IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

DIVISION THREE

STATE OF WASHINGTON,

Respondent,

v.

MITCHELL EUGENE CRANE,

Appellant.

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No. 38687-2-III

UNPUBLISHED OPINION

COONEY, J. — Following a jury trial, Mitchell Crane was convicted of 29 counts 

of unlawful possession of a firearm, one count of possession of an unlawful firearm, and 

one count of intimidating a witness. He appeals arguing there was insufficient evidence 

to convict him of the 29 counts of unlawful possession of a firearm because the State 

added elements to the “to convict” instructions that it failed to prove. He also posits there 

was insufficient evidence to convict him of intimidation of a witness. Finally, Mr. Crane 

contends his offender was incorrectly calculated. 

We affirm the convictions and remand for resentencing based on a corrected 

offender score. 

BACKGROUND

Mr. Crane lived in rural Finley, Washington. He had previously been convicted of 

a “serious offense” in the state of Washington and was therefore prohibited from owning 

FILED

APRIL 16, 2024

In the Office of the Clerk of Court

WA State Court of Appeals Division III
No. 38687-2-III

State v. Crane

2

firearms. Rep. of Proc. (RP)

1

at 180; RCW 9.41.040(1)(a). In 2020, the Department of 

Fish and Wildlife (Department) began investigating Mr. Crane for poaching deer. In 

February 2020, officers with the Department executed a search warrant at Mr. Crane’s 

residence. During the search, officers found 27 firearms in Mr. Crane’s residence and 

2 firearms in a shop on the property. One of the firearms found in Mr. Crane’s shop was 

a short-barrel shotgun. 

After the search warrant was executed, Mr. Crane drove to Andrew Kienholz’s, 

and his father’s, James Kienholz’s,

2

residence. James and Andrew had earlier spoken to 

the Department regarding Mr. Crane’s alleged poaching, but Andrew had asked that his 

name not be used in the search warrant affidavit. Mr. Crane told James that he wanted to 

speak with Andrew in his car. Andrew met Mr. Crane in his car and testified that Mr. 

Crane was “very, very aggressive.” RP at 185. Andrew stated that Mr. Crane

asked me if I was the one that reported him, and I told him that I was not.

He told me that if we had any problems we could go out in the front yard 

and duke it out right now. Then he asked me again if I was the one that 

turned him in. I told him that I was not, and then he told me that when he 

found out who turned him in, that he was gonna kill them.

RP at 185. 

 

1 Unless otherwise noted, “RP” refers to the consecutively paginated verbatim 

report of proceedings beginning August 3, 2020.

2 Andrew and James Kienholz are referred to by their first names for clarity. 
No. 38687-2-III

State v. Crane

3

Mr. Crane was charged with 29 counts of unlawful possession of a firearm in the 

first degree, one count of possession of an unlawful firearm for possessing the shortbarrel shotgun, and one count of intimidating a witness. A jury trial ensued. At trial, the 

court granted the State’s motion to admit exhibits 1-54. Exhibits 4-6 and 23-49 were 

photos of each of the firearms Mr. Crane was alleged to have unlawfully possessed, along 

with a description consisting of the make, model, and serial number of each, positioned 

above each picture. 

Following submission of the evidence, the court instructed the jury on each count 

of unlawful possession of a firearm similar to instruction 36:

To convict the defendant of the crime of unlawful possession of a 

firearm in the first degree as charged in count 24, each of the following 

elements of the crime must be proved beyond a reasonable doubt:

(1) That on or about February 4, 2020, the defendant knowingly 

owned a firearm or knowingly had a firearm in his possession or control, 

to wit: CVA Hunter Bolt .50 cal. black muzzleloader Serial #61-13-208623-

02;

(2) That the defendant had previously been convicted of a serious 

offense; and

(3) That the ownership or possession or control of the firearm 

occurred in the State of Washington. 

If you find from the evidence that each of these elements has been 

proved beyond a reasonable doubt, then it will be your duty to return a 

verdict of guilty.

