                                                                          FILED
                                                                       MARCH 19, 2020
                                                                 In the Office of the Clerk of Court
                                                                WA State Court of Appeals, Division III




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

STATE OF WASHINGTON,                           )         No. 35792-9-III
                                               )
                     Respondent,               )
                                               )
              v.                               )         UNPUBLISHED OPINION
                                               )
DAHNDRE KAVAUGN WESTWOOD,                      )
                                               )
                     Appellant.                )

       LAWRENCE-BERREY, J. — Dahndre Westwood appeals his convictions for

attempted first degree rape, first degree burglary, and first degree assault. He raises

several assignments of error.

       In a published decision that did not terminate review, we held that the trial court

abused its discretion by rejecting a proposed plea agreement. We remanded the appeal,

directing the State to offer Westwood a plea deal similar to the one rejected by the trial

court. State v. Westwood, 10 Wn. App. 2d 543, 448 P.3d 771 (2019). On remand, the

State offered Westwood a plea deal that required him to plead guilty to attempted second

degree rape. Westwood rejected the State’s offer.
No. 35792-9-III
State v. Westwood


         This matter is now before us to address Westwood’s remaining assignments of

error. We generally affirm, but remand for resentencing for the trial court to determine

whether the three felony convictions involve the same criminal conduct.

         We also address Westwood’s supplemental argument, requesting that resentencing

be conducted by a different judge. We deny his request.

                     FACTS AND PROCEDURAL BACKGROUND

         On December 6, 2012, at approximately 4:30 a.m., A.B. was alone in her duplex.

She heard a noise, looked up, and saw a man standing in the hallway. The man wore

black clothing and a dark-colored bandana on his face. He was holding a large curved

knife.

         The man pushed A.B. into her bedroom and onto her bed. The man told A.B. to

take off her clothes and threatened to kill her. He tried to remove her clothes by force but

was unsuccessful. He shoved his hand down her pajama pants and touched her leg. A.B.

clawed at his hands and knocked the knife away. Headlights from several passing cars

shone through the window. The man looked out the window, told A.B. that he would kill

her if she told anyone, and ran out of the house.




                                             2
No. 35792-9-III
State v. Westwood


       A.B. immediately locked her door and called 911. She then went to the hospital

and received a sexual assault examination. A nurse took swab samples from A.B.’s hands

and mouth.

       The right fingertip swab contained the deoxyribonucleic acid (DNA) of A.B. and

an unknown man. In December 2014, the crime lab matched the unknown male DNA to

Dahndre Westwood. After obtaining a warrant, police took an oral swab from Westwood

to collect his DNA. Westwood’s DNA matched that obtained from the swab of A.B.’s

finger. A detective showed A.B. two photographs of Westwood and she identified him as

her attacker.

       The State charged Westwood with attempted first degree rape, first degree

burglary, first degree assault, second degree assault, and indecent liberties. Westwood

was 14 years old on the date of the alleged attack and 17 years old on the date he was first

charged. The juvenile court declined to exercise jurisdiction over Westwood and

Westwood was tried in adult court.

       Prior to trial, the parties proposed a plea agreement wherein the State would amend

the information to allege only indecent liberties, and Westwood would plead guilty to that

charge as well as to a third degree assault charge in a different case. The trial court

rejected the proposed plea agreement as inconsistent with prosecutorial standards, and the


                                              3
No. 35792-9-III
State v. Westwood


case proceeded to a jury trial. Defense counsel’s theory of the case was that Westwood

did not attack A.B., but that another person did while wearing clothing with Westwood’s

DNA on it.

       On the second day of trial, juror 5 sent a note to the court that read, “Jury [sic] 7

and 8 were talking tranfer [sic] DNA at the last break.” Clerk’s Papers (CP) at 378-79.

Westwood moved for a mistrial. The State opposed the motion. The court questioned

juror 5, who explained that in the presence of the entire jury, that juror 9 said it was

impossible to transfer DNA to clothing through touch. The court determined the

discussion actually occurred between jurors 8 and 9. The court dismissed jurors 8 and 9

and replaced them with alternate jurors.

