       IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

 STATE OF WASHINGTON,                           No. 81035-9-I

                            Respondent,         DIVISION ONE

                v.
                                                UNPUBLISHED OPINION
 JAMES DEWAYNE GARDNER,

                            Appellant.


       CHUN, J. — James Gardner molested A.R. twice in short succession on

his bed, but A.R. left the room between each instance. Then, Gardner molested

her the following morning in a different room. A jury convicted Gardner of three

counts of child molestation. At sentencing, Gardner’s attorney did not argue that

at least two of his offenses—namely, those he committed on his bed, in short

succession—constituted the same criminal conduct, and that he should have

received a lower offender score. Gardner claims this constituted ineffective

assistance of counsel. But because he suffered no prejudice from his trial

counsel failing to make such an objection, we affirm. Additionally, because

Gardner is indigent, we remand to strike the $200 criminal filing fee and interest

accrual provision from his Judgment and Sentence.

                                      I. BACKGROUND

       During the summer of 2016, A.R. stayed regularly with her mother and

Gardner, her mother’s boyfriend, at his apartment. Gardner’s three daughters


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also lived in the apartment.

       One evening, A.R. and Gardner’s daughter, S.G., watched a movie on the

bed in Gardner’s room. Gardner was at home, using the computer in the same

room, and A.R.’s mother was at work. During the movie, Gardner moved onto

the bed next to A.R., grabbed her waist, pulled her close to him, and touched her

vagina over her clothing. A.R. asked Gardner what he was doing and got off the

bed. Gardner said, “Sorry.” A.R. then left the room, went into the kitchen, and

unsuccessfully attempted to call her mother. A.R. stood in the kitchen for a few

minutes until S.G. came out and asked her if she was going to come back and

watch the movie; A.R. indicated that she would.

       Both A.R. and S.G. went back into the room and sat on the bed. A.R. tried

to switch places with S.G. so that she would not be next to Gardner on the bed,

but Gardner directed S.G. to sit on the outside of the bed, with A.R. once again

between S.G. and Gardner. Gardner then grabbed A.R.’s waist, pulled her close

to him, and touched her on her vagina, this time under her pants but over her

underwear. A.R. again got up and asked Gardner why he was doing that to her.

Gardner replied, “Sorry.” A.R. then left the room and unsuccessfully attempted to

call her mother again. A.R. decided not to go back into Gardner’s room, went to

go sleep on a mattress in the room that Gardner’s two other daughters were

sleeping in, and wrapped herself up in a blanket.

       When A.R. woke up, Gardner had put his body on top of hers, and was

touching her vagina under her underwear. A.R. got up and asked Gardner why

he would not stop touching her. Gardner replied that he was sorry and that A.R.


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should stop watching horror movies. Gardner left the room and went back to his

room. A.R. once again called her mother, who answered. A.R. told her mother

what had happened.

       A.R.’s mother arrived at the apartment and confronted Gardner. A.R.’s

mother then took her to stay with her grandmother. A.R. then moved to her

father’s home in North Carolina. A.R. eventually told her father and stepmother

what Gardner had done, and her father contacted the police.

       A jury convicted Gardner on three counts of third-degree child molestation.

The trial court also imposed a $200 criminal filing fee and an interest accrual

provision. Gardner appeals.
                                    II. ANALYSIS

   A. Ineffective Assistance of Counsel

       Gardner argues he received ineffective assistance of counsel because his

trial attorney failed to argue that some or all of his convictions for child

molestation in the third degree involved the same conduct, and should have been

scored as a single offense. The State argues that the convictions were properly

scored as separate offenses because they involved different criminal conduct.

We agree with the State.

       A defendant “must show both (1) deficient performance, and (2) resulting

prejudice” to prevail on a claim for ineffective assistance of counsel. State v.

Estes, 188 Wn.2d 450, 457–58, 395 P.3d 1045 (2017); Strickland v. Washington,

466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). “Performance is

deficient if it falls below an objective standard of reasonableness based on



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consideration of all the circumstances. Prejudice exists if there is a reasonable

probability that but for counsel’s deficient performance, the outcome of the

proceedings would have been different.” Estes, 188 Wn.2d at 458 (internal

quotation marks and citations omitted).

       Here, assuming deficient performance, there is not a reasonable

probability that the outcome of the proceedings would have been different if

Gardner’s trial attorney had argued his child molestation offenses constituted the

same criminal conduct.

       If a trial court finds at sentencing that some or all of the defendant’s

offenses encompass the same criminal conduct, then a court must count those

offenses as one crime for sentencing purposes. RCW 9.94A.589(1)(a).