On the other hand, if, after weighing all of the evidence, you have a 

reasonable doubt as to any one of these elements, then it will be your duty 

to return a verdict of not guilty.
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State v. Crane

4

Clerk’s Papers (CP) at 59 (emphasis added). With the exception of the make, model, and 

serial number of each firearm differing, the instructions for each count were the same. 

The jury found Mr. Crane guilty of all counts. 

Mr. Crane was sentenced for these offenses and two additional convictions for 

unlawful possession of a firearm from a different case at the same time. At sentencing, 

the parties agreed that all of Mr. Crane’s convictions for unlawful possession of a firearm 

for the guns found in his home were the same criminal conduct and therefore counted as a 

single point in Mr. Crane’s offender score. Likewise, the parties agreed the guns found in 

the shop were the same criminal conduct and counted as 1 point. 

The parties disagreed about whether Mr. Crane’s conviction for possession of an 

unlawful firearm and his conviction for unlawful possession of a firearm, both relating to 

his possession of the short-barrel shotgun, were the same criminal conduct. The State 

argued that the two offenses had different criminal intent and were therefore not the same 

criminal conduct. 

The court accepted the parties’ agreement that the convictions for unlawful 

possession of a firearm for the guns found in the home were the same criminal conduct 

and that the firearms found in the shop were the same criminal conduct. However, the 

court found the convictions for unlawful possession of a firearm and possession of an 

unlawful firearm were not the same criminal conduct and counted the convictions 

separately in Mr. Crane’s offender score. 
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The State did not submit the judgment and sentences for Mr. Crane’s two previous 

convictions from 2015, for second degree assault and felony harassment, but the court 

counted them as 2 additional points in Mr. Crane’s offender score. The court sentenced 

Mr. Crane pursuant to an offender score of 7. Mr. Crane appealed. 

After Mr. Crane’s initial opening brief was filed with this court, we granted the 

State’s motion to supplement the record pursuant to RAP 9.11. Comm’r’s Ruling 

(Apr. 6, 2023). The superior court was ordered to take additional evidence regarding Mr. 

Crane’s 2015 convictions and whether they constituted the same criminal conduct. 

Comm’r’s Ruling at 8 (Apr. 6, 2023). 

The State submitted Mr. Crane’s 2015 statement on plea of guilty and judgment 

and sentence for his assault and harassment convictions. The State conceded that “it 

would be a mistake to say that [Mr. Crane’s 2015 convictions are] not . . . the same 

criminal conduct.” RP (July 18, 2023) at 18. However, the State contended Mr. Crane’s 

argument that the two convictions constituted the same criminal conduct was untimely as 

his convictions for those crimes were over a year old. 

The court agreed that Mr. Crane’s 2015 convictions were the same criminal 

conduct that would lower his offender score from 7 to 6. However, the court elected to 

“defer to the Court of Appeals” on whether Mr. Crane should be allowed to raise the 

same criminal conduct issue at this stage. CP at 163. Thus, the court declined to alter 

Mr. Crane’s offender score. 
No. 38687-2-III

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ANALYSIS

On appeal, Mr. Crane argues there was insufficient evidence to convict him of the 

29 counts of unlawful possession of a firearm because the State added elements to the “to 

convict” instructions that it failed to prove. He also posits there was insufficient evidence 

to convict him of intimidation of a witness. Finally, Mr. Crane contends his offender 

score was incorrectly calculated. 

SUFFICIENCY OF EVIDENCE – UNLAWFUL POSSESSION OF A FIREARM

Mr. Crane argues there was insufficient evidence to prove that he knowingly 

possessed the particular firearms identified by their make, model, and serial number in 

the to convict instructions. We disagree. 

The sufficiency of the evidence is a question of law this court reviews de novo. 