       In the presence of the prosecution and defense counsel, the court questioned the

remaining jurors individually as to their ability to perform their duty. Each juror

responded that they would decide the case based only on admitted evidence. Westwood

renewed his motion for a mistrial, and the court denied his motion.

       At trial, witnesses testified to the preceding facts. In addition, the State called

Washington State Patrol Crime Laboratory forensic DNA supervisor Anna Wilson, who

testified it would be possible for a person’s DNA to be present at a crime scene through

DNA transfer even if the person was never present at the crime scene. Defense counsel


                                              4
No. 35792-9-III
State v. Westwood


chose not to call a DNA expert witness, explaining he was satisfied with Ms. Wilson’s

testimony.

       The court instructed the jury that it was to base its verdict solely on evidence

admitted at trial. The jury found Westwood guilty of attempted first degree rape, first

degree burglary, first degree assault, and second degree assault, and not guilty of indecent

liberties. The jury specifically found that during the attempted rape, Westwood used or

threatened to use a deadly weapon and feloniously entered A.B.’s home.

       At sentencing, the trial court determined that double jeopardy principles required it

to dismiss the second degree assault verdict. The State agreed.

       Westwood argued his remaining felony convictions—attempted first degree rape,

first degree burglary, and first degree assault—should be considered the same criminal

conduct. The State argued, under State v. Chenoweth, 185 Wn.2d 218, 370 P.3d 6 (2016),

separate offenses are not the same criminal conduct if the applicable statutes have

different intent elements. The trial court hesitated before adopting the State’s arguments.

Eventually, it agreed that Chenoweth required it to determine that Westwood’s three

felony convictions were not the same criminal conduct because the convictions required

proof of different intent elements. This determination resulted in higher offender scores




                                              5
No. 35792-9-III
State v. Westwood


for the three convictions and also consecutive sentences for Westwood’s two serious

violent offense convictions—attempted first degree rape and first degree assault.

       Westwood requested an exceptional mitigated sentenced based on his age at the

time of the offenses. In support, Westwood submitted several pages of personal

background information. The information included that Westwood had been held back in

second or third grade because of immaturity, and that he was immature for his age at the

time of the offenses. Westwood also submitted 10 letters written by persons who knew

him. The letters praised Westwood’s good qualities and argued he did not commit the

crimes with which he was charged. The court refused to impose an exceptional mitigated

sentence.

       The court sentenced Westwood to confinement for 105 months on the attempted

rape charge, 47.5 months on the burglary charge, and 108 months on the first degree

assault charge. The court imposed consecutive sentences on the attempted rape and

assault convictions, for a total term of incarceration of 213 months. The court imposed a

$500 victim penalty assessment, a $200 criminal filing fee, and a $100 DNA collection

fee.

       Westwood timely appealed.




                                            6
No. 35792-9-III
State v. Westwood


                                        ANALYSIS

       A.     DENIAL OF MOTION FOR MISTRIAL

       Westwood argues he was denied his article I, section 22 and Sixth Amendment to

the United States Constitution right to a fair and impartial jury when the trial court denied

his motion for a mistrial after two jurors discussed extrinsic DNA evidence.

       “[T]he consideration of novel or extrinsic evidence by a jury is misconduct and can

be grounds for a new trial.” State v. Balisok, 123 Wn.2d 114, 118, 866 P.2d 631 (1994).

“Novel or extrinsic evidence is defined as information that is outside all the evidence

admitted at trial, either orally or by document.” Richards v. Overlake Hosp. Med. Ctr., 59

Wn. App. 266, 270, 796 P.2d 737 (1990).

