     IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON


STATE OF WASHINGTON,
                                                No. 75614-1-1
                    Respondent,
                                               DIVISION ONE
      V.

MICHAEL ANTHONY SANTOS,                         UNPUBLISHED OPINION

                    Appellant.                 FILED: February 26, 2018

      SPEARMAN, J. — Defendant Michael Santos was beating and stabbing

Vernon Mackprang when Mackprang's roommate, Thomas Tofflemoyer,

attempted to intervene. Santos then cut Tofflemoyer with a large knife that

witnesses described as being at least one foot long. Santos' companion later

bound Tofflemoyer with duct tape as the two took several items from

Tofflemoyer's home and then fled. Santos was convicted of second degree

assault and unlawful imprisonment of Tofflemoyer with a deadly weapon

enhancement. Santos appeals, arguing that insufficient evidence supports that

the knife was over three inches long, and that the assault and unlawful

imprisonment of Tofflemoyer constitute the same criminal conduct. We disagree

and affirm.
No. 75614-1-1/2

                                     FACTS

       Vernon Mackprang lived in his Kent home with Molly Bates and Thomas

Tofflemoyer. Mackprang was disabled, and Bates and Tofflemoyer were his

caregivers. In the early morning hours of July 22, 2015, Abbie Rupnick and

defendant Michael Santos knocked on the door. Tofflemoyer answered. He

recognized Rupnick as a friend of Mackprang's, and let both her and Santos in

the house. Rupnick and Santos made their way into the bathroom, and then into

the laundry room. Mackprang and Tofflemoyer followed.

       In the laundry room, Rupnick pulled out metal scissors and asked if she

could sharpen them. Tofflemoyer said no. Then, Rupnick asked if Mackprang

had any .380 auto shells. Mackprang said that he did not. Tofflemoyer left the

room briefly. Shortly after he returned, Rupnick and Santos began accusing

Mackprang of being a "narc," "snitch," and "child molester." Verbatim Report of

Proceeding (VRP)at 390; 701; 755. Santos hit Mackprang on the arm with a

large knife, and then in the legs, hand, and head. Tofflemoyer told them that

Mackprang wasn't a snitch. In response, Santos hit Tofflemoyer in his chin with

the knife.

       During this time, Rupnick got the keys to Mackprang's locked bedroom,

went into the bedroom, and took an iPad. Bates was awoken by a loud noise and

went into the laundry room to investigate. Rupnick duct taped Bates' mouth and

her hands behind her back. She then taped Tofflemoyer's hands behind his back.

Rupnick tried to bind Mackprang's hands together, but was having difficulty

because the tape would not stick to his bloody skin. As she continued her efforts,


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No. 75614-1-1/3

Mackprang managed to get to his feet. He pushed Rupnick across the room and

tackled her to the ground. Rupnick began to punch Mackprang in the face and

then stabbed him in the neck and head with a different knife.

         In the melee, Bates managed to escape the house. She screamed for help

as she fled down the street. Rupnick was fearful that Bates would attract the

police and told Santos that they should leave. Santos grabbed some of

Mackprang's belongings and then left, along with Rupnick.

         Santos was charged with first degree assault for victim Mackprang,

second degree assault for victim Tofflemoyer, first degree robbery, and unlawful

imprisonment of Tofflemoyer. A jury convicted Santos of first and second degree

assault, and unlawful imprisonment. The jury also found that Santos was armed

with a deadly weapon when he committed those acts. He was sentenced to 290

months in prison along with a consecutive combined term of 42 months for each

deadly weapon enhancement.

         Santos appeals.

                                     DISCUSSION

         Santos makes two arguments on appeal. First, he contends that there is

insufficient evidence that the knife was at least three inches long for the deadly

weapon special verdict. Second, he argues that the assault and unlawful

imprisonment were the same criminal conduct for the purpose of his offender

score.

         The trial court instructed the jury that a "deadly weapon" includes "[a] knife

having a blade longer than three inches...." Clerk's Papers(CP)at 65. Santos


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No. 75614-1-1/4

contends the evidence is insufficient to support the jury's finding that he was

armed with a knife with at least a three inch blade at the time he committed his

crimes. Thus, he argues that the court erred in imposing the deadly weapon

enhancements.

       Evidence is sufficient when, viewed in the light most favorable to the

State, it supports a rational fact finder's finding of guilt beyond a reasonable

doubt. State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068(1992)(citing State

v. Green, 94 Wn.2d 216, 220-22, 616 P.2d 628(1980)). A claim of insufficiency

admits the truth of the State's evidence and all reasonable inferences drawn from

it. Id. at 201. On review, circumstantial and direct evidence carry equal weight.

State v. Goodman, 150 Wn.2d 774, 781, 83 P.3d 410(2004)(citing State v.

