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      IN CLERICS OJIFICE
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     DAre  MAR      7   2~ho

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       IN Tl-IE SUPI{EME COURT OF TI-lE STATE OF WASHINGTON



   STATE OF WASHINGTON,                    )
                                           )     No. 91366-8
                           Respondent,     )
                                           )
           v.                              )     EnBanc
                                           )
   CHAD CURTIS CHENOWETH,                  )
                                           )
                           Petitioner.     )
                                           )     Filed          MAR 1 7   2.~·m



           JOHNSON, J.- This case involves whether the crimes of rape of a child

   and incest based on a single act are, as a matter of law, considered the "same

   criminal conduct" under the Sentencing Reform Act of 1981, chapter 9.94A RCW,

   for purposes ofRCW 9.94A.589(1)(a) when determining an offender score to

   determine a standard sentencing range. The Court of Appeals, in affirming the trial

   court, held_ that rape of a child and incest are not the same criminal conduct for

   purposes of sentencing. We affirm the Court of Appeals.

                                FACTS AND PROCEDURAL HISTORY

           Chad Chenoweth was convicted of six counts of third degree child rape of

   his daughter and six counts of first degree incest. The incest counts and the rape of

    a child counts were based on six incidents, each involving a single act. At
State v. Chenoweth (Chad Curtis), No.         91366~8



sentencing, Chenoweth moved the court to find the incest counts were the same

criminal conduct as the corresponding rape of a child count. The trial court

disagreed, relying on State v. Bobenhouse, 166 Wn.2d 881,214 P.3d 907 (2009),

and counted each conviction separately for the purposes of sentencing, concluding

the offender score exceeded nine. 1 Sentences for each conviction were ordered to

be served concurrently. Chenoweth appealed, and the Court of Appeals affirmed

his sentence, also relying on Bobenhouse. State v. Chenoweth, noted at 185 Wn.

App. 1041 (20 15). This court granted review on the same criminal conduct issue.

State v. Chenoweth, 183 Wn.2d 1024,355 P.3d 1154 (2015).

                                           ANALYSIS

       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." RCW 9.94A.589(1)(a). Unless all elements are present, the offenses must

be counted separately. State v. Porter, 133 Wn.2d 177, 181, 942 P.2d 974 (1997).

Deciding whether crimes involve the same time, place, and victim often involves

determinations of fact. In keeping with this         fact~based   inquiry, we have repeatedly


       1
          Both the State and the trial court noted that even if the court had considered rape and
incest to be the same criminal conduct in this case, Chenoweth's standard range would not be
affected. Because a prior or other current sex offense has a score of three, under either
calculation Chenoweth's offender score exceeds nine, the maximum offender score available.
Both offenses are also seriousness level VI. RCW 9.94A.515. Thus, his sentencing range is 77-
102 months in any event.


                                                 2
State v. Chenoweth (Chad Curtis), No. 91366-8


observed that a court's determination of same criminal conduct will not be

disturbed unless the sentencing court abuses its discretion or misapplies the law.

See State v. Elliott, 114 Wn.2d 6, 17, 785 P.2d 440 (1990) (affirming the

petitioner's sentence where the same criminal conduct determination involved

"neither a clear abuse of discretion nor a misapplication of the law").

      Chenoweth argues that child rape and incest, based on a single act, as a

matter of law constitute the same criminal conduct for purposes of calculating his

offender score. Multiple current offenses are considered the same criminal

conduct, and thus as a matter of law are collectively counted as one crime in the

offender score, when 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).

      This statutory inquiry arises generally in cases where a defendant commits

only one act, as occurred in this case. That means the incident(s) occurred at the

same time and place and against the same victim, leaving only the intent element.

In the present case, only the intent element is at issue; the trial court determined

that the offenses of rape and incest were based on the same acts with the same

victim at the same time. The trial court, in viewing the respective statutes,

determined the intent differed for the crimes of rape of a child and incest.




                                           3
State v. Chenoweth (Chad Curtis), No