State v. Rich, 184 Wn.2d 897, 903, 365 P.3d 746 (2016). “The test for determining the 

sufficiency of the evidence is whether, after viewing the evidence in the light most 

favorable to the State, any rational trier of fact could have found guilt beyond a 

reasonable doubt.” State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992). “A 

claim of insufficiency admits the truth of the State’s evidence and all inferences that can 

reasonably be drawn from it.” State v. DeVries, 149 Wn.2d 842, 849, 72 P.3d 748 

(2003). “[I]nferences based on circumstantial evidence must be reasonable and cannot be 

based on speculation.” State v. Vasquez, 178 Wn.2d 1, 16, 309 P.3d 318 (2013).
No. 38687-2-III

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The due process clause of the Fourteenth Amendment to the United States 

Constitution requires the State prove every element of an alleged crime beyond a 

reasonable doubt. In re Winship, 397 U.S. 358, 364, 90 S. Ct. 1068, 25 L. Ed. 2d 368 

(1970). If, at trial, the State fails to present sufficient evidence to support the elements of 

the crime, double jeopardy prohibits a retrial. Burks v. United States, 437 U.S. 1, 11, 

98 S. Ct. 2141, 57 L. Ed. 2d 1 (1978). The double jeopardy clause of the Fifth 

Amendment to the United States Constitution does not afford the State a second 

opportunity to supply evidence in a second trial that it failed to muster in the first. Id.

“A to-convict instruction must contain all of the essential elements of the crime 

because it serves as a ‘yardstick’ for the jury to measure innocence or guilt.” State v. 

Nielsen, 14 Wn. App. 2d 446, 450, 471 P.3d 257 (2020). The State “must prove the 

elements included in the to-convict instructions, even when those elements [are]

‘otherwise unnecessary.’” State v. Dillon, 12 Wn. App. 2d 133, 142, 456 P.3d 1199 

(2020) (quoting State v. Johnson, 188 Wn.2d 742, 760, 399 P.3d 507 (2017)). 

RCW 9.41.040(1)(a) reads: 

A person, whether an adult or juvenile, is guilty of the crime of unlawful 

possession of a firearm in the first degree, if the person owns, accesses, has 

in the person’s custody, control, or possession, or receives any firearm after 

having previously been convicted or found not guilty by reason of insanity 

in this state or elsewhere of any serious offense.

The make, model, and serial number of the particular firearm is not an element of 

the crime of unlawful possession of a firearm. However, here, the “to convict”
No. 38687-2-III

State v. Crane

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instructions read, in relevant part: “(1) That on or about February 4, 2020, the defendant 

knowingly owned a firearm or knowingly had a firearm in his possession or control, to 

wit: CVA Hunter Bolt .50 cal. black muzzleloader Serial #61-13-208623-02.” CP at 59. 

The to convict instructions for each count were the same, save for the make, model, and 

serial number of each distinct firearm. 

In support of his argument, Mr. Crane directs us to State v. Jussila, 197 Wn. App. 

908, 932, 392 P.3d 1108 (2017). In Jussila, we reversed Mr. Jussila’s convictions for 

unlawful possession of a firearm. Id. There, the to convict instructions included each 

firearm’s make, model, and serial number. At trial, the State presented little, if any, 

evidence of the make, model, and serial numbers of the firearms Mr. Jussila was charged 

with possessing. In Jussila, we held the law-of-the-case doctrine applies to jury 

instructions that add an element to a crime. Id. at 920.

Conversely, in State v. Munoz-Rivera, we held that the victim’s birthdate did not 

become an added element of the crime when the to convict instruction read, in part, 

“(1) That on or about November 3, 2013, the defendant assaulted K.T. DOB: (11/27/03)

with a deadly weapon.” 190 Wn. App. 870, 878, 361 P.3d 182 (2015) (emphasis added). 

The court in Munoz-Rivera reasoned: 

By placing K.T.’s date of birth in parentheticals, the State did not add her 

date of birth as an additional and otherwise unnecessary element. Rather, 

the parenthetical date of birth information was given to identify K.T. and 

thus distinguish her from any other person whose name might have been 

mentioned during the trial. To hold otherwise would place form over 
No. 38687-2-III

State v. Crane

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substance and manufacture an ambiguity on appeal that certainly never 

entered the jurors’ minds.

Id. at 883. 

