IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE
STATE OF WASHINGTON , Respondent ,

v. JAMES RAY HOUSE, JR. , Appellant

. ) ) ) ) ) ) ) ) ) No. 39161

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PUBLISHED OPINION

F EARING , J.

— We struggle once again to make se nse out of the concept s of “same criminal conduct” and “same criminal intent” as expressed in R CW 9.94A.589(1)(a) and

as interpreted by the Washington Supreme Court. James House pled guilty to first degree burglary, indecent liberties, second degree assau lt, and unlawful imprisonment. House committed a ll offenses against his former girlfriend and mother of his children during the early morning hours of September 17, 2020. At sentencing, the trial court ruled that the burglary and assault convictions cons tituted the same criminal conduct for purposes of calculating House’s offender score. On appeal, House contends the sentencing court should have also adjudged the indecent liberties and unlawful imprisonment offenses as the same criminal conduct as the as sault and burglary. He further contends the trial court failed to determine whether a n earlier conviction for harassment was the same course of 

### FILED AUGUST 1 5 , 2024 In the Office of the Clerk of Court WA State Court of Appeals, Division IIINo. 39161

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2 conduct as a residential burglary committed on the same date and sentenced at the same time.
FACTS
James Hou se incurred convictions relevant to this appeal before committing his crimes against his girlfriend on September 17, 2020. The plea agreement signed by
James House , in the current prosecution , listed the following earlier convictions:

Clerk’s Papers ( C P ) at 124

- 25. The convictions for residential burglary and harassment

on January 11, 1995 bear particular importance in this appeal.
Th is appeal still focuses on the crimes committed in September 2020. Although the only issues on appeal concern sentenc ing, w e outline the underlying facts behind the September 2020 crimes in order to analyze James House’s challenge to his offender

score. Under House’s theory of the law, the underlying facts assist in determining same criminal conduct.No. 39161

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3 The prosecution against James House arose from his relationship with his girlfriend C.M. C.M. was 19 years old , in 2013, w hen she met James House, then 47 years old. The couple, who never married, begot three children during their seven - year association. In August 20 20, James House and C.M. separated, at which time House moved from the family residence. On an unidentified day d uring the first week of September 2020, House returned to the home and delivered C.M. $100. During this visit, House repeatedly asked for sex , which entreaties C.M. declined. House grabbed C.M.’s pants, forced her down , and engaged her in oral sex without her consent. On the evening of September 16, 2020, C.M. was home with the children. House
sent C.M. texts expressing his intent to journe y to the home to give her money. C.M. responded that he was not welcome and not to come. C.M. disclosed she was expecting a man to visit that night. House announced he planned to com e anyway. On September 16, C.M., a s a result of th e earlier sexual as sault, messaged her
current boyfriend, Kerry Kinnon , that House inten ded to visit the home uninvited. She also attempted to contact her brother to ask that he come to the home to protect her. We assume that C.M. failed to reach her brother, but the recor d does not confirm such. When House had not appeared by 10 p.m., C.M. retired to bed in her room as her children slept on living room couches.No. 39161

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4 James House entered the residence at 1:37 a.m. , on September 17, through use of a key he copied without C.M.’s knowledge. C.M. awoke to House , armed with a knife, crying inside her bedroom

. House protested his love for C.M. and expressed jealousy. House threatened to kill any m a n, with whom she socialized. James House walked with C.M. to the living room , wher e the two spoke. We assume the children continued to sleep in the living room. C.M. told House to leave multiple times

. Hou se enveloped C.M. in a chokehold and dragged her to the bedroom

. The choke blocked C.M.’s airway such that she could not breath e
. C.M. lost vision . She went in and out of consciousness several times during the strangulation . C.M.’s tongue protrud ed from her mouth. She bit on the tongue so hard, she thought she might have bitten it off, but her mouth refused to respond to an inte rnal command to stop. C.M. lost control of her bowels and defecated. C.M. estimates House strangled her for ten minutes. She concluded she would perish.
C.M. finally could communicate to James House that she had defecated and asked him to release her so she could clean herself. House uttered that he did not care , and he resumed the choking, this time for two minutes. House tearfully commented to C.M. that he choked her because of his love for her. James House eventually released C.M. , and she enter ed the bathroom to wash

. From the restroom, C.M. saw House remove and unsheathe a large, fixed

- blade knife.
C.M. , from the bathroom, inquired from House of his intentions. A sobbing HouseNo. 39161

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5 announced that he had come to the home to kill her , but he had no w decided not to do so.
C.M. believed th at House would kill her, and she be gged for her life. She told House he could not kill the mother of his children. House responded with the familiar refrain that , if he could not have her, nobody could.
James Ho use directed C.M. to exit the bathroom and lie on the bed. C.M. complied and asked House to remove his coat and inter the knife. House deposited the knife in his coat pocket and shed his coat. He perform ed oral sex on C.M. without her
consent. After th irty seconds, a nervous and sweating House stood and announced that he “could not do it.” CP at 159. House then penetrated C.M.’s vagina with a sexual device and without her consent

. C.M., in an endeavor to end the death threats, told House to engage he r in sex ual intercourse

. House declined. At C.M.’s suggest ion, the two entered the bedroom closet and smoked cigarettes.
A fter smoking, C.M. returned to the bathroom to finish cleansing herself. C.M. heard her cell phone vibrating in the bedroom, whic h sound represented an incoming call. Earlier on the morning of September 17, C.M.’s male friend, Kerry Kinnon , had retrieved C.M.’s text message that James House intended to come to her apartment. Kinnon called
911 . Kinnon called C.M.’s phone eight tim es between 2:19 and 2:40 a.m. C.M. also heard a key at the front door. C.M. saw that James House also heard the noise so she shut and locked the bathroom door. Unbeknownst to C.M. and House, Kerry Kinnon , attempted to enter the residence. House crashe d the bathroom door and , whileNo. 39161

