State v. Lessley

• Decision Date: 09 April 1992
• Docket Number: No. 57845-1,57845-1
• Citation: 118 Wn.2d 773,827 P.2d 996
• Parties: The STATE of Washington, Respondent, v. Dallas Lyn LESSLEY, Petitioner.
• Court: Washington Supreme Court

Page 773

118 Wn.2d 773

827 P.2d 996

The STATE of Washington, Respondent, v. Dallas Lyn LESSLEY, Petitioner.

No. 57845-1.

Supreme Court of Washington En Banc.

April 9, 1992.

Washington Appellate Defender Ass'n, Eric Broman, Seattle, for petitioner.

Norm Maleng, King County Prosecutor, Theresa Fricke, Sr. Pros. Atty., Michele Shaw, Deputy, Seattle, for respondent.

DOLLIVER, Justice.

Defendant Dallas Lessley challenges a Court of Appeals decision affirming the calculation of his offender score and sentence. He argues two of his offenses encompassed the same criminal conduct, and should therefore have been treated as one crime at sentencing. Additionally, Lessley asks this court to address the interaction between the burglary antimerger statute and the "[s]ame criminal conduct" provision of the Sentencing Reform Act of 1981 (SRA) (RCW 9.94A.400(1)(a)). Lessley contends once multiple counts have been found to encompass the same criminal conduct, a trial court cannot, by applying the burglary antimerger statute, count those crimes separately when calculating an offender score.

On the night of July 26, 1988, George and Janette Thomas, along with their daughter, Dorothy Olson, were asleep in the Thomas's Seattle home. Shortly before midnight, they were awakened by the sound of someone pounding on the front door. When Mr. Thomas investigated, he discovered Dallas Lessley, his daughter's ex-boyfriend, outside the door. Mr. Thomas asked him to leave, but Lessley continued to bang on the door and finally broke it down. He burst into the house, brandishing a .22 caliber revolver, and demanded to see Ms. Olson.

As Mr. Thomas slipped out of the house to call the police, the defendant ordered Ms. Olson and Mrs. Thomas into Ms. Olson's car. He told Ms. Olson to drive, and forced Mrs. Thomas to accompany them, threatening to shoot her if she refused.

The defendant instructed Ms. Olson to drive to a house in Maple Valley. When they arrived, Lessley ordered Mrs. Thomas out of the car at gunpoint. He then drove toward North Bend, stopped the car, and assaulted Ms. Olson, also threatening to shoot her.

The defendant and Ms. Olson then picked up Mrs. Thomas at the Maple Valley house and returned her home. Lessley, however, left with Ms. Olson for another house in White Center, where police shortly arrested him.

On October 14, 1988, Lessley pleaded guilty to four counts: count 1, burglary in the first degree (deadly weapon); count 2, kidnapping in the second degree (for the abduction of Mrs. Thomas); count 3, kidnapping in the first degree (for the abduction of Ms. Olson with intent to facilitate an assault); and count 4, intimidating a witness.

At sentencing, Lessley argued counts 1 and 3--the burglary and the first degree kidnapping--encompassed the same criminal conduct because he entered the Thomas home intending to take Ms. Olson away with him. Therefore, he contended, the two crimes should be counted as one in calculating his offender score and sentence. The trial court disagreed, finding the burglary was completed when Lessley broke in and assaulted the Thomases and Ms. Olson, and the kidnappings were separate crimes. The court therefore concluded the offenses did not encompass the same criminal conduct and counted each crime separately in calculating Lessley's offender score. The court's calculation resulted in a presumptive sentence range for the first degree kidnapping of 149-198 months (as opposed to 108-144 months, had the court accepted Lessley's argument). The court imposed 159 months for the first degree kidnapping, along with 97 months for the burglary, 82 months for the second degree kidnapping, and 56 months for the intimidating charge, all to run concurrently.

The Court of Appeals affirmed. Judge Forrest's lead opinion reasoned the burglary antimerger statute allows a sentencing judge discretion to punish, separately, a crime committed during a burglary regardless of whether it and the burglary encompassed the same criminal conduct. State v. Lessley, 59 Wash.App 461, 464-65, 798 P.2d 302 (1990). Judges Baker and Grosse concurred in the result but rejected the burglary antimerger rationale. They simply found Lessley's crimes did not encompass the same criminal conduct, so it was correct to count them separately in calculating his offender score. Lessley, at 467-69, 798 P.2d 302 (Baker, J., concurring).