The Jussila court distinguished Mr. Jussila’s “to convict” instructions from those 

in Munoz-Rivera stating, “We consider the use of parenthesis in State v. Munoz-Rivera 

dispositive.” Jussila, 197 Wn. App. at 924. The court reasoned that “[e]mployment of 

parenthesis informed the jury that the information in parenthesis is different, if not 

insignificant, from other language explaining the elements of the crimes.” Id. The court 

pointed to the dictionary definition of parenthesis to support its reasoning: “The English 

Oxford Dictionary [sic] defines ‘parenthesis’ as ‘[a] word or phrase inserted as an 

explanation or afterthought into a passage which is grammatically complete without it, in 

writing usually marked off by brackets, dashes, or commas.’” Id. (second alteration in 

original) (quoting OXFORD DICTIONARY ONLINE, https://en.oxforddictionaries.com

/definition/parenthesis (last visited Feb. 15, 2017).

Here, because the State added the make, model, and serial number of each firearm 

to the to convict instructions, to secure a conviction, proof of such was necessary. 

However, we disagree with Mr. Crane’s argument that the State had to prove he knew the 

specific make, model, and serial number of each firearm. 

In jury instruction 36, the to convict instruction, the noun “firearm” was set apart

by the adverb “to-wit.” CP at 59. “To wit” means “that is to say : NAMELY . . . often 
No. 38687-2-III

State v. Crane

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used to call attention to particular matters embraced in more general preceding 

language.” WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY 2418 (1993). Further, 

contrary to Mr. Crane’s argument, the term “knowingly” only modified the portion of the 

instruction that stated Mr. Crane “had a firearm in his possession or control.” CP at 59. 

To secure a conviction, the jury instructions required the State to prove Mr. Crane

knowingly owned a firearm or knowingly had a firearm in his possession or control and, 

by way of the adverb “to wit,” that the firearm he knowingly owned or possessed was the 

same make and model and bore the same serial number as the firearm introduced into 

evidence. In other words, the State had to prove only that Mr. Crane knowingly 

possessed each firearm, not that he knew the specific make, model, and serial number of 

each. 

The State provided evidence that Mr. Crane knowingly possessed each firearm by 

identifying the firearms by their make, model, and serial number via exhibits 4-6 and 

23-49. Each exhibit corresponded to a jury instruction that also included the make, 

model, and serial number of each firearm. In viewing the evidence in the light most 

favorable to the State, any rational trier of fact could have found Mr. Crane’s guilt 

beyond a reasonable doubt. 

We affirm Mr. Crane’s convictions for 29 counts of unlawful possession of a 

firearm as the State presented evidence sufficient to show that Mr. Crane knowingly 
No. 38687-2-III

State v. Crane

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possessed each firearm identified in the information and prescribed in the jury 

instructions.

SUFFICIENCY OF THE EVIDENCE – INTIMIDATION OF A WITNESS

Mr. Crane contends his general threat was insufficient to prove he attempted to 

influence Andrew’s testimony. We disagree.

RCW 9A.72.110 reads, in relevant part:

(1) A person is guilty of intimidating a witness if a person, by use of a 

threat against a current or prospective witness, attempts to:

(a) Influence the testimony of that person;

(b) Induce that person to elude legal process summoning him or her 

to testify;

(c) Induce that person to absent himself or herself from such 

proceedings; or

(d) Induce that person not to report the information relevant to a 

criminal investigation or the abuse or neglect of a minor child, not to have 

the crime or the abuse or neglect of a minor child prosecuted, or not to give 

truthful or complete information relevant to a criminal investigation or the 

abuse or neglect of a minor child.

Mr. Crane’s to convict instruction for intimidating a witness stated:

To convict the defendant of the crime of intimidating a witness, each 

of the following elements of the crime must be proved beyond a reasonable 

doubt:

(1) That on or about February 4th, 2020, the defendant by use of a 

threat against a current or prospective witness attempted to 

influence the testimony of that person; and

(2) That this act occurred in the State of Washington.

CP at 36.
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Mr. Crane argues his threat to Andrew, that he “was gonna kill” whoever turned 

him into the authorities, was not made in an attempt to influence Andrew’s testimony in 

an “official proceeding” because Mr. Crane referenced no such proceeding. Am. Br. of 

Appellant at 36. Mr. Crane points to RCW 9A.72.010(6) that defines “testimony” as 

including “oral or written statements, documents, or any other material that may be 

offered by a witness in an official proceeding.” (Emphasis added.) However, Mr. Crane 

does not offer any authority to support his proposition that an attempt to influence a 

prospective witness’s testimony must directly reference an official proceeding. 