Offenses encompass the “same criminal conduct” 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). We construe narrowly

whether a defendant’s offenses constitute the same criminal conduct, and “will

not find same criminal conduct if any of the three elements are missing.” State v.

Saunders, 120 Wn. App. 800, 824, 86 P.3d 232 (2004). Gardner bears the

burden of establishing that his offenses constituted the same conduct. State v.

Phuong, 174 Wn. App. 494, 547, 299 P.3d 37 (2013).

       Where a defendant has “time and opportunity to pause, reflect, and either

cease [their] criminal activity or proceed to commit a further criminal act,” they

have opportunity to form new criminal intent, even where their offenses take

place in the same general time and place. State v. Mutch, 171 Wn.2d 646, 654–


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55, 254 P.3d 803 (2011). In Mutch, the defendant raped his victim five times

over the course of one night, and a jury convicted him of five counts of second-

degree rape. 171 Wn.2d at 654–55. The defendant stopped for about an hour

between each of the first four rapes. Mutch, 171 Wn.2d at 655. Then, the

defendant slept; the fifth rape took place after the defendant awoke and in a

different room than the first four. Mutch, 171 Wn.2d at 655. The court concluded

the defendant’s offenses did not constitute the same criminal conduct, since he

had time to “pause, reflect, and either cease or continue,” and thus, “[h]e

objectively formed new criminal intent” for each offense.” Mutch, 171 Wn.2d

at 655.

       By contrast, in State v. Tili, the defendant first digitally penetrated the

victim’s anus, then digitally penetrated the victim’s vagina, and finally used his

penis to penetrate the victim’s vagina. 139 Wn.2d 107, 117, 985 P.2d 365

(1999). The defendant committed each act of penetration in the same room,

continuous with the previous act, and without interruption. Tili, 139 Wn.2d

at 124. The court held that the defendant’s rape offenses constituted the same

criminal conduct because they were separated only by approximately two

minutes and involved an unchanging pattern of criminal conduct. Tili, 139 Wn.2d

at 124.

       Gardner’s offenses involved the same victim—A.R. All three offenses

took place over the course of one night and morning, at Gardner’s apartment. As

in Tili, the first two offenses took place over a short period of time—just a matter

of minutes. However, unlike in Tili, where the defendant committed each rape


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without interruption, between the first two offenses, A.R. stood up, asked

Gardner what he was doing, left the room, and stayed in the kitchen until S.G.

asked her if she was coming back into the room. When she came back into the

room, Gardner ordered S.G. to sit on the edge of the bed so that A.R. would be

next to him, and then pulled her toward him and molested her again. While only

a few minutes separated each of the first two offenses, A.R.’s leaving the room

and asking Gardner what he was doing gave him the opportunity to pause,

reflect, and cease his conduct. Instead, he chose to continue, and molested her

once again. Thus, Gardner formed new criminal intent between the first and

second offenses.

       Gardner also formed new criminal intent between the second and third

offenses. As in Mutch, the third time that Gardner molested A.R., he did so in a

different room than he did the previous times. Again, A.R. had left the room after

the second instance and asked Gardner why he was touching her. Additionally,

A.R. had wrapped herself up in a blanket, requiring Gardner to undo the blanket

to touch her body.

       Because the foregoing facts establish that Gardner formed new criminal

intent each time he molested A.R., he has failed to meet his burden of

establishing that his offenses constituted the same criminal conduct. Because

his offenses did not constitute the same criminal conduct, there is no reasonable

probability that the outcome of his sentencing would have been different had his

trial counsel raised such an objection. Thus, he suffered no prejudice, and his

ineffective assistance of counsel claim fails.


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   B. Legal Financial Obligations

       Gardner argues we should remand to strike the $200 criminal filing fee

and interest accrual provision from his Judgment and Sentence, since he is

indigent. The State agrees.

       Under State v. Ramirez, 191 Wn.2d 732, 426 P.3d 714 (2018), courts may

not impose discretionary fees—such as the $200 criminal filing fee—on indigent

defendants. Ramirez also states that interest cannot accrue on nonrestitution

portions of legal financial obligations. 191 Wn.2d at 747. The trial court

recognized Gardner’s indigence when it allowed him to pursue an appeal at

public expense. Thus, we remand to strike the criminal filing fee and interest

accrual provision from his Judgment and Sentence.

       Sentence affirmed, with remand to strike filing fee and interest accrual

provision.




WE CONCUR:




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