       “The trial court should grant a mistrial only when the defendant has been so

prejudiced that nothing short of a new trial can ensure that the defendant will be fairly

tried.” State v. Emery, 174 Wn.2d 741, 765, 278 P.3d 653 (2012). “We review the trial

court’s denial of a mistrial for abuse of discretion, and we find abuse only ‘when no

reasonable judge would have reached the same conclusion.’” Id. (internal quotation

marks omitted) (quoting Sofie v. Fibreboard Corp., 112 Wn.2d 636, 667, 771 P.2d 711,

780 P.2d 260 (1989)). “[A] trial court may ask questions of the jurors’ subjective ability




                                              7
No. 35792-9-III
State v. Westwood


to disregard extrinsic information before there is a verdict to potentially impeach.” State

v. Gaines, 194 Wn. App. 892, 898, 380 P.3d 540 (2016).

       Juror 9 told juror 8 that it was impossible to transfer DNA evidence from touch to

clothing. Jurors overheard this, and one juror informed the trial court. The court excused

jurors 9 and 8. Then, the court questioned each juror individually as to their ability to

perform their duty and to decide the case only on admitted evidence. Each responded

they could. We believe the trial court made the appropriate inquiries and reasonably

believed the remaining jurors could decide the case only on admitted evidence.

       The State’s expert testified it was possible for DNA evidence to transfer from

touch to clothing. The jury knew it was possible, but found it did not occur in this

instance. We conclude the trial court did not abuse its discretion by denying Westwood’s

motion for a new trial.

       B.     DOUBLE JEOPARDY

              1.     STANDARDS

       Westwood argues the trial court violated his rights against double jeopardy by

entering separate convictions for attempted first degree rape and first degree assault. We

review double jeopardy challenges de novo. State v. Freeman, 153 Wn.2d 765, 770, 108

P.3d 753 (2005).


                                              8
No. 35792-9-III
State v. Westwood


       “The State may bring (and a jury may consider) multiple charges arising from the

same criminal conduct in a single proceeding.” Id.; U.S. CONST. amend. V; WASH.

CONST. art. I, § 9. “Courts may not, however, enter multiple convictions for the same

offense without offending double jeopardy.” Id. at 770-71 (citing State v. Vladovic, 99

Wn.2d 413, 422, 662 P.2d 853 (1983)). The legislature has the power to define offenses

and set punishments. Id. at 771 (citing State v. Calle, 125 Wn.2d 769, 777-78, 888 P.2d

155 (1995)). For this reason, “[w]here a defendant’s act supports charges under two

criminal statutes, a court weighing a double jeopardy challenge must determine whether,

in light of legislative intent, the charged crimes constitute the same offense.” In re Pers.

Restraint of Orange, 152 Wn.2d 795, 815, 100 P.3d 291 (2004). “If the legislature

authorized cumulative punishments for both crimes, then double jeopardy is not

offended.” Freeman, 153 Wn.2d at 771.

       A four-factor analysis determines whether multiple convictions violate double

jeopardy. First, the court looks for express or implied legislative intent that offenses be

punished separately. Id. at 771-72. “Second, if the legislative intent is not clear, we may

turn to the Blockburger[1] test.” Id. at 772. “Third, if applicable, the merger doctrine is



       1
           Blockburger v. United States, 284 U.S. 299, 304, 52 S. Ct. 180, 76 L. Ed. 306
(1932).

                                               9
No. 35792-9-III
State v. Westwood


another aid in determining legislative intent, even when two crimes have formally

different elements.” Id. “Finally, even if on an abstract level two convictions appear to

be for the same offense or for charges that would merge, if there is an independent

purpose or effect to each, they may be punished as separate offenses.” Id. at 773.

       The remedy for a double jeopardy violation is vacation of the lesser conviction.

State v. Portrey, 102 Wn. App. 898, 907, 10 P.3d 481 (2000). “This is because the greater

offense ‘typically carries a penalty that incorporates punishment for the lesser included

offence.’” Freeman, 153 Wn.2d at 775 (quoting Akhil Reed Amar & Jonathan L.

Marcus, Double Jeopardy Law After Rodney King, 95 COLUM. L. REV. 1, 28 (1995)).

              2.     APPLICATION: LEGISLATIVE INTENT DETERMINES THE ISSUE

       RCW 9A.52.050 provides: “Every person who, in the commission of a burglary

shall commit any other crime, may be punished therefor as well as for the burglary, and

may be prosecuted for each crime separately.”