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6 holding a knife, rushed toward C.M. C.M. yelled: “ ‘ James, don’t kill me! ’ ” hoping the person at the front door, who she believed was Kinnon, would hear. CP at 160

. House stood behind C.M. , restrained C.M. with one hand, he ld the knife in the other hand at her waist , and warned her not to “ ‘ say shit

. ’ ” CP at 160.
James Hous e walked C.M. to the front door and looked through the peephole

. House saw no one outside. C.M. donned boxer shorts that she retrieved from the nearb y laundry room. House walked C.M. through the children’s bedroom . He lit a lighter and gazed through the room for anyone hiding . He remarked that people were coming for
him

. House added that he faced prison for attempted murder and kidnapping. House d eclared: “ ‘ Even if I don’t kill you, I’m still going to prison. ’ ” CP at 160.
C.M. once again attempted to calm James House, and she suggested the two l ay on the bed

. House said no and expressed again a desire for sex. House performed oral sex a second time on C.M. without her permission. H e ceased the activity and asked C.M. if she w anted him to leave or have sex. House unexpectedly announced he would leave. C.M., h oping to hasten House’s exit, awoke the children to tell him goodbye

. House then ref used to leave. C.M. directed House to return to the bedroom and lie on the bed.
C.M. pivoted to the bedroom and reclined on the bed. James House followed and
sat on the couch next to the bed. House rested his hand that gripped the knife near C.M. She asked why he placed the knife n ear her. House explained : “ ‘ I’m telling you rightNo. 39161

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7 now if the cops come, I’m going to stab you in the eyes and kill you. ’ ” CP at 160

. C.M. cried and again pleaded for her life . She insisted that no police were coming.
M inutes later, sounds emanated from the front door. The door opened and law enforcement officers yelled: “ ‘ Spokane Police! ’ ” CP at 160

. James House reflexively moved the knife toward C.M.’s face. C .M. lifted her left arm up to block House’s forearm

. C. M. suffered multiple sta b wounds to her face and hands. House stopped the attack when police entered the bedroom. Multiple Spokane police officers had arrived at C.M.’s apartment and forcibly entered the home. O fficers heard C.M. frantically screaming from a back bedroom. Police found James House on top of C.M. on the bed. Police separa ted House from C.M.
C. M . spoke in a whisper as she complained of throat pain. C.M.’s tongue suffered deep bruises along the left side of her tongue. To repeat, C.M. noted that James House entered her home at 1:37 a.m. Reports record that someone notified emergency dispatch at 2:19 a.m. , and law enforcement officers entered the home at 2:24 a.m.
PROCEDURE The State of Washington charged James House with first degr ee burglary, first degree kidnapping with s exual motivation, two counts of second degree rape, two counts of second degree assault , and two counts of harassment. The State alleged that House committed all offenses again st an intimate partner. The State a dded that House wasNo. 39161

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8 armed with a deadly weapon for purposes of sentencing enhancements attended to the burglary charge and one assault charge. When alleging, in the charging information, that James House committed the crime of burglary, the State asserte d that House entered C.M.’s home with the intent to commit a crime against a person or property, but the information did not identify th e intended crime. Once inside the residence, according to the information, House assaulted
C.M. The State alleged Hous e committed one count of second degree assault by strangulation and the second count by use of a knife, a deadly weapon.
A t the beginning of trial, the parties reached a plea deal, under which James House would plead guilty to the one count of first degr ee burglary predicated on the assault committed inside the home . The State would reduce the two rape charges to one count of indecent liberties, to which House would plead guilty

. House would plead guilty to one count of second degree assault , while the State would dismiss the second charge. The State would reduce the kidnapping charge to one count of unl awful imprisonment, to which House would plead guilty, and the State would dismiss the harassment charges. Each charge would carr y a domestic violence appellation. During the plea hearing, James House, through counsel, commented that some of the crimes, to which House pled guilty, might entail the same criminal conduct for purposes of sentencing

. Defense c ounsel noted that the State , however, did not consider any two of the convictions to form the same criminal conduct. The trial court askedNo. 39161

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9 House if he understood that the State insisted that no two crimes constituted the same criminal conduct and that his offender score totaled nine, although the cou rt would later perform its own scoring. House worried about and asked the court if he could receive a life sentence. The trial court responded that House would not receive a life sentence, but that the court might sentence him based on an offender score of nine. Based on James House’s plea, the trial court entered a judgment of convictions against James House for first degree burglary, indecent liberties, second degree assault, and unlawful imprisonment. The court designated each crime as entailing dom estic violence. The trial court sentenced James House at a later date. During the sentencing hearing, t he State’s counsel remarked that House would argue same criminal conduct as to some of the current convictions. The State conceded that the court sho uld score the first degree burglary and second degree assault as one for purposes of the offender score because the assault constituted the predicate crime for the first degree burglary. The State maintained that the only two convictions to form the same criminal conduct were the burglary and assault, such that the convictions for indecent liberties and unlawful imprisonment should be scored separately. As to the first degree burglary conviction, which carried the highest penalty, the court , according to the State, should calculate the offender score at nine. The State did not identify how it arrived at the score of nine.No. 39161