Mr. Crane cites State v. Brown, 162 Wn.2d 422, 173 P.3d 245 (2007), and State v. 

Savaria, 82 Wn. App. 832, 919 P.2d 1263 (1996), to support his claim that the evidence 

was insufficient. In Brown, our Supreme Court held the evidence was insufficient to 

support a conviction for witness intimidation because the State’s evidence established 

only that Mr. Brown attempted to prevent the witness from providing information to the 

police, not that he attempted to influence her testimony. Brown, 162 Wn.2d at 430. 

In Savaria, we held that there was insufficient evidence to support the “attempt to 

influence” means of intimidating a witness. 82 Wn. App. at 841. Mr. Savaria, during a 

telephone call with the witness the day before trial, threatened to kill her after being 

informed she would appear in court as a witness against him. The next day, Mr. Savaria 

and the witness appeared at the courthouse and Mr. Savaria glared at her and showed his 
No. 38687-2-III

State v. Crane

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middle finger to the witness upon seeing her in the prosecutor’s office talking to a police 

officer.

Mr. Savaria was subsequently charged with two alternative means of witness 

intimidation: attempting to influence the testimony of the witness and attempting to 

induce the witness to absent herself from his trial. The prosecutor argued that Mr. 

Savaria attempted to influence the witness’s testimony by glaring at her and “‘flipping 

her off’” at the courthouse. Id. at 841. Mr. Savaria argued on appeal that there was 

insufficient evidence to support the “attempt to influence” means of intimidating a 

witness. Id. The court held that Mr. Savaria’s actions at the courthouse evidenced his 

unhappiness that the witness was going to testify against him, but were not enough to 

prove he intended to influence her testimony. 

On the other hand, the State cites State v. Scherck, 9 Wn. App. 792, 794, 514 P.2d 

1393 (1973). There, Mr. Scherck’s witnesses testified that he asked the victim to “‘just, 

you know, drop the charges. That’s all we ever asked him to do.’” Id. Mr. Scherck 

contended on appeal that this was not enough to demonstrate an attempt to prevent the 

witness from “‘appearing’” at his trial. Id. Contrary to Mr. Scherck’s evidence, the 

victim testified that Mr. Scherck said, “‘If you will refuse to appear as a witness in a trial 

against [Scherck’s friend], the State will have no course but to drop the case.’” Id. 

(alteration in original). And that “[w]hen the victim responded that he could not refuse to 

appear, Scherck observed that he (the victim) had a nice house in a nice neighborhood 
No. 38687-2-III

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and that ‘[i]t would be a shame if anything happened to it.’” Id. (second alteration in 

original). The witness testified that Mr. Scherck also stated “that if the case came to trial 

it ‘would be very embarrassing for [the victim].’” Id. (alteration in original). Based on 

this evidence, this court held there was substantial evidence supporting the court’s 

conclusion that a factual question remained for the jury. 

Here, Mr. Crane’s threat and “aggressive” demeanor toward Andrew demonstrated 

his anger about being reported to the Department. RP at 185. Further, his statement that 

“when he found out who turned him in, that he was gonna kill them,” was intended to 

dissuade Andrew from testifying against him at trial because doing so would surely 

reveal that he was the informant. Id. “A jury may infer intent ‘where a defendant’s 

conduct plainly indicates the requisite intent as a matter of logical probability.’” State v. 

Lopez, 79 Wn. App. 755, 768, 904 P.2d 1179 (1995) (quoting State v. Stearns, 61 Wn. 

App. 224, 228, 810 P.2d 41 (1991). After viewing the evidence in the light most 

favorable to the State, any rational trier of fact could have found Mr. Crane’s threat to 

Andrew was meant to prevent him from revealing himself as the informant by testifying 

against him at trial. Thus, there was sufficient evidence to convict Mr. Crane of 

intimidation of a witness.
No. 38687-2-III

State v. Crane

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SAME CRIMINAL CONDUCT (POSSESSION OF AN UNLAWFUL FIREARM AND 

UNLAWFUL POSSESSION OF A FIREARM)

Mr. Crane argues his convictions for unlawful possession of a firearm and 

possession of an unlawful firearm encompassed the same criminal conduct and should 

have been counted as 1 point. We disagree.

