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

THE STATE OF WASHINGTON,                          No. 78568-1-1

                         Respondent,

                 V.                               UNPUBLISHED OPINION

CHARLES F. BOOME,

                        Appellant.                FILED: November 12, 2019

       SCHINDLER, J. — This is the second appeal in this case. In the first appeal, we

affirmed the jury finding Charles F. Boome guilty of burglary in the first degree and rape

in the first degree. In 2017, the Washington Supreme Court granted his personal

restraint petition on calculation of the offender score and remanded for resentencing.

Boome contends his attorney provided ineffective assistance on remand by not arguing

the burglary in the first degree and rape in the first degree convictions constitute the

same criminal conduct. Boome also challenges imposition of a number of community

custody conditions and an ambiguous waiver provision in "Appendix H" of the judgment

and sentence. We conclude Boome cannot establish ineffective assistance of counsel

but remand to strike crime-related condition 1, mandatory condition 13, and the waiver

provision in Appendix H and to modify conditions 10 and 12.
No. 78568-1-1/2


                                         FACTS

      The facts are fully set forth in State v. Boome, 164 Wn. App. 1040, 2011 WL

5517095, and will be repeated only as necessary.

      Twenty-two-year-old E.H. met some friends at a bar near her apartment on the

evening of April 26, 2007. E.H. was intoxicated when she walked to her apartment at

approximately 1:00 a.m. and went to bed.

      The next thing E.H. remembered was "waking up and discovering a man on top

of her having sexual intercourse with her."' The man, later identified as Charles F.

Boome, was forcibly holding E.H. down with his forearm. When Boome was done, he

left the bedroom.

      E.H. lay in bed for a time, confused about what had happened. When she
      did not hear anyone leave the apartment, she removed the blunt end of a
      pool cue that she kept under her pillow and went out into the living room.[21

      Boome was standing in the living room. As E.H. used the pool cue to push him

through the apartment door, Boome did not struggle with her but "grabbed her breast

and asked when he could see her again."3 After shutting and locking the door, E.H.

went back to sleep.

      Early the next morning, E.H. discovered the bathroom window was open and

there was a footprint in the bathtub under the window. The landlord found a wooden

table that had been moved from the carport to underneath E.H.'s bathroom window.

      After talking to a friend, E.H. went to the hospital and reported the rape. The

profile from the DNA4 samples matched Charles F. Boome.


        Boome, 2011 WL 5517095, at *1.
      2 Boome, 2011 WL 5517095, at *1.
      3 Boome, 2011 WL 5517095, at *1.
      4 Deoxyribonucleic acid.




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No. 78568-1-1/3

       The State charged Boome with rape of E.H. in the first degree by forcible

compulsion in violation of RCW 9A.44.040(1)(d) and burglary in the first degree, alleging

that with intent to commit a crime against a person or property, Boome unlawfully

entered or remained in the apartment and "in immediate flight therefrom," Boome "did

intentionally assault any person therein, to-wit: EH," in violation of RCW 9A.52.020(1).

Boome pleaded not guilty.

       Boome testified sexual intercourse with E.H. was consensual. Boome said that

afterward, he waited for E.H. in the living room. According to Boome, when E.H. came

into the living room, he "hugged her, felt her breasts, and asked if he could see her

again,"6 But "E.H. said no and led Boome out the back door."6

       A jury found Boome guilty of rape in the first degree and burglary in the first

degree. With an offender score of 4 for burglary in the first degree and 6 for rape in the

first degree, the court imposed a high-end concurrent standard-range sentence of 216

months to life and a number of community custody conditions.

       Boome appealed. Boome argued prosecutorial misconduct deprived him of a fair

trial and the sentencing court did not have the statutory authority to impose certain

community custody conditions. We affirmed the convictions but remanded to strike

certain conditions.7

       Boome filed a personal restraint petition (PRP), arguing insufficient evidence

supported the conviction of burglary in the first degree and the court miscalculated his

offender score. The court rejected the argument that insufficient evidence supported

the burglary in the first degree conviction as without merit. The State conceded the

      5 Boome, 2011 WL 5517095, at *2.
      6 Boome, 2011 WL 5517095, at *2.
      7 Boome, 2011 WL 5517095, at *4-5.



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No. 78568-1-1/4

offender score for the burglary conviction was 3 and the offender score for the rape

conviction was 5. The court granted the PRP on the offender score only and remanded

for resentencing.

       On remand, the prosecutor asked the court to impose a sentence at the high end

of the new standard range. Defense counsel requested the court to impose the low end

of the standard sentence range based on Boome's "excellent" behavior while in

custody. The court took into account Boome's "good behavior in prison," including "his

charitable donations of his art," and imposed a mid-standard-range sentence and a

number of community custody conditions.