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10 During the sentencing hearing, James House, through counsel, argued for an offender score lower than nine. House did not offer a pa rticular score. But he noted that he could not have committed the crimes of indecent liberties and assault without first committing burglary and unlawful imprisonment. House conceded that, because of a break in time between the assault and indecent liber ties, the two convictions might be scored separately. After argument by both counsel, the sentencing court resolved to score the burglary and assault as the same criminal conduct because the assault was the predicate crime for the burglary. The superior court determined to score the unlawful imprisonment and indecent liberties convictions separately from one another and separately from the burglary and assault . The court asked if, with its ruling, the offender score remained at nine. The State answered in the affirmative. The State added that, because of the addition of a point for a domestic violence offense and another point for a violent offense, the offender score totaled eleven. The record contains no written calculation by the State as to how it arrived at a score of eleven or nine plus. The superior court sentenced James House to 116 months based on an offender score of nine. When arriving at the score, the court added one point based on the convictions i n January 19 95. The record does not d isclose how the superior court arrived at the offender score.No. 39161

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11 LAW AND ANALYSIS On appeal, James House faults the sentencing court for failing to score the two 1996 convictions , for crimes committed in 1995, as one point because the crimes constituted t he same criminal conduct and for failing to score more than two of his current convictions as the same criminal conduct. We address the two arguments separately. 1996 Convictions In 1996, the State convicted James House with burglary and harassment for

co nduct occurring on January 11, 1995. In this appeal, House assigns error to the sentencing court’s failure to consider the two 1996 convictions as constituting the same criminal conduct such that the two convictions only count as one for his offender scor e. In response, the State argue s that , although the sentencing court assigned two points to the 1996 convictions, it only did so based on the burglary conviction. E ven if the prior offenses of burglary and harassment formed the “same criminal conduct , ” t he harassment conviction washed out because of the passage of time and the court assigned no score to the harassment conviction. In short, a ccording to the State, House bases his argument on erroneous facts. In his reply brief , James House conceded the State’s position , but for a wrong

reason
. House erroneously wrote that the sentencing court did not consider either of his 1996 convictions in the offender score. But House again errs on the facts. TheNo. 39161

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12 sentencing court scored the 1996 convictions as two but only because of the serious nature of the burglary conviction. According to the State, the passage of time wiped out the harassment and only the harassment conviction. The harassment conviction carried a quicker wash out period than the burglary con viction. The State once again argues t hat scoring the harassment conviction as the same criminal conduct as the burglary conviction lack s importance since the court never considered the harassment conviction in the score. We agree with the State. RCW 9 .94A.525(2) establishes the rules for determining when an earlier offense can no longer be counted in the offender score. Practitioners and court decisions label this phenomenon a “ wash out. ” With some exceptions, 

### c lass B prior felony convictions are not included in the offender score if, since the last date of release from confinement, the offender had spent ten consecutive years in the community without committing any crime that subsequently results in a conviction. RCW 9.94A.525(2) (b). In turn, with some exceptions, class C prior felony convictions

are not included in the offender score if, since the last date of release from confinement , the offender had spent five consecutive years in the community without committing any crime that subsequently res ults in a conviction. Residential burglary constitutes a c lass B felony. RCW 9A.52.025. Harassment is a c lass C felony. RCW 9A.46.020. Before his July 17, 2013 sentencing for a domestic violence assault committed on April 18, 2013, James House had sp ent seven years in the community withoutNo. 39161

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13 committing a new offense leading to conviction

. Thus, the 1996 harassment conviction washe d out. House has never spent more than ten years in the community after his release from his 1996 residential burglary conv iction. Therefore, the burglary conviction did not wash out. Because the current sentencing court convicted House with the serious crime of first degree burglary, the court needed to count House’s 1996 conviction for residential burglary as two , not one, points. RCW 9.94A.525( 10). Current Convictions offender scores To repea t, the State convicted James House with first degree burglary, indecent liberties, second degree assault, and unlawful imprisonment. The s entencing court scored his convictions for burglary and assault as being the same criminal conduct. All four convictions carried a domestic violence appellation, which can double the score for some earlier and current convictions. On appeal, James House argues that the sentencing court should h ave scored other current crimes as the same criminal conduct. He first contends that both the crime s of unlawful imprisonment and indecent liberties constituted the same criminal conduct as his burglary. House next contends that the crimes of assault and indecent liberties respectively formed the same criminal conduct as the unlawful imprisonment conviction

. He emphasizes that he could not have committed either indecent liberties or unlawful imprisonment without first committing burglary. He entered C.M .’s residence withoutNo. 39161

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14 permission in order to commit unlawful imprisonment and indecent liberties, thereby also perpetrating burglary. House also argues that the crimes of assault and indecent liberties could not have been committed without having committe d unlawful imprisonment. His restraint of C.M. enabled him to assault C.M. and perform oral sex on her. The same overall purpose shadowed all three crimes. House, however, does not isolate or specify that overall purpose. Under James House’s analysis, all four current convictions collapse together. In turn, he argues that, with this collapse, his offender score for the most serious offense of first degree burglary i s eight. We calculate the offender score to be seven, however, assuming all four crime s to constitute the same criminal conduct. In a letter to counsel, we asked each party to identify how he or it arrived at House’s offender score. In his
response, House did not i dentify a score for his earlier convictions

. He also has not designate d a n offender score on the assumption that no more crimes are adjudged to be the same criminal conduct. Because of the minutiae involved in any calculation and its unimportance to this appeal, we do not outline our calculation. The State , like us, scores J ames House’s earlier convictions as seven points. In turn, the State scores James House’s current convictions as totaling three points. According to the State, first degree burglary offense , having the most serious level of the
current offenses, should s erve as the controlling conviction for purposes of scoring. RCW 9.94A.515, Serious Level VII. Because a domestic violence appellation attached toNo. 39161

