclusions of law for the exceptional sentences read:

(a) There are many organs and parts of Mitsuhide Teruya's body that do not function any more. As a result of the collision, he is permanently paralyzed from the chin down. This goes beyond the typical degree of injury in a vehicular assault case.

(b) The effect of these injuries upon the victim Teruya and his parents is extraordinary and irreversible, including the effect upon their social and economic lives. The effect is more than the typical effect in vehicular assault cases.

The court concludes that (a) and (b) above alone support the exceptional sentence imposed. However, the court also finds:

(c) There are multiple victims in this case. RCW 9.94A.400; RCW 9.94A.110.

(d) The defendant knowingly drove without any insurance. Thus, the victims had a greater financial loss than if he had been insured.

(e) The defendant drove when he was not legally permitted to drive, i.e., his privilege to drive had been suspended/revoked at the time of the collision. ³

Flake appeals.

I. SAME CRIMINAL CONDUCT

We first decide whether Flake's crimes of vehicular assault and "hit and run injury accident" are the same criminal conduct for purposes of calculating his offender score. Flake contends that they are. We disagree.

RCW 9.94A.400(1)(a) reads in part:

[W]henever a person is to be sentenced for two or more current offenses, the sentence range for each current offense shall be determined by using all other current and prior convictions as if they were prior convictions for the purpose of the offender score: PROVIDED, That if the court 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.... "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.

The Legislature intended the phrase "same criminal conduct" to be construed narrowly. State v. Vike, 66 Wash.App. 631, 634, 834 P.2d 48 (1992), review granted, 123 Wash.2d 1019, 875 P.2d 635 (1994). Whether two or more crimes require the same objective criminal intent can be measured by determining whether one crime furthered another. State v. Lessley, 118 Wash.2d 773, 778, 827 P.2d 996 (1992); see also State v. Lewis, 115 Wash.2d 294, 302, 797 P.2d 1141 (1990) ("[t]he SRA's single criminal conduct analysis has approached a single intent as entailing numerous offenses committed as part of a scheme or plan, with no substantial change in the nature of the criminal objective"). ⁴ If any one of the three elements of same criminal conduct is missing, multiple offenses must be counted separately when calculating the offender score. Lessley, 118 Wash.2d at 778, 827 P.2d 996. The court's decision of whether different crimes involve the same criminal conduct will not be disturbed on appeal unless there was a clear abuse of discretion or a misapplication of the law. State v. Burns, 114 Wash.2d 314, 317, 788 P.2d 531 (1990).

Here, as the trial court concluded, Flake's objective purposes for the two crimes were different. When he committed the hit and run, Flake objectively intended to avoid responsibility for the collision by leaving the scene. ⁵ That intention has no relation to the crime of vehicular assault or any criminal purpose that might be ascribed to it. ⁶ In addition, Flake's commission of the hit and run did not further the vehicular assault because the assault was already completed when Flake fled the scene. ⁷ Also, the two crimes were not part of a scheme or plan (see Lewis, 115 Wash.2d at 302, 797 P.2d 1141). Finally, Flake violated RCW 46.52.020 after the vehicular...