Delmarter, 94 Wn.2d 634,638,618 P.2d 99(1980)).

       At trial, three witnesses testified that they saw Santos' knife. Tofflemoyer

described the knife as a "big bowie knife" that "was probably 20 inches long."

VRP at 703. Bates described the knife as a "bowie knife" that was "probably a

foot and some." VRP at 757. Mackprang described the knife as "over a foot long,

a foot and a half." VRP at 396. While the knife itself was never recovered, officers

found a backpack in the trunk of the defendant's wife's car that contained an

empty knife sheath large enough to cover a large knife.

       Santos argues that because the knife was never recovered and witnesses

described it inconsistently, there is insufficient evidence that the knife was at

least three inches long. We disagree. The witnesses, two of whom Santos cut




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No. 75614-1-1/5

with the knife, consistently testified that the knife was well over three inches long.

This evidence is sufficient to support the deadly weapons enhancement.

       Santos also argues that the unlawful imprisonment and assault of

Tofflemoyer are the same criminal conduct for the purpose of his offender score.

       Under the Sentencing Reform Act of 1981, ch. 9.94A RCW, a trial court's

sentence will not be disturbed unless the sentencing court abuses its discretion

or misapplies the law. State v. Elliott, 114 Wn.2d 6, 17, 785 P.2d 440(1990).

Crimes constitute the same criminal conduct only if they "require the same

criminal intent, are committed at the same time and place, and involve the same

victim." RCW 9.94A.589(1)(a); State v. Graciano, 176 Wn.2d 531, 540, 295 P.3d

219(2013). And, as part of this analysis, courts consider whether one crime

furthered another. Id. The defendant bears the burden to establish that the

crimes constitute the same criminal conduct. Id. at 539.

       The primary issue in this case is whether Santos' criminal intent was the

same when he unlawfully imprisoned and assaulted Tofflemoyer. Santos

contends that it was. Santos argued below, and in his brief on appeal, that the

unlawful imprisonment of Tofflemoyer facilitated the commission of the assault

and thus, were the same criminal conduct. The trial court rejected the argument,

reasoning while it could imagine a scenario where restraining someone with duct

tape could be done to facilitate an assault, that was not the case here. The

evidence in this case showed that Tofflemoyer was being restrained "so that Ms.

Rupnick could run around the apartment and look for ammunition or drugs. . ."

VRP at 1180. Because there was no evidence that the unlawful restraint of


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No. 75614-1-1/6

Tofflemoyer facilitated Santos' assault on him, the court concluded that the

crimes did not share the same intent and, therefore, were not the same criminal

conduct. The trial court's factual finding is well supported by the evidence at trial,

and the conclusion that the crimes were not the same criminal conduct logically

flows from this finding. Thus, there was neither an abuse of discretion nor a

misapplication of the law.

        The sentencing court did not err in finding that the assault and unlawful

imprisonment of Tofflemoyer was not the same criminal conduct.'

        Affirmed.




WE CONCUR:



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          I Until recently, it was clear that the "same intent" in the same criminal çbnduct analysis
did not refer to the particular mens rea element of the particular crime. Rather, the focus was "on
the extent to which the criminal intent, as objectively viewed, changed from one crime to the next.
... [P]art of this analysis will often include the related issues of whether one crime furthered the
other and if the time and place of the two crimes remained the same." State v. Dunaway, 109
Wn.2d 207, 215, 743 P.2d 1237(1987). But in two recent cases involving defendants convicted of
child rape and incest against the same victim, our Supreme Court has held that when determining
"same intent" for same criminal conduct purposes, the test was whether the two crimes have the
same statutory intent. The court held that "objectively, viewed, under the statutes, the two crimes
[incest and child rape] involve separate intent. The intent to have sex with someone related to you
differs from the intent to have sex with a child. Chenoweth's single act is comprised of separate
and distinct statutory criminal intents and therefore under RCW 9.94A.589(1) do not meet the
definition of'same criminal conduct." State v. Chenoweth, 185 Wn.2d 218, 223, 370 P.3d 6
(2016). See also State v. Bobenhouse, 166 Wn.2d 881, 896, 214 P.3d 907(2009). The State
urges us to apply the same test here. We decline to do so for several reasons. First, the test
enunciated in Dunaway is long standing and has not been expressly overruled. Second, the test
enunciated in Chenoweth, has not been used outside the context of cases involving both child
rape and incest. Third, because the State did not raise this issue below the trial court did not have
the opportunity to rule on it. And, finally, because, we would reach the same result in any event.
The statutory intent elements for unlawful imprisonment and second degree assault are not the
same. The former requires that the perpetrator "knowingly restrain" the victim, while the latter
requires that the perpetrator intend to assault the victim. CP at 49; 58.


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