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15 the first degree burglary conviction , other domestic violence offenses listed in RCW 9.94A.525(21)(a) count as two points. The statutory subsection lists unlawful imprisonment, but not indecent liberties. Thus, the unlawful imprisonment current conviction bears a score of two, and the indecent liberties carries a score of one, for a total of three points. Whe n adding the score of seven from the earlier convictions, House’s score, according to the State , is ten. We agree with the State that House’s offender score reaches ten if only the current burglary and assault convictions are scored as same criminal condu ct. House does not argue to the contrary. Our decision requires the court to answer four discrete questions. First, do James
House’s convictions for first degree burglary and indecent liberties constitute the same criminal conduct? Second, do House’s convictions for first degree burglary and unlawful imprisonment constitute same criminal conduct? Third, do the convictions for indecent liberties and unlawful imprisonment constitute same criminal conduct? Fourth, do the convictions for second degree as sault and unlawful imprisonment constitute same criminal conduct? If we answered all questions or at least three of the questions in the affirmative, all crimes would collapse into one current crime. The State argues that James House’ s offender score will remain nine plus unless this court scores both unlawful imprisonment and indecent liberties as being the same criminal conduct as first degree burglary. In other words, unless we agree with House that all four convictions fold into the same criminal conduct, House receives no relief.No. 39161

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16 The sentencing grid only acknowledges an offender score as high as nine, and the State does not seek an exceptional sentence based on some convictions going unpunished. RCW 9.94A.510; S tate v. France , 176 Wn. App. 463, 468, 308 P.3d 812 (2013)

. Assuming we accepted House’s erroneous calculation of his earlier convictions being a score of eight, we would agree with the State. But with the correct calculation of prior crimes being seven, House’s offender score could now be eight. We need not resolve this discrepancy, however, since we adjudge no other current crimes to be same criminal conduct. same criminal misconduct We now undertake the task of evaluating whether more of James House’s current convictions should be s cored as enveloping same criminal conduct. When sentencing an offender for one or more felonies, the trial court must calculate the defendant ’ s offender score, which score influences the offender’s standard sentence range. The sentencing court computes a n offender ’ s score based on the number of current and earlier convictions. RCW 9.94A.525, .589(1)(a); State v. Aldana Graciano , 176 Wn.2d 531,
535

- 36, 295 P.3d 219 (2013). If the court finds that some of the current offenses encompass the same criminal c onduct , the sentencing court must count those current offenses as one crime for purposes of the score

. RCW 9.94A.589(1)(a); State v. Aldana
Graciano , 176 Wn.2d 531, 536 (2013)

.No. 39161

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17 The same criminal conduct rule provides sentencing courts an important tool to ameliorate the harsh effect of prosecutorial overcharging. State v. Westwood , 2 Wn.3d 157, 169, 534 P.3d 1162 (2023) (Madsen, J. dissenting). Under the rule, crimes, when committed with the same objective intent to further a criminal act against t he s ame victim at the same time sh ould be punished as one crime

. State v. Westwood , 2 Wn.3d 157, 169 (2023) (Madsen, J. dissenting). Without this protection, prosecutors may charge multiple crimes arising from a single incident, each carrying its own punishm ent, and a sentencing judge would be required to impose a sentence for each crime. State v. Westwood , 2 Wn.3d 157, 169

- 70 (2023) (Madsen, J. dissenting). A court may use th is offender score tool even though the Double Jeopardy Clause would not bar two pu nishments. RCW 9.94A.589(1)(a) governs application of the same criminal conduct principle. The statute , enacted in 1987, declares: 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. (Emphasis ad ded

. ) The focal sentence in RCW 9.94A.589(1)(a) directs the sentencing court to concentrate on the offender ’ s criminal intent, the identity of the victim or victims, and the location and timing of the crimes. State v. Aldana Graciano , 176 Wn.2d 531, 536 (2013). The defendant bears the burden of establishing all prongs of the test.
State v. Aldana Graciano , 176 Wn.2d 531 (2013); State v. Vike , 125 Wn.2d 407, 410, 885No. 39161

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18 P.2d 824 (1994); State v. Wright , 183 Wn. App. 719, 733, 334 P.3d 22 (2014). If any ele ment is missing, the sentencing court must count the offenses separately when calculating the offender score. State v. Westwood , Wn.3d 157, 162 (2023); State v. Vike , 125 Wn.2d 407, 410 (1994). Deciding whether crimes involve the same intent, time, plac e, and victim often involves factual determinations

. State v. Aldana Graciano , 176 Wn.2d 531, 536 (2013). Thus, the trial court exercises discretion. State v. Westwood , 2 Wn.3d 157, 162 (2023). Based, in part, on the need to review and weigh facts, this reviewing court will not disturb the sentencing court’s decision unless the sentencing court abuses its discretion or misapplies the law, the latter which by definition is an abuse of discretion. State v. Aldana Graciano , 176 Wn.2d 531, 531 (2013); State v. French , 157 Wn.2d 593, 613, 141 P.3d 54 (2006)

. We construe RCW 9.94A.589(l)(a) narrowly to disallow most assertions of same criminal conduct

. State v. Aldana Graciano , 176 Wn.2d 531, 540 (2013); State v. Palmer , 95 Wn. App. 187, 190

- 91, 975 P.2d 1038 (1999). The default method of calculating an offender score is to treat all current convictions as separate and distinct criminal conduct. State v. Westwood , Wn.3d 157, 16 2 (2023)

. In James House’s appeal, we focus only on the first element of
RC W 9.94A.589(1)(a)’s same criminal conduct test: same criminal intent, a test often labeled as similar intents. The State and James House focus on the element of intent,No. 39161

