                                                                         FILED
                                                                      APRIL 10, 2018
                                                               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. 33721-9-III
                       Respondent,           )
                                             )
       v.                                    )
                                             )
ZACHARY JOESPH BIGGS,                        )         UNPUBLISHED OPINION
                                             )
                       Appellant.            )

       FEARING, J. — Zachary Biggs appeals his convictions for two counts of rape and

his sentence for the two convictions. We affirm the convictions and the sentence, except

that we remand for a determination of legal financial obligations.

                                         FACTS

       This prosecution involves a rape of a wife by her husband. Zachary and Stacey

Biggs were married with children. In November 2013, Stacey separated from Zachary

from concern for her husband’s aberrant behavior. Zachary had recently lied to the

Biggs’ neighbors and informed them that Zachary, Stacey, and their newborn baby had

recently been raped.
No. 33721-9-III
State v. Biggs


        In December 2013, Stacey Biggs filed for divorce and procured a protection order

to preclude Zachary from contacting her. Zachary then moved to his mother’s abode.

Stacey occasionally saw Zachary thereafter. Zachary behaved normal and polite during

these encounters. Stacey saw Zachary at a gas station, and, to her surprise, he acted

gentlemanly. At the filling station, Zachary told Stacey that Zachary’s mother had fallen

ill and that he consequently had not been eating.

        On the afternoon of December 10, 2013, Stacey Biggs delivered her child to

Zachary’s mother’s house. Stacey noted that Zachary’s mother presented in fine health,

contrary to Zachary’s claim, but the home lacked for food. Stacey left but confronted

guilt for not bringing spare groceries to Zachary. Stacey returned to her mother-in-law’s

home bearing groceries. In the meantime, Zachary’s mother had departed the house for

work.

        Stacey Biggs arrived at her mother-in-law’s residence at 8:00 p.m. on December

10. As Stacey approached the back door, Zachary opened the door. Zachary inquired of

Stacey: “‘What are you doing here?’” Report of Proceedings (RP) at 191. Stacey

replied: “‘Oh, I brought you some food.’” RP at 191. Zachary interjected: “‘Are the

boys with you?’” RP at 191. Stacey responded: “‘No.’” RP at 191. Zachary instantly

placed a chokehold on Stacey’s neck and threw her to the floor. He pounced on Stacey

and yelled in her face: “‘Why are you here?’” RP at 191. “‘Who sent you?’” RP at



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State v. Biggs


191. Zachary demanded Stacey enter his room. Once there, Zachary shut and locked the

door.

        Zachary Biggs flung Stacey on the bed and repeatedly instructed her to remain

silent. Zachary, with his forearm, applied pressure to Stacey’s neck while she lay trapped

on the bed. Zachary held a machete and again interrogated Stacey as to who sent her to

his mother’s home. He repeatedly threatened her. Stacey pleaded with Zachary to let her

go home. In trial testimony, Stacey recalled Zachary menacingly sneering:

               You ain’t going home. I’m going to kill you. I’ll have the kids. I’ll
        hide your body before this is all over and done with, and, before anybody
        knows you’re missing, I’ll be gone and so will you.

RP at 194.

        While entrapping Stacey Biggs on the bed, Zachary claimed that individuals in

masks had impersonated him. Zachary pushed and pulled on Stacey’s lips, nose, and

eyes, and dug into her face. Zachary declared that he needed to confirm the body he

attacked was Stacey. Zachary also averred that he witnessed Stacey performing oral sex

on other men. Zachary claimed to have been raped three times, and he informed Stacey

that she would be dead by night. Zachary then held a large sharpening stone in his right

hand and threatened to bash Stacey’s face if she did not cooperate with him.

        Zachary Biggs demanded sex from Stacey while holding a machete to her neck.

Zachary grabbed Stacey’s hair and forced her face to his groin. Stacey performed oral

sex until nearly retching. During the sexual assault, Zachary named the women with

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No. 33721-9-III
State v. Biggs


whom he engaged in sexual conduct during the couple’s separation. Zachary released

Stacey.

       After releasing Stacey from his grip, Zachary Biggs carped to Stacey: “‘[y]ou’re

not doing it like I showed you.’” RP at 202. Zachary regrabbed Stacey by her hair and

placed her on the hard floor. Zachary uttered: “‘[i]f you don’t make love to me like my

wife I’m going to stab you.’” RP at 203. Zachary then vaginally raped Stacey on the

floor. Zachary reached to retrieve his machete. Stacey pleaded with him that she had

been in a car accident and intercourse on a hard floor hurt her back. She cried in pain.