       Here, the jury found Westwood guilty of attempted first degree rape, first degree

assault, and first degree burglary. Under RCW 9A.52.050, the trial court had authority to

separately punish and enter convictions for all three felonies. State v. Collicott, 118

Wn.2d 649, 658, 827 P.2d 263 (1992) (“Under [the burglary antimerger] statute it is




                                             10
No. 35792-9-III
State v. Westwood


proper also for Mr. Collicott to be punished for each of the three offenses for which he

has been charged.”).

       We distinguish State v. Johnson, 92 Wn.2d 671, 600 P.2d 1249 (1979). There,

because the State did not charge Johnson with burglary, the burglary antimerger statute

did not apply. See State v. Sweet, 138 Wn.2d 466, 478, 980 P.2d 1223 (1999) (applying

Collicott and distinguishing Johnson).

       We conclude the trial court did not violate Westwood’s right against double

jeopardy by entering separate convictions for first degree assault and first degree

attempted rape.

       C.     SAME CRIMINAL CONDUCT

       Westwood argues the trial court erred by finding his three convictions were not the

same criminal conduct and by sentencing him to consecutive sentences for attempted first

degree rape and first degree assault.

       The defendant bears the burden to prove that offenses constitute the same criminal

conduct. State v. Graciano, 176 Wn.2d 531, 539, 295 P.3d 219 (2013). A court’s

determination of same criminal conduct is reviewed for abuse of discretion or

misapplication of law. Id. at 537.




                                             11
No. 35792-9-III
State v. Westwood


              Scoring

       Separate crimes that encompass the same criminal conduct are counted as one

crime for offender score purposes. RCW 9.94A.589(1)(a). Separate crimes constitute the

same criminal conduct when they “require the same criminal intent, are committed at the

same time and place, and involve the same victim.” Id. Crimes are committed with the

same criminal intent when, viewed objectively, intent did not change from one crime to

the next. State v. Dunaway, 109 Wn.2d 207, 215, 743 P.2d 1237 (1987). “‘Intent, in this

context, is not the particular mens rea element of the particular crime, but rather is the

offender’s objective criminal purpose in committing the crime.’” State v. Kloepper, 179

Wn. App. 343, 357, 317 P.3d 1088 (2014) (quoting State v. Adame, 56 Wn. App. 803,

811, 785 P.2d 1144 (1990)). “In determining whether multiple crimes constitute the same

criminal conduct, courts consider ‘how intimately related the crimes committed are,’

‘whether, between the crimes charged, there was any substantial change in the nature of

the criminal objective,’ and ‘whether one crime furthered the other.’” State v. Rattana

Keo Phuong, 174 Wn. App. 494, 546-47, 299 P.3d 37 (2013) (quoting State v. Burns, 114

Wn.2d 314, 318, 788 P.2d 531 (1990)). And, “if one crime furthered another, and if the

time and place of the crimes remained the same, then the defendant’s criminal purpose or




                                             12
No. 35792-9-III
State v. Westwood


intent did not change and the offenses encompass the same criminal conduct.” State v.

Lessley, 118 Wn.2d 773, 777, 827 P.2d 996 (1992).

       For scoring purposes, a trial court has discretion to consider burglary as separate

from other crimes even if they are the same criminal conduct. RCW 9A.52.050; Lessley,

118 Wn.2d at 781-82; State v. Knight, 176 Wn. App. 936, 962, 309 P.3d 776 (2013).

       In Chenoweth, the Washington Supreme Court held that rape and incest were

separate criminal conduct even when resulting from a single act. 185 Wn.2d at 224.

However, the holding of that case, as well as the precedent it relies on, are specific to rape

and incest. See id.; State v. Bobenhouse, 166 Wn.2d 881, 896, 214 P.3d 907 (2009);

Calle, 125 Wn.2d at 780. As Chenoweth does not purport to overrule Dunaway or its

progeny, its holding and rationale are limited to cases of rape and incest arising from a

single act.