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19 presumably because only one victim suffered from House’s crimes and he committed the

c rimes at one location within a one

- hour window of time. Neither RCW 9.94A.589(1)(a) or a related statute elucidates what criteria the sentencing court employs when assessing whether two crimes occasion the “ same criminal intent. ” The statute nowhere sta tes that the sentencing court refer s to the intents required by statute to convict the offender of the respective crimes. Nowhere does RCW 9.94A.589(1)(a) o r an accompany ing statute mention employment of the mens rea of a crime. No statute instructs the sentencing court as to evaluating same criminal intent on the offender’s subjective intent or personal goals in perpetuating the crimes or some objective intent discerned by the court. Last calendar year, the Washington Supreme Court , in State v. Westwo od , 2 Wn.3d 157 (2023), issued a seminal decision regarding same criminal intent. Beforehand, sentencing courts faced a bewildering array of case law from the Supreme Court and the Court of Appeals that announce d various abstruse tests of sameness , that

o ccasionally adopt ed conflicting rules of law , and that sporadically prompted inconsistent opinions. In State v. Westwood , the Supreme Court , despite four of its members dissenting, pro tested that its jurisprudence on similar intents had always been settle d and evident

. In State v. Westwood , Dahndre Westwood entered A.B.’s house a t 4:30 a.m. A.B. saw Westwood standing in her hallway and holding a knife in his hand. A.B. yelled atNo. 39161

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20 him to leave, but Westwood pushed A.B. into the bed room. Westwood ordered her to undress and threatened to kill her if she did not cooperate. A.B. screamed for help and pleaded for her life

. A.B. c lawed at Westwood and knocked the knife out of his hand. Westwood choked and suffocated A.B. to muffle her screams for help and h it her repeatedly on the head. During the struggle, Westwood nicked A.B. with the knife, leaving a scar on her cheek. Westwood stopped his assault after car headlights passed and shone in a window

. As he exited A.B.’s residence, Westwood threatened A.B. that , if she told anyone about the assault , he would kill her.
A jury convicted Dahndre Westwood of attempted rape in the first degree, assault in the first degree, and burglary in the first degree. At sentencing, Westwood argued , while relying on S t ate v. Dunaway , 109 Wn.2d 207, 743 P.2d 1237 (1987), that all three convictions encompassed the same criminal conduct for offender scoring purposes. In response, t he State asked the sentencing court to apply a test announced by the Supreme Court in State v. Chenoweth , 185 Wn.2d 218, 370 P.3d 6 (2016) and to score each crime separately

. The trial court followed Chenoweth and determined that the three convictions did not constitute the same criminal conduct because the legislature furthered different
purpos es when respectively outlawing assault, burglary, and rape. We will eventually discuss the ruling of the state Supreme Court in State v. Westwood , which ruling upheld the sentencing court and ruled Dahndre Westwood’s crime s to entail separate intents. I n an attempt to better understand the WashingtonNo. 39161

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21 Supreme Court’s decision, however, we detour and first review the high court’s decisions
in S tate v. Dunaway , 109 Wn.2d 207 (1987) and State v. Chenoweth , 185 Wn.2d 218 (2016) and our own decision in State v

. Westwood , which the Supreme Court reversed.
State v. Westwood , 20 Wn. App. 2d 582, 500 P.3d 182 (2021). The Washington Supreme Court decided State v. Dunaway in 1987 before the legislature adopted the relevant language found in RCW 9.94A.589(1)(a). Ne vertheless, the Supreme Court has since written that the legislature, when fashion ing the language, adopted the test formulated in Dunaway

. In Dunaway , the Supreme Court determined that robbery and first degree kidnapping constituted the same criminal con duct because the accused committed the kidnapping in order to rob the victims. At the Alderwood Mall, James Dunaway entered a car occupied by two women. He displayed a gun and directed the driver to drive to Seattle. In the meantime, at Dunaway’s direc tion, each lady handed him all cash on her person. When the trio reached Seattle’s University District, Dunaway demanded the passenger to enter Rainier Bank and withdraw money for him. The lady entered the bank and did not return. At Dunaway’s command, the driver move d to the passenger seat, and Dunaway drove the car elsewhere in Seattle, where he exited the car. When ruling that James Dunaway bore the same criminal intents when committing the separate crimes of first degree kidnaping and robbery, th e Supreme Court highlighted that Dun away’s intent to commit robbery enabled the State to raise the charge ofNo. 39161

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22 kidnapping from second degree to first degree. Robbery constituted the objective behind both crimes. First degree kidnapping entailed intentional ly abducting someone with the intent to facilitate the commission of another felony. First degree kidnapping entailed a mens rea beyond robbery since the former crime included the intent to abduct someone, but this difference did not influence the Supreme Court.
In State v. Chenoweth , 185 Wn.2d 218 (2016) , the State convicted Chad Chenoweth with rape of a child in the third degree and incest

. The victim was Chenoweth’s daughter. The opinion s pares the reader from a recitation of the facts behind the pr osecution. T he Evergreen State high court ruled that incest and child rape did not form the same criminal mis conduct despite each crime being based on the identical act. RCW 9A.44.079 governs rape of a child in the third degree and occurs when: the pers on has sexual intercourse with another who is at least fourteen years old but less than sixteen years old and not married to the perpetrator and the perpetrator is at least forty

- eight months older than the victim. RCW 9A.64.020 controls incest and occu rs when a person engages in sexual intercourse with a person whom he or she knows to be related to him or her