After threatening her again, Zachary allowed Stacey to move to the bed.

       Stacey Biggs submitted to Zachary again while the two lay on the bed a second

time. Stacey did not think she would leave the bedroom alive.

       After nearly three hours, Zachary Biggs ended the assault and allowed Stacey to

dress. Zachary asked Stacey to drive him to a store so he could purchase a cigar. Stacey

complied. At the store, Zachary threatened Stacey with death if she reported his conduct.

He then acted as if checking his watch, although not wearing one, and remarked:

               Yeah, about this time tomorrow I’ll probably be in jail. And that’s
       all right; I’ll do my time. ‘Cause when I get out I’ll come find you, I’ll
       sneak in the middle of the night and I’ll slice your throat. Or I’ll come out
       to your work, wait for you to get off and run your ass and your car into the
       river and I’ll kill you.

RP at 209-10.

       On December 11, 2013, Stacey Biggs told coworkers of the rape after her

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No. 33721-9-III
State v. Biggs


colleagues inquired about her disquietude. Coworkers reported the rape to law

enforcement.

                                       PROCEDURE

       The State of Washington charged Zachary Biggs with two counts of rape in the

first degree and one count of felony violation of a domestic violence court order. The

charges alleged that Biggs bore a deadly weapon when committing the crimes against a

family or household member.

       Dr. Daniel Lord-Flynn of Eastern State Hospital conducted a competency

examination of Zachary Biggs and determined that Zachary possessed capacity to

understand the court proceedings and participate in his own defense. Dr. Lord-Flynn

diagnosed Zachary with a personality disorder. Clerk’s Papers (CP) at 63.

       Zachary Biggs defended the charges on the ground that Stacey engaged in

consensual sex and lied about a rape. Biggs waived his right to a jury trial. The trial

court convicted Biggs on all three counts.

       During sentencing, the trial court ruled the two counts of rape to be distinct acts of

criminal conduct and ordered the sentences for the two counts of rape to run

consecutively pursuant to RCW 9.94A.589(1)(b). The trial court distinguished from the

assault on the hard floor and the assault later on the bed. According to the trial court,

Zachary Biggs, after releasing Stacey from the floor, possessed the opportunity to end his



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No. 33721-9-III
State v. Biggs


attack, but renewed the assault on the bed. The trial court sentenced Biggs to 309

months’ confinement.

       At sentencing, the trial court imposed a $500 crime victim assessment, $1,830 in

court costs, $750 in fees for a court appointed attorney, a $100 domestic violence

assessment, a $100 DNA collection fee, and a $1,000 fine for a total of $4,280. Before

assessing the legal financial obligations, the trial court did not inquire about Zachary

Biggs’ income, assets, and debts.

                                LAW AND ANALYSIS

       On appeal, Zachary Biggs raises three assignments of error. First, his trial counsel

performed ineffectively by failing to raise a defense of diminished capacity. Second, the

trial court committed error when refusing to consider the two counts of rape as the same

criminal misconduct for purposes of sentencing. Third, the trial court failed to conduct

an individualized inquiry as to his ability to pay discretionary legal financial obligations.

                             Ineffective Assistance of Counsel

       Zachary Biggs first argues that counsel neglectfully failed to raise a diminished

capacity defense. Diminished capacity allows a defendant to undermine a specific

element of the offense, a culpable mental state, by showing that a given mental disorder

had a specific effect by which his ability to entertain that mental state was diminished.

State v. Clark, 187 Wn.2d 641, 650, 389 P.3d 462 (2017). The defendant must raise the

defense of diminished capacity before trial. CrR 4.7(b)(1), (2)(xiv); State v. Clark, 187

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No. 33721-9-III
State v. Biggs


Wn.2d at 651. The defense must obtain a corroborating expert opinion and disclose that

evidence to the prosecution pretrial, thereby giving the State a reasonable opportunity to

decide whether to obtain its own evaluation. CrR 4.7(b)(1), (b)(2)(viii), (g); State v.

Clark, 187 Wn.2d at 651. Diminished capacity requires an expert diagnosis of a mental

disorder and expert opinion testimony connecting the mental disorder to the defendant’s

inability to form a culpable mental state in a particular case. State v. Clark, 187 Wn.2d at

651.