       Here, the trial court declined to exercise its discretion. Rather, it perceived it was

bound by Chenoweth to consider the attempted rape, assault, and burglary as separate

offenses. As explained above, the court was not obligated to do so. Thus, the court’s

decision was based on a misapplication of law.2


       2
         The trial court’s initial instincts were spot-on. Before accepting the State’s
position, it noted Chenoweth did not explicitly overrule Dunaway and indicated a broad
application of Chenoweth made no sense.

                                             13
No. 35792-9-III
State v. Westwood


       We conclude the trial court erred in failing to exercise its discretion to determine

whether Westwood’s convictions for attempted first degree rape, first degree assault, and

first degree burglary constituted the same criminal conduct for scoring purposes.3

              Concurrent or consecutive sentences

       Westwood’s convictions for first degree rape and first degree assault are

classified as serious violent offenses. Former RCW 9.94A.030(45)(v), (vii) (2012).

RCW 9.94A.589(1)(b) provides that in sentencing serious violent offenses, the crimes

will be sentenced consecutively to each other if they arise from “separate and distinct

criminal

conduct.” That standard is the same as the “same criminal conduct” standard of

RCW 9.94A.589(1)(a). Kloepper, 179 Wn. App. at 356. If the trial court finds that the

assault and rape offenses constituted the same criminal conduct for scoring purposes, the

three convictions must be sentenced concurrently.

       D.     STANDARD RANGE SENTENCE

       “A sentence within the standard sentence range . . . for an offense shall not be

appealed.” RCW 9.94A.585(1). “Nevertheless, a defendant may appeal the trial court’s


       3
        Westwood requests that we decide the “same criminal conduct” issue. Because
appellate courts grant the trial court a certain amount of discretion on that issue, it is more
appropriate for us to remand and allow the trial court to decide it.

                                              14
No. 35792-9-III
State v. Westwood


procedure in imposing his sentence.” Knight, 176 Wn. App. at 957. “A discretionary

sentence within the standard range is reviewable in ‘circumstances where the court has

refused to exercise discretion at all or has relied on an impermissible basis for refusing to

impose an exceptional sentence below the standard range.’” State v. McFarland, 189

Wn.2d 47, 56, 399 P.3d 1106 (2017) (internal quotation marks omitted) (quoting State v.

McGill, 112 Wn. App. 95, 100, 47 P.3d 173 (2002)).

       A trial court may impose a sentence below the standard range if it finds by a

preponderance of the evidence that the defendant’s ability to appreciate the wrongfulness

of his or her conduct was significantly impaired. RCW 9.94A.535(1)(e). The court must

exercise its discretion to determine whether a defendant’s youthfulness diminished his or

her capacity to appreciate the wrongfulness of conduct. See State v. O’Dell, 183 Wn.2d

680, 696-99, 358 P.3d 359 (2015).

       The trial court did not abuse its discretion in imposing a standard sentence. As an

initial matter, the court did consider whether to impose an exceptional sentence. Thus, the

court did not fail to exercise its discretion.

       Westwood was held back in elementary school and was emotionally immature at

the time he committed these crimes. This evidence permitted, but did not require, the trial

court to conclude Westwood’s youth and immaturity diminished his capacity to appreciate


                                                 15
No. 35792-9-III
State v. Westwood


the wrongfulness of entering a woman’s home with a large knife and attempting to rape

her. We conclude the trial court did not abuse its discretion when it imposed a standard

range sentence.4

       E.     PROCEDURE ON RESENTENCING

       We now address in more detail what occurred on remand while we retained

jurisdiction. After Westwood rejected the State’s plea offer, the trial court entered an

order sending the case back to us. The order attached a 10-page letter opinion, with its

own attachments, setting forth the trial court’s reasons why the State’s original plea offer

was not consistent with prosecutorial standards. The trial court’s letter opinion is

appended to this court’s decision. See CP at 626-35. We quote a portion of the letter

opinion:

               [Prior hearings in this case establish the State’s initial plea offer was
       not motivated by lack of merit or evidentiary concerns.]
               The prosecution did not make an individual assessment of
       [Westwood’s] youth as a mitigating factor to be considered in charging in
       the full context of [Westwood’s] entire criminal history when it extended
       [the initial] plea offer to [him]. Further, it ignored the full consideration
       given to [Westwood’s] youth as a mitigating factor in juvenile court. This
       Court concludes that if it had, no reasonable prosecutor could have
       concluded that [Westwood’s] youth was a justification for dismissing two
       serious violent felonies [he] had committed.