. . . as an ancestor, descendant, brother, or sister. Neither of the statutes demands any particular mens rea. The State does not need to
pro ve beyond a reasonable doubt that the accused intended any action or result only that he committed specific actions . Still, t he Supreme Court reasoned that the intent toNo. 39161

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23 engage in sex with a child differed from the intent to have sexual intercourse with a family member. Thus, the Supreme Court scored Chad Chenoweth’s convictions separately. The Supreme Court, in State v. Chenoweth , impliedly applied a double jeopardy analysis by proffering that the legislature intended to punish the crimes of rape and i ncest as separate offense s
. Under double jeopardy jurisprudence, the court reviews the two statutes creating separate crimes and assesses whether the legislature intended to separately punish the conduct forming the crimes if the same conduct violates eac h
statute

. State v. Freeman , 153 Wn.2d 765, 771

- 72, 108 P.3d 753 (2005). When holding that the two crimes represented distinct intents, the Supreme Court in Chenoweth emphasized that t he legislature placed the crimes of rape and incest in two discrete ch apters of the criminal code. RCW 9A.44 controls sexual offenses. RCW 9A.64 controls family offenses. The former statute attacks the evil of sex with a child. The latter statute outlaws sex with a family member. Contrary to the reasoning of the Supreme Court in State v. Chenoweth , RCW 9.94A.589(1)(a) does not direct the sentencing court to consider the legislature’s desire to punish crimes separately when analyzing same criminal intent. Otherwise, a sentencing
court m ight never hold that two or more cr imes constitute same criminal conduct. Nor does the statute suggest indexing of crimes in the criminal code holds any importance.No. 39161

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24 We note that State v. Chenoweth , like State v. Westwood , is also a 5 to 4 d ecision. The minority observed that Chad Chen oweth’s objective criminal purpose for both crimes was sexual intercourse with his daughter. T he majority and the minority both avoided an analysis of the mens rea required under the respective statutes . Their disagreement centered around whether to focu s broadly or narrowly on the accused’s purpose of committing the crime. Although Chenoweth wanted to have sex with his daughter, the majority tacitly deemed that this intent could be separated into two facets: the desire for sexual gratification with a ch ild and the longing for carnal pleasure with a family member. The majority never asked whether Chenoweth was motivated for sex with his daughter solely because she was his daughter or solely because she was a family member. The majority never asked if Ch enoweth engaged in sex with his daughter solely because she was readily available or because, as her father, Chenoweth could coerce her or force her into sexual intercourse. This lack of inquiry result ed in part from the firm principle that the sentencing court assesses an objective intent in committing the crime, not the accused’s subjective intent. A reasonable lower court and legal practitioner would deem the Dunaway test to differ from the Chenoweth analysis and that in some cases the different tes ts would result in different outcomes. The Chenoweth test emphasized the evil sought to be eradicated by the legislature. Chenoweth ignored an examination of statutory mens rea. The Dunaway test highlighted whether one crime enabled the commission of a second crimeNo. 39161

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25 and whether the two crimes had an overlapping statutory mens rea. Nevertheless, the Supreme Court, in State v. Westwood , insisted that the se two earlier decisions established the same test for discerning same criminal intent.
We return to State v. Westwood with a discussion first of the Court of Appeals’ decision. This court remanded the sentencing of Dahndre Westwood to the superior court to apply the same criminal conduct test purportedly emanating from S tate v. Dunaway , not from State v. Chenoweth

. State v. Westwood , 20 Wn. App. 2d 582, 586 (2021). We concluded that the Chenoweth test only applied to convictions for incest and rape. We thought that Dunaway held that a court assesses the intent component of the same criminal conduct a nalysis not by the statutory mens rea of the offense s but by whether the defendant’s criminal intent, viewed objectively, changed from one crime to the next. Intent, in this context, comprises the offender’s objective criminal purpose in committing the cr ime, such as stealing money or killing another. The trial court may employ various ways in determining objective criminal purpose, which methods include ascertaining the extent of the interrelationship between the two crimes, evaluating the change in the criminal objective from one crime to another, asking whether one crime furthered the other , or questioning whether the offenses were part of a plan or scheme. We recognized that d ifferent finders of fact might reach different conclusions. This court, in State v. Westwood , noted that the Supreme Court decided State v. Chenoweth without any mention of State v. Dunaway

. We thought that, in the laterNo. 39161

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26 decisions of State v. Bobenhouse , 166 Wn.2d 881, 214 P.3d 907 (2009) and State v. Calle , 125 Wn.2d 769, 888 P.2d 155 (1995), the Supreme Court limited Chenoweth to the narrow confines of a combination of rape and incest. We held the sentencing court not bound by Chenoweth under the circumstances of Dahndre Westwood’s crimes. We remanded sentencing and directe d the trial court to exercise its discretion in resolving whether, as a factual matter, Westwood’s objective criminal purpose remained the same
from one crime to the next , those crimes being attempted rape, assault, and burglary

. We now parse the Suprem e Court’s decision in State v. Westwood in an endeavor to apply the recent decision to James House’s challenge to his offender score. The Westwood court labeled the same criminal conduct test as “ an objective intent analysis. ” State v. Westwood , 2 Wn.3d 157, 162 (2023). At the beginning of its opinion, the court described the objective intent analysis as looking “a t the statutory criminal intent of each of the offenses .” State v. Westwood , 2 Wn.3d 157 , 162 (2023)

. Therefore, t he sentencing court must l ook to the statutory definition of intent for each of the crimes. State v. Westwood , 2 Wn.3d 157, 163 (2023)

. Th is analysis ignores the defendant’ s subjective intent and decline s to consider whether the defendant maintained a consistent intent throughout the crimes. State v. Westwood , 2 Wn.3d 157 , 162 (2023)