       If specific intent or knowledge is an element of the charged crime, the trier of fact

may consider diminished capacity in determining whether the defendant had the capacity

to form the requisite mental state. RCW 9A.44.040; State v. Thomas, 123 Wn. App. 771,

779, 98 P.3d 1258 (2004). First degree rape contains no mens rea element. State v.

DeRyke, 149 Wn.2d 906, 913, 73 P.3d 1000 (2003). Therefore, Zachary Biggs did not

have diminished capacity available as a defense.

       Zachary Biggs argues that State v. Walden, 69 Wn. App. 183, 847 P.2d 956 (1993)

stands for the proposition that he must still possess a culpable mental state to render his

conduct a crime. Nevertheless, Walden involves attempted rape and rape in the second

degree. John Walden did not raise diminished capacity. Walden lacks relevance.

       Courts apply a two-pronged test to determine if counsel provided effective

assistance: (1) whether counsel performed deficiently, and (2) whether the deficient

performance prejudiced the defendant. Strickland v. Washington, 466 U.S. 668, 690-92,

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No. 33721-9-III
State v. Biggs


104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). If a defendant fails to establish one prong of

the test, this court need not address the remaining prong. State v. Hendrickson, 129

Wn.2d 61, 78, 917 P.2d 563 (1996).

       Since diminished capacity does not constitute a defense in a first degree rape

charge, Zachary Biggs’ trial counsel could not have performed ineffectively. We also

note that the expert who examined Biggs never concluded Biggs suffered from

diminished capacity.

                                 Same Criminal Conduct

       Zachary Biggs does not argue that he could not be convicted of two counts of rape.

He contends, however, that his convictions for two counts of rape in the first degree

constituted the same criminal conduct for purposes of sentencing.

       RCW 9.94A.589(1)(a) and (b) declare:

              (1)(a) Except as provided in (b), (c), or (d) of this subsection,
       whenever a person is to be sentenced for two or more current offenses, the
       sentence range for each current offense shall be determined by using all
       other current and prior convictions as if they were prior convictions for the
       purpose of the offender score: PROVIDED, That if the court enters a
       finding that some or all of the current offenses encompass the same
       criminal conduct then those current offenses shall be counted as one crime.
       Sentences imposed under this subsection shall be served concurrently.
       Consecutive sentences may only be imposed under the exceptional sentence
       provisions of RCW 9.94A.535. “Same criminal conduct,” as used in this
       subsection, means two or more crimes that require the same criminal intent,
       are committed at the same time and place, and involve the same victim. . . .
              (b) Whenever a person is convicted of two or more serious violent
       offenses arising from separate and distinct criminal conduct, the standard
       sentence range for the offense with the highest seriousness level under

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No. 33721-9-III
State v. Biggs


       RCW 9.94A.515 shall be determined using the offender’s prior convictions
       and other current convictions that are not serious violent offenses in the
       offender score and the standard sentence range for other serious violent
       offenses shall be determined by using an offender score of zero. The
       standard sentence range for any offenses that are not serious violent
       offenses shall be determined according to (a) of this subsection. All
       sentences imposed under this subsection (1)(b) shall be served
       consecutively to each other and concurrently with sentences imposed under
       (a) of this subsection.

Since the trial court convicted Zachary Biggs of two violent crimes, he remained subject

to consecutive sentences, but, if the two crimes constituted the same criminal conduct, we

would lower his offender score.

       RCW 9.94A.589(1)(a) demands that the two crimes constitute the same criminal

intent, entail the same time and place, and involve the same victim. State v. Lessley, 118

Wn.2d 773, 777, 827 P.2d 996 (1992). The defendant must establish that the crimes

constitute the same criminal conduct because a finding by the sentencing court of same

criminal conduct always favors the defendant. State v. Johnson, 180 Wn. App. 92, 104,

320 P.3d 197 (2014). A trial court’s determination of what constitutes the same criminal

conduct for purposes of calculating an offender score will not be reversed absent an abuse

of discretion or misapplication of the law. State v. Walden, 69 Wn. App. at 188 (1993).

       The two rape charges against Zachary Biggs covered the same victim, time, and

place. Zachary Biggs contends that the two crimes also comprised the same continuous

criminal intent to rape. Zachary Biggs cites State v. Tili, 139 Wn.2d 107, 123, 985 P.2d

365 (1999). According to State v. Tili: “[t]he relevant inquiry for the intent prong is to

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No. 33721-9-III
State v. Biggs


what extent did the criminal intent, when viewed objectively, change from one crime to

the next.” 139 Wn.2d at 123.