       4
          Because resentencing is required, we need not address Westwood’s contention
the trial court erred by imposing various legal financial obligations (LFOs). At
resentencing, the trial court must impose LFOs consistent with recent legislative changes.

                                              16
No. 35792-9-III
State v. Westwood


               ....
               . . . The State has demonstrated over and over again that it does not
       believe Mr. Westwood’s criminal conduct resulted from a youthful inability
       to resist transient violent urges.
               ....
               The record before the Court demonstrates that Mr. Westwood is a
       dangerous and violent person.

CP at 634 (emphasis added).

       Westwood argues the trial court’s written comments make clear it cannot

give him a fair resentencing. Westwood requests us to order reassignment of his

case to a different sentencing judge.

       “Under the state and federal constitutions, a criminal defendant has the right

to be tried and sentenced by an impartial court.” State v. Solis-Diaz, 187 Wn.2d

535, 539, 387 P.3d 703 (2017) (citing U.S. CONST. amends VI, XIV; WASH.

CONST. art. I, § 22). “Pursuant to the appearance of fairness doctrine, a judicial

proceeding is valid if a reasonably prudent, disinterested observer would conclude

that the parties received a fair, impartial, and neutral hearing.” Id. at 540. “The

law requires more than an impartial judge; it requires that the judge also appear to

be impartial.” Id.

       A party may seek a new judge for the first time on appeal. Id. This is

typically done where the trial judge will exercise discretion on remand regarding


                                             17
No. 35792-9-III
State v. Westwood


the very issue that triggered the appeal and has already been exposed to prohibited

information, expressed an opinion as to the merits, or otherwise prejudged the

issue. Id.

       Here, we are remanding for the trial court to exercise discretion and decide

whether Westwood’s three felony convictions involved the same criminal conduct.

The outcome will determine the correct offender score and whether the sentences

will run concurrent or partially concurrent. The trial court has not expressed any

opinion or prejudice with respect to this issue. If anything, the trial court’s initial

reluctance to accept the State’s Chenoweth argument indicates a willingness to

impose a concurrent sentence. This is especially clear given the court’s comments

and the State’s acknowledgment that “the burglary and the assault were committed

in order to further the attempted rape.” RP (Jan. 8, 2018) at 44.

       The record shows a conscientious judge who applied the law fairly to Westwood.

We have affirmed most of the trial court’s rulings. The trial court’s statements in its letter

are statements based on the record before the trial court. They are not based on any

improper prejudice or bias. A reasonably prudent, disinterested observer would conclude

that Westwood received a fair trial and a fair sentence, and that he will receive a fair

resentencing. Accordingly, we deny Westwood’s request for a new sentencing judge.


                                              18
No. 35792-9-III
State v. Westwood


       Affirmed in part; remand for resentencing.

       A majority of the panel has determined this opinion will not be printed in the

Washington Appellate Reports, but it will be filed for public record pursuant to

RCW 2.06.040.




WE CONCUR:


 Q,
Pennell, C.J.




                                            19
No. 35792-9-III
State v. Westwood




                    APPENDIX




                       20
No. 35792-9-III
State v. Westwood




                    21
No. 35792-9-III
State v. Westwood




                    22
No. 35792-9-III
State v. Westwood




                    23
No. 35792-9-III
State v. Westwood




                    24
No. 35792-9-III
State v. Westwood




                    25
No. 35792-9-III
State v. Westwood




                    26
No. 35792-9-III
State v. Westwood




                    27
No. 35792-9-III
State v. Westwood




                    28
No. 35792-9-III
State v. Westwood




                    29
No. 35792-9-III
State v. Westwood




                    30