                                       ANALYSIS

       Boome seeks reversal of the judgment and sentence and a remand for

resentencing. Boome contends his attorney provided ineffective assistance of counsel

at the resentencing by not arguing that his convictions for rape in the first degree and

burglary in the first degree constitute the same criminal conduct for purposes of

sentencing.

       We review ineffective assistance claims de novo. State v. Sutherbv, 165 Wn.2d

870, 883, 204 P.3d 916 (2009). Both the state and federal constitutions guarantee

criminal defendants the right to effective assistance of counsel. State v. Grier, 171

Wn.2d 17, 32, 246 P.3d 1260 (2011). To establish an ineffective assistance claim, a

defendant must show deficient performance and resulting prejudice. Strickland v.

Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); State v.

Nichols, 161 Wn.2d 1, 8, 162 P.3d 1122(2007).




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No. 78568-1-1/5

       Counsel's performance is deficient if it falls "below an objective standard of

reasonableness." State v. Townsend, 142 Wn.2d 838, 843-44, 15 P.3d 145 (2001). To

establish deficient performance, the defendant must show the absence of any

conceivable legitimate tactic supporting counsel's action. Grier, 171 Wn.2d at 33. We

strongly presume that counsel's performance was reasonable. Strickland, 466 U.S. at

690; State v. McFarland, 127 Wn.2d 322, 335, 899 P.2d 1251 (1995). But failure to

argue that several crimes encompass the same criminal conduct can constitute deficient

performance. State v. Saunders, 120 Wn. App. 800, 824-25, 86 P.3d 232(2004)

(defense counsel's decision not to argue same criminal conduct as to the defendant's

rape and kidnapping offenses constituted ineffective assistance).

       To establish prejudice, the defendant must show there is a reasonable probability

that but for the deficient performance, the outcome would have been different. Nichols,

161 Wn.2d at 8. "A reasonable probability is a probability sufficient to undermine

confidence in the outcome." Strickland, 466 U.S. at 694; State v. Jones, 183 Wn.2d

327, 339, 352 P.3d 776 (2015)("reasonable probability" means "by less than a more

likely than not standard").

       We review a determination of what constitutes same criminal conduct for abuse

of discretion or misapplication of the law. State v. Mutch, 171 Wn.2d 646, 653, 254

P.3d 803(2011). A court abuses its discretion if the decision adopts a view that no

reasonable person would take and is manifestly unreasonable or is based on untenable

grounds or untenable reasons. State v. Sisouvanh, 175 Wn.2d 607, 623, 290 P.3d 942

(2012).




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No. 78568-1-1/6

       A court may consider current convictions involving the same criminal conduct as

one crime for sentencing purposes. RCW 9.94A.589(1)(a). Offenses will count as the

same criminal conduct only when they (1)"require the same criminal intent,"(2)"are

committed at the same time and place," and (3)"involve the same victim." RCW

9.94A.589(1)(a). Courts narrowly construe the same criminal conduct rule, and if any of

the three elements are missing, each conviction must count separately in the calculation

of the defendant's offender score. State v. Porter, 133 Wn.2d 177, 181, 942 P.2d 974

(1997).

       Here, there is no dispute that Boome committed rape in the first degree and

burglary in the first degree at the same place and with the same victim. The parties

dispute whether the criminal intent changed between the two crimes.

      In determining same criminal intent, we consider how related the crimes are,

whether there was a change in the objective criminal intent from one crime to the next,

whether the crimes were part of the same scheme or plan, and whether one crime

furthered the other. State v. Burns, 114 Wn.2d 314, 318, 788 P.2d 531 (1990); State v.

Lewis, 115 Wn.2d 294, 301-02, 797 P.2d 1141 (1990). A new intent is formed if the

evidence shows that the criminal acts "'were sequential, not simultaneous or

continuous.'" State v. Tili, 139 Wn.2d 107, 124, 985 P.2d 365(1999)(quoting State v.

Grantham, 84 Wn. App. 854, 859, 932 P.2d 657 (1997)). If the evidence shows the

defendant had the "'time and opportunity to pause, reflect, and either cease his criminal

activity or proceed to commit a further criminal act,'"then objectively, the defendant

formed a new independent criminal intent when he committed his next criminal act. Tili,

139 Wn.2d at 123-24 (quoting Grantham, 84 Wn. App. at 859).




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No. 78568-1-1/7

       Boome cannot show there is a reasonable probability the court would have found

the rape in the first degree and burglary in the first degree convictions constituted the

same criminal conduct. The record does not support his argument that he committed

the burglary solely to commit the rape.

       After Boome raped E.H. in the bedroom, he left and went into the living room.

Boome did not leave the apartment. Boome unlawfully remained in the apartment.

When E.H. went into the living room with the blunt end of a pool cue to force him out of

the apartment, Boome assaulted her by grabbing her breast. The evidence establishes

Boome had time to stop, reflect, and form a new intent before he assaulted E.H.

       The record also shows the court would have applied the burglary antimerger

statute. The antimerger statute affords trial courts discretion to punish separately other

crimes arising out of a burglary:

       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.