. The analysis disregards whether the offender committed the crimes in a continuous course of conduct. State v. Westwood , 2 Wn.3d 157 , 163 (2023)

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27 A t the beginning of its opinion when writing that the sentencing court looks “a t the statutory criminal intent of each of the offenses ,” the court added: “ and whether the crimes furthered each other.” State v. Westwood , 2 Wn.3d 157 , 162 (2023)

. The court does not explain what the sentencing court does if the criminal intent of the two offenses is identical but neither crime furthered the other. The court later wrote that if the intent of the two crimes is the same, the court must then consider whether the offenses were committed as part of the same sch eme or plan and whether one crime furthered the other, with no substantial change in the nature of the criminal objective. State v. Westwood , 2 Wn.3d 157 , 165 (2023)

. We assume that, when one crime further s another crime, the offender typically
possesse s an underlying goal that motivated the commission of both crimes. But this observation moves the analysis of similar criminal intent away from reviewing the statutory intent or mens rea of the crimes and into the realm of the subjective intent of the off ender. If Washington’s o bjective intent analysis focuses on th e statutory criminal intent of each of the offenses , whether one crime actually furthered another crime should lack importance. We read Westwood ’s initial description of the objective intent analysis as requiring us to identify the statutory mens rea needed to convict the accused of the respective crimes sought to be ruled same criminal conduct. But this test raises many difficult questions. We wonder what to do with strict liability crimes that require no intent orNo. 39161

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28 whether we can compare crimes that punish negligent , reckless , or knowing conduct with one another and with crimes of specific intent. We wonder if o nly crimes that require a specific intent may be the same for purposes of same c riminal conduct

. S ince the jury must find, for purposes of m any convictions, that the accused possessed the subjective intent mentioned in the statute identifying the crime, we wonder
if Westwood ’s professed disregard of subjective intent makes sense. P erhaps, this wonderment led to the Westwood court writing that t he test for same course of conduct

“ is not dependent on the offender’s subjective intent, beyond the mental state required for the commission of the offense.” State v. Westwood , 2 Wn.3d 157, 164 (2023) (quoting State v. Callaway , 42 Wn. App. 420, 424, 711 P.2d 382 (1985))

. After explaining the same criminal intent analysis, the Supreme Court, in State v. Westwood , analyzed the statutory definitions of the crimes for which the jury convicted Dahndre Westwood: attempted rape in the first degree, first degree assault, and first degree burglary. Attempted rape in the first degree requires the intent to commit the crime of rape and taking a substantial step toward first degree rape

. RCW 9A.28.02 0.
F irst degree rape includes forcible sexual intercourse with another person when employing a deadly weapon, kidnapping the victim, inflicting serious injury, or feloniously entering a building. RCW 9A.44.040. First degree assault requires an intent
to inflict great bodily harm and the infliction of that harm

. RCW 9A.36.011. First degree burglary requires an entry into a building without consent and with intent to commit aNo. 39161

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29 crime against a person or property. RCW 9A.52.020. After reviewing the statut ory definitions of the crimes, the Supreme Court concluded that t he legislature intended that the intent necessary to prove all three crimes differ ed . The Supreme Court reversed the Court of Appeals and affirmed the sentencing court’s ruling that the crim es did not involve the same criminal conduct. We note that the assault and the burglary by Westwood raised the attempted rape charge to first degree rape, but this phenomenon was of no consequence. The Supreme Court, also in State v. Westwood , claimed t hat its ruling in State v. Chenoweth followed the ruling in State v. Dunaway . According to Westwood , the Chenoweth court looked at the statutory intent of the crimes of incest and rape of a child and found separate intents. The Westwood court did not ide ntify the two purported different intents of incest and child rape

. The Dunaway court merely cited to the two statutes and did not quote or analyze the statutes. We have already noted that incest and third degree rape of a child require no particular int ent. The Westwood court announced that the sentencing court should decline to consider whether the defendant actually maintained a consistent intent throughout the crimes. This announcement together with other announcements conflict with State v. Dunawa y which held Dunaway’s crimes to be same criminal conduct because he engaged in the kidnapping in order to take money from the women.No. 39161

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30 Four justices, led by Justice Barbara Madsen, dissented in State v. Westwood

. The dissent criticized the majority for c onflat ing the same criminal conduct test with the test for double jeopardy . According to the dissent, the majority, i nstead of providing clarity, reinvent ed the objective intent test by claiming the test focuses on the statutory definitions of the crimes to determine the objective intent. The dissenting opinion painstakingly journeyed through the numerous Supreme Court decisions and showed the error in the majority’s proclamation that the court’s decisions had always focuse d on the language of statutes th at create d the various crimes. The dissent , like the majority, wrote that a sentencing court must apply an objective intent test , but the dissent declared that the test focuses on the extent to which the criminal intent, as objectively viewed, changed fro m one crime to the next, not on the statutory criminal intent, which is the focus of a double jeopardy analysis. The dissent agreed with our decision’s observation that statutory criminal intent of crimes is not objective. Thus, if the correct analysis r elies on the language of the statute, as posited by the Westwood majority, the inquiry, by nature, is one of subjective intent

. In light of State v. Westwood ’s instruction to inspect the statutory criminal intent of each of the offenses , w e review the statutory mens rea for the four respective crimes of James House’s convictions. U nder RCW 9A.52.020, one commits the crime of first degree burglary when:No. 39161

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31 with intent to commit a crime against a person or property therein , he or she enters or remains unla wfully in a building and if, in entering or while in the building or in immediate flight therefrom, the actor or another participant in the crime (a) is armed with a deadly weapon, or (b) assaults any person. (Emphasis added