Determinations of same criminal conduct are reviewed for abuse of discretion or

misapplication of the law. State v. Aldana Graciano, 176 Wn.2d 531, 536-37, 295 P.3d 

219 (2013). Because a finding of “same criminal conduct” favors Mr. Crane, he has the 

burden to prove the possession of the unlawful firearm and the unlawful possession of a 

firearm were the same criminal conduct. Id. at 539.

A determination of “same criminal conduct” at sentencing alters the offender 

score that is calculated by adding up the number of points for each prior offense. RCW 

9.94A.525(5)(a)(i). For purposes of an offender score calculation, current offenses are 

treated as prior convictions. RCW 9.94A.589(1)(a).

For sentencing purposes, if a court finds that “some or all of the current offenses 

encompass the same criminal conduct then those current offenses shall be counted as one 

crime.” Id. For multiple crimes to be treated as the “same criminal conduct,” the crimes 

must have (1) been committed at the same time and place, (2) involved the same victim,

and (3) involved the same objective criminal intent. Id. 
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Here, the trial court found that Mr. Crane’s convictions for unlawful possession of 

a firearm and possession of an unlawful firearm were not the same criminal conduct. 

Consequently, the trial court added 2 points to Mr. Crane’s offender score, 1 point for 

each of the two convictions. 

In State v. Hatt, Division One of this court held that Mr. Hatt’s convictions for 

unlawful possession of a firearm and possession of an unlawful firearm had the same 

objective intent⎯“to possess the firearm.” 11 Wn. App. 2d 113, 143, 452 P.3d 577 

(2019). Thus, the two offenses encompassed the same criminal conduct. Id. In doing so, 

the court analyzed State v. Dunaway, 109 Wn.2d 207, 743 P.2d 1237, 749 P.2d 160 

(1988), which “directed courts to ‘focus on the extent to which the criminal intent, as 

objectively viewed, changed from one crime to the next’” for purposes of analyzing the 

third factor of the same criminal conduct analysis. Hatt, 11 Wn. App. 2d at 142. The 

Hatt court recognized that the Supreme Court in Dunaway “did not interpret objective 

criminal intent to be equivalent to statutory intent, stating that ‘counts with identical 

mental elements, if committed for different purposes, would not be considered the same 

criminal conduct.’” Id. at 143 (internal quotation marks omitted) (quoting Dunaway, 109 

Wn.2d at 215). 

However, the court in Hatt viewed State v. Chenoweth, 185 Wn.2d 218, 370 

P.3d 6 (2016), as departing from Dunaway’s analysis. 11 Wn. App. 2d at 143. The Hatt 

court recognized that in Chenoweth “the court compared the statutory criminal intent 
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requirements of [rape of a child and incest] to determine that ‘[t]he intent to have sex 

with someone related to you differs from the intent to have sex with a child.’” Id.

(second alteration in original) (quoting Chenoweth, 185 Wn.2d at 223). The court in Hatt 

nevertheless believed the Dunaway framework was applicable. Id. 

More recently, in State v. Westwood, the Supreme Court explained that Chenoweth 

and Dunaway are “not inconsistent and neither overrules the other.” 2 Wn.3d 157, 166, 

534 P.3d 1162 (2023). The court reiterated that “[t]he statutory intent is relevant in 

determining whether the objective intent prong is satisfied. Looking to any other source 

of intent has the potential to lean too closely to the subjective analysis that we have 

always rejected.” Id. at 167. The court further clarified that “when same criminal intent 

is satisfied, in cases where we determined the crimes did encompass the same criminal 

conduct, there was a connection in the statutory definitions, with the statutory intent 

element of the crimes being either identical or very similar.” Id. 