We affirm the trial court and Court of Appeals, which correctly found Lessley's convictions for first degree burglary and first degree kidnapping did not encompass the same criminal conduct.

I

RCW 9.94A.400(1)(a), at issue in this case, provides:

[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....

In 1987, the Legislature amended the statute, adding the following:

"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.

See Laws of 1987, ch. 456, § 5, p. 1980.

In State v. Collicott (Collicott II), 118 Wash.2d 649, 667-669, 827 P.2d 263 (1992), we reaffirmed the test, first advanced in State v. Dunaway, 109 Wash.2d 207, 743 P.2d 1237 (1987), which focuses on the extent to which a defendant's criminal intent, as objectively viewed, changed from one crime to the next. Under that test, if one crime furthered another, and if the time and place of the crimes remained the same, then the defendant's criminal purpose or intent did not change and the offenses encompass the same criminal conduct. See Dunaway, 109 Wash.2d at 215; Collicott II, 118 Wash.2d at 667-669, 827 P.2d 274-275. We have also held crimes affecting more than one victim cannot encompass the same criminal conduct. Dunaway, 109 Wash.2d at 215, 743 P.2d 1237.

In both Dunaway and Collicott, we declined to apply the 1987 statutory amendment because the criminal conduct at issue preceded the amendment's effective date. However, the Dunaway test, reaffirmed in Collicott II, is entirely consistent with the statutory test set out in the 1987 amendment to the "[s]ame criminal conduct" provision. Taken together, RCW 9.94A.400(1)(a) and Dunaway require three elements: the same objective criminal intent (which can be measured by determining whether one crime furthered another), the same time and place, and the same victim. If any one element is missing, multiple offenses cannot be said to encompass the same criminal conduct, and they must be counted separately in calculating the offender score. See Note, The "Same Criminal Conduct" Exception of the Washington Sentencing Reform Act: Making the Punishment Fit the Crimes--State v. Collicott, 112 Wash.2d 399, 771 P.2d 1137 (1989), 65 Wash.L.Rev. 397, 402-03 (1990).

In this case, the objective intent of Lessley's burglary was completed when he broke into the Thomas residence armed with a deadly weapon. The concurring opinion ascertained Lessley's objective intent as follows:

Crimes which he objectively intended to commit [in the Thomas residence] included the property damage caused when he broke in, the assault against Mr. Thomas, and the assaults against Mrs. Thomas and his former girl friend, Dorothy Olson. His subjective intent is irrelevant, and we would only be speculating to assume that that subjective intent was to kidnap and [assault] his former girl friend. He may initially only have intended to confront her.

(Footnote omitted; italics ours.) Lessley, 59 Wash.App. at 468-69, 798 P.2d 302 (Baker, J., concurring). Objectively viewed, then, Lessley's criminal intent changed when he moved from the burglary to the kidnapping; the former did not further the latter. Under the Dunaway test, the burglary and kidnapping are not the same criminal conduct because the intent was not the same for both crimes.

Additionally, the "same time and place" element is unmet in this case. The burglary occurred in Seattle, in the Thomas's home, while the first degree kidnapping was carried out over several hours' time in Seattle, Maple Valley, North Bend, and White Center. The burglary and the kidnapping were not confined to the same time and place.

Finally, in this case, the burglary and the first degree kidnapping claimed more than one victim. The defendant urges us to accept the argument that Ms. Olson was the "central" victim, and therefore, even though her parents were involved, the multiple offenses can be found to encompass the same criminal conduct. We reject the central victim concept advanced here by defendant and in previous cases. See State v. Collicott (Collicott I), 112 Wash.2d 399, 409, 771 P.2d 1137 (1989). The current version of RCW 9.94A.400(1)(a) mandates multiple crimes affecting multiple victims are not to be considered the same criminal conduct. Ms. Olson was a single victim in the kidnapping, but the burglary victimized Mr. and Mrs. Thomas as well. They, too, were asleep in their home when...