. ) One commits second degree assault when: he or she, under circumstances not amounting to assault in the first degree: (a) Intentionally assaults another and thereby recklessly inflicts substantial bodily harm; or

. . . . (c) Assaults another with a deadly weapon ; or

. . . . (e) With intent to commit a felony , assaults another; or (f) Knowingly inflicts bodily harm which by design causes such pain or agony as to be the equivalent of that produced by torture; or (g) Assaults another by strangulation or suffocation.
RCW 9A 36.021 (emphasis added). Under the list of alternate means by which to commit second degree assault, an accused could commit the crime with the intent to strike the victim , with the intent to commit any felony , with the knowledge of inflicting bodily i njury but without any specific intent , or by strangulating or suffocating the victim without any specific intent

. Only one of those mens rea aligns with the statutory mens

rea necessary to commit first degree burglary, that being the intent to commit any felony. The State alleged , in the charging information, that James House committed second degree assault by either strangulation or use of a deadly weapon , not with the intent to commit another felony or with any particular specific intent

.No. 39161

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32 RCW 9A.44.10 0, the indecent liberties statute, proscribes, in pertinent part: ( 1) A person is guilty of indecent liberties when he or she knowingly causes another person to have sexual contact with him or her or another: (a) By forcible compulsion; (Emphasis added

. ) T he succinct unlawful imprisonment statute, RCW 9A.40.040, declares: (1) A person is guilty of unlawful imprisonment if he or she knowingly restrains another person. (Emphasis added

. )
We grapple, in James House’s appeal, with applying the objective int ent analysis, at least in its form as announced in State v. Westwood of referencing the statutory criminal intent of each crime. The State concedes on appeal t hat second degree assault and first degree burglary constituted the same criminal conduct becaus e the State employed the assault as the predicate crime for burglary. The assault raised the burglary charge to first degree. But the objective intent analysis does not revolve around whether one crime serves as a predicate crime for the other crime. Th e Supreme Court , in State v. Westwood , held all crimes to be separate despite two of the crimes raising the burglary to first degree burglary. We observe that the statutory mens rea for first degree burglary and second degree assault do not conflate. On e commits first degree burglary by entering the property with the intent to commit any crime, not with the intent to commit a predicate crime or aNo. 39161

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33 particular crime charged by the State. In its charging information, the State did not allege any particular crime that James House intended to perpetrate when he entered C.M.’s residence. Based on the objective intent analysis, as announced in State v. Westwood , the State and the superior court may have erred when determining second

- degree assault and first deg ree burglary to be the same criminal conduct. We assign no fault to either because of the continuing confused nature of the quest to discern same criminal conduct. The Supreme Court issued State v. Westwood after James House’s sentencing. As far as we know, the Supreme Court will also declare us to be wrong. Regardless, n either party on appeal challenges the sentencing court’s consideration of the assault and burglary being the same criminal conduct. When employing the stated objective intent analysis to James House’s assignments of error , we conclude that the crimes of unlawful imprisonment and indecent liberties d id not involve the same criminal conduct as House’s burglary. Also, t he crimes of assault and indecent liberties did not form the same int ent as unlawful imprisonment. The mens rea of unlawful imprisonment is knowingly restraining another, the mens rea of burglary is entering a residence with the intent to commit a crime, the mens rea of second degree assault is various, and the mens rea of indecent liberties is knowingly forcing another into sexual relations.No. 39161

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34 When committing his four crimes, James House may have possessed an overarching goal in killing C.M., terrorizing her, or forcing sex on her. He engaged in one scheme throughout his conduct. But we read State v. Westwood to direct us to ignore House’s subjective desires. James House’s burglarizing C.M.’s home and restraining her enabled him to assault C.M. Also, House’s unlawful entry into the residence and unlawful imprisonment of C.M. permitted him to commit the crime of indecent liberties. We read State v. Westwood , however, to direct us to address whether one crime furthers another crime only after determining that the statutory intents of the crimes are similar. The circumst ances in this appeal mirror the circumstances in State v. Westwood wherein the Supreme Court scored all crimes separately. Dahndre Westwood entered A.B.’s house in the early morning hours without A.B.’s consent. James House entered C.M.’s house without p ermission at 1:37 a.m

. Westwood brandished a knife. House carried a knife. Westwood choked and suffocated A.B. House strangulated C.M. During a struggle, Westwood cut A.B. with the knife, leaving a scar on her cheek. During the excitement of police e ntering the residence, House cut C.M.’s arm and face. Westwood attempted to sexually assault A.B. House successfully forced oral sex on
C.M. A jury convicted Dahndre Westwood of attempted rape in the first degree, assault in the first degree, and burgl ary in the first degree. Despite the events occurring over a limited space in time and despite Westwood likely committing all crimes with the oneNo. 39161

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35 goal of rape, the Supreme Court scored the crimes of burglary, assault, and attempted rape as separate crimes . T he fact that the burglary and assault furthered the attempted rape was of no consequence. Under State v . Dunaway , some of Dahndre Westwood’s crimes might have been scored as one. Also, u nder State v . Dunaway , more of James House’s crimes would proba bly be scored as one. After State v. Westwood , Dunaway is kaput. Based on the teachings of State v. Westwood , we conclude the sentencing court committed no error when calculating James House’s offender score. Assuming any error, that error benefitted H ouse. CONCLUSION We affirm the trial court’s assessment of James House’s offender score and affirm his sentence.

Fearing , J. WE CONCUR:

Lawrence

- Berrey , C. J

.

Staab, J

.