RCW 9A.52.050. Crimes may be separately punished even where found to encompass

the same criminal conduct under RCW 9.94A.589(1)(a). State v. Lessley, 118 Wn.2d

773, 781-82, 827 P.2d 996 (1992).

      At the sentencing hearing, the court stated:

      Ithink the prosecutor is correct in characterizing this as perhaps the kind
      of crime that scares us all the most because it violates our safety in our
      home.. . . I'm not going to ignore the very serious nature of this crime. . . .
      I want to recognize the good behavior. . . . But I want to make clear that
      that's why I've deviated from the top of the range as the State asked and
      that's not in any way to minimize the seriousness of what you did . . . and
      how you hurt this woman.




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No. 78568-1-1/8

        We conclude Boome cannot establish prejudice by not arguing that the

convictions for rape in the first degree and burglary in the first degree constitute the

same criminal conduct.8

Community Custody Conditions

        Boome also challenges imposition of a number of community custody conditions.

Boome challenges the following "crime-related" community custody condition:

       (1) Avoid all contact with minors, except for defendant's own children who
       may visit the defendant while he is incarcerated under DOC[8] supervision.

        Boome challenges the following mandatory community custody conditions in

"Appendix H":

       (10)     Submit to sexual history and periodic polygraphs and/or
                plethysmograph assessments at own expense as directed by the
                Department of Corrections and Therapist;

       (12) Do not use or possess sexually explicit material in any form as
            described by treatment provider, including [1]nternet use and
            possession;
       (13) Do not date people or form relationships with people who are less
            than 20 percent of your age. You shall discuss with your therapist
            and/or community corrections ahead of time, your wish to escalate
            the relationship into sexual activity and obtain your therapist and/or
            CCO's[lq approval. Your partner shall participate in treatment.

        We review community custody conditions for an abuse of discretion and reverse

only if manifestly unreasonable. State v. Nguyen, 191 Wn.2d 671, 678, 425 P.3d 847

(2018).




        8 Boome raises the same ineffective assistance of counsel claim in his statement of additional
grounds. We need not consider issues already addressed by appellate counsel in briefing on appeal.
State v. Meneses, 149 Wn. App. 707, 715-16, 205 P.3d 916 (2009).
        9 Department of Corrections.
         19 Community corrections officer.



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No. 78568-1-1/9

       Boome argues we should strike condition 1 prohibiting him from having contact

with minors and condition 13 prohibiting relationships with people less than 20 percent

of his age as not crime-related and vague.

       A "crime-related prohibition" is defined as "an order of a court prohibiting conduct

that directly relates to the circumstances of the crime for which the offender has been

convicted." RCW 9.94A.030(10). A court does not abuse its discretion if there is a

"reasonable relationship" between the crime of conviction and community custody

condition. Nguyen, 191 Wn.2d at 684.

       The State concedes the court should strike condition 1 and condition 13 because

the crimes did not involve a minor. The State also concedes the language of condition

13 is not clear as to the age of a person Boome is prohibited from dating and the court

did not have the authority to order sexual partners to engage in treatment. See State v.

Warnock, 174 Wn. App. 608, 611-12, 299 P.3d 1173(2013). We accept the State's

concessions as well taken.

       Boome argues that requiring plethysmograph testing at the discretion of DOC is

unconstitutional. The State concedes that a portion of the condition should be stricken.

We accept the State's concession as well taken. State v. Land, 172 Wn. App. 593, 605,

295 P.3d 782(2013).

       Boome asserts the language of condition 12 prohibiting him from possessing

sexually explicit material "as described by treatment provider" is unconstitutionally

vague. The State concedes the phrase "as described by treatment provider" should be

stricken from condition 12 because it does not provide sufficiently ascertainable

standards to protect against arbitrary enforcement. See State v. Bahl, 164 Wn.2d 739,




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No. 78568-1-1/10

752-53, 758, 193 P.3d 678 (2008); State v. Irwin, 191 Wn. App. 644, 654, 364 P.3d 830

(2015). We accept the concession as well taken.11

        The "Appendix H Community Placement/Custody" states, "WAIVER: The

following above-listed mandatory conditions are waived by the Court." But there are no

conditions listed following the waiver provision. The State concedes the waiver

provision is ambiguous and should be stricken. We agree.

        We conclude Boome cannot establish ineffective assistance of counsel by failing

to argue at resentencing that burglary in the first degree and rape in the first degree

constitute the same criminal conduct. We remand to strike crime-related condition 1,

mandatory condition 13, and the waiver provision of Appendix H and to modify

conditions 10 and 12.




WE CONCUR:
                                                      S.cQi6i-ef3P--,(s-




        11 The prohibition on sex offenders from possessing "sexually explicit material" is not
unconstitutionally vague. Nguyen, 191 Wn.2d at 680-81.


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