       In State v. Tili, Fonotaga Tili broke into the victim’s home and violently beat her

with a metal pan. Tili threw his victim to the floor and anally, vaginally, and digitally

raped her. The attack lasted two minutes. The trial court convicted the defendant of

three counts of rape and ruled that each count constituted separate criminal conduct for

purposes of RCW 9.94A.589. The Supreme Court reversed and held that Tili’s intent

remained the same throughout the attack. We distinguish Fonotaga Tili’s rapes from

Zachary Biggs’ rapes. Tili attacked his victim for two minutes. Biggs variously

controlled his wife with two different weapons for three hours.

       The Supreme Court, in State v. Tili, distinguished its facts from State v. Grantham,

84 Wn. App. 854, 932 P.2d 657 (1997), wherein this court ruled a rape to not be the same

criminal conduct. The Tili court reasoned:

              [t]he evidence in Grantham supported a conclusion that the criminal
       episode had ended with the first rape: “Grantham, upon completing the act
       of forced anal intercourse, had the time and opportunity to pause, reflect,
       and either cease his criminal activity or proceed to commit a further
       criminal act.” . . .
              In contrast to the facts in Grantham, Tili’s three penetrations of L.M.
       were continuous, uninterrupted, and committed within a much closer time
       frame–approximately two minutes. This extremely short time frame,
       coupled with Tili’s unchanging pattern of conduct, objectively viewed,
       renders it unlikely that Tili formed an independent criminal intent between
       each separate penetration.

State v. Tili, 139 Wn.2d at 123-24 (citing Grantham, 84 Wn. App. at 856-57).

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No. 33721-9-III
State v. Biggs



       Zachary Biggs’ rapes parallel the misconduct of James Grantham, not the

misbehavior of Fonotaga Tili. Grantham and Biggs paused the attacks and gained an

opportunity to reflect and either cease criminal activity or proceed. At the onset of his

attack, Zachary physically forced Stacey to orally copulate until Stacey nearly vomited.

Zachary released her and, after pausing, directed Stacey to the floor by threatening to kill

her. He placed the machete on the bed. When Stacey lay on the floor, Zachary raped her

vaginally. When Stacey complained of back pain, Zachary released her once again. He

paused and could have ended the assault. He directed Stacey to the bed where he raped

her again. The State could have charged and convicted Biggs of three separate criminal

acts of rape. The trial court did not abuse its discretion in finding the two counts of rape

to constitute dissimilar criminal conduct.

                                Legal Financial Obligations

       The trial court imposed a $500 crime victim assessment, $1,830 in court costs,

$750 in fees for a court appointed attorney, a $100 domestic violence assessment, a $100

DNA collection fee, and a $1,000 fine for a total of $4,280. $3,580 of this sum

constitutes discretionary legal financial obligations. Zachary Biggs claims the trial court

failed to consider his ability to pay before imposing legal financial obligations. He did

not object to the imposition of any of the obligations at sentencing.




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State v. Biggs


       RAP 2.5 allows this court to refuse review of any claim of error not raised in the

trial court. The Supreme Court, however, in State v. Blazina, 182 Wn.2d 827, 832, 344

P.3d 680 (2015), bestowed discretion on this court to address the imposition of

discretionary legal financial obligations despite no objection before the trial court.

       The record must reflect that the trial court made the individualized inquiry into the

defendant’s current and future ability to pay. State v. Blazina, 182 Wn.2d at 838. This

inquiry should address a defendant’s incarceration, job status, debts, or other indicators of

ability to pay. State v. Malone, 193 Wn. App. 762, 766, 376 P.3d 443 (2016). The State

concedes that the sentencing court did not inquire into Zachary Biggs’ financial situation

prior to imposition of obligations. For this reason and because of the amount of the

obligations imposed, we remand to the trial court to reconsider assessment of

discretionary legal financial obligations.

                              Statement of Additional Grounds

       Zachary Biggs filed additional grounds for this court’s review and contends that

the trial court violated his right to a jury trial. He asserts that he never agreed to a bench

trial and his counsel never discussed with him the signing of waiver of a jury trial. The

record shows Biggs affirmatively waived his right to a jury trial. The record does not

intimate that his counsel failed to properly advise him before waiving the right.




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State v. Biggs


                                     CONCLUSION

      Zachary Biggs' counsel did not ineffectively represent Biggs. We affirm Biggs'

convictions for rape. We also affirm his sentence for two separate acts of rape, but

remand for reassessment of legal financial obligations.

      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:



Siddoway, J.        ·                        Pennell, A.CJ.




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