Here, to convict Mr. Crane of possession of an unlawful firearm, the State had to 

prove Mr. Crane “knowingly possessed a short-barreled shotgun” and that Mr. Crane 

“had knowledge of the characteristics that make the gun unlawful.” CP at 34; RCW 

9.41.190(1). On the other hand, to prove Mr. Crane unlawfully possessed the short-barrel 

shotgun, the State only had to prove Mr. Crane “knowingly owned a firearm or 

knowingly had a firearm in his possession” having been previously “convicted of a 

serious offense.” CP at 38; RCW 9.91.040(1)(a). 
No. 38687-2-III

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We agree with the holding in Hatt that the overarching intent of both crimes is “to 

possess the firearm.” 11 Wn. App. 2d at 143. However, that does not conclude our 

analysis. “If the objective intent for the offenses were the same or similar, courts can 

then look at whether the crimes furthered each other and were part of the same scheme or 

plan.” Westwood, 2 Wn.3d at 168. 

The objective intent of the crime of unlawful possession of a firearm is simply to 

possess a firearm. Possession of an unlawful firearm has a different criminal intent⎯to 

possess a firearm more dangerous and easier to conceal than a legal firearm. 

Consequently, the two crimes do not have the same objective criminal intent and are not 

the same criminal conduct. 

The trial court did not abuse its discretion or misapply the law in finding that the 

unlawful possession of a firearm and possession of an unlawful firearm were not the 

same criminal conduct.

SAME CRIMINAL CONDUCT (2015 ASSAULT AND HARASSMENT)

Mr. Crane argues, and the State concedes, that his 2015 convictions for assault and 

harassment constituted the same criminal conduct. We accept the agreement and remand 

for resentencing with a corrected offender score. 

Below, the State recognized that “it would be a mistake to say that [Mr. Crane’s 

2015 convictions are] not . . . the same criminal conduct.” RP (July 18, 2023) at 18. 
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However, the State contended Mr. Crane’s argument that the two convictions constituted 

the same criminal conduct was untimely as his convictions were over a year old. 

The trial court made “a finding that I’m held to the standard of the statement on a 

plea of guilty on Case Number 15-1-00192-06” and attributed 1 point for each conviction 

toward Mr. Crane’s offender score rather than counting both as a single point. Id. at 33. 

The trial court, in its findings, recognized that the crimes had the same victim, occurred at 

the same time and place, and had the same objective criminal intent. The court 

concluded the crimes involved the same criminal conduct. However, the trial court 

declined to count them as 1 point and instead elected to “defer to the Court of Appeals 

the issue of whether the defendant should be allowed to raise a collateral attack on cause 

number 15-1-00192-6 at this point.” CP at 70. The two offenses should have been 

counted as 1 point. 

RCW 9.94A.525 reads:

(5)(a) In the case of multiple prior convictions, for the purpose of 

computing the offender score, count all convictions separately, except:

(i) Prior offenses which were found, under RCW 9.94A.589(1)(a), to 

encompass the same criminal conduct, shall be counted as one offense, the 

offense that yields the highest offender score. The current sentencing court 

shall determine with respect to other prior adult offenses for which 

sentences were served concurrently or prior juvenile offenses for which 

sentences were served consecutively, whether those offenses shall be 

counted as one offense or as separate offenses using the “same criminal 

conduct” analysis found in RCW 9.94A.589(1)(a), and if the court finds 

that they shall be counted as one offense, then the offense that yields the 

highest offender score shall be used. The current sentencing court may 

presume that such other prior offenses were not the same criminal conduct 
No. 38687-2-III

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from sentences imposed on separate dates, or in separate counties or 

jurisdictions, or in separate complaints, indictments, or informations.

(Emphasis added.) Thus, the current sentencing court must make its own determination 

of whether prior offenses constitute the same criminal conduct. State v. Johnson, 180 

Wn. App. 92, 101, 320 P.3d 197 (2014). The fact that Mr. Crane’s prior 2015 

convictions were over a year old has no bearing on the analysis. 

The court correctly concluded that Mr. Crane’s two 2015 convictions were the 

same criminal conduct and it should have therefore counted them as 1 point. Remand for 

resentencing is necessary. 

CONCLUSION

We affirm Mr. Crane’s convictions and remand for the trial court to resentence 

Mr. Crane with a corrected offender score.

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.

Cooney, J.

WE CONCUR:

Lawrence-Berrey, C.J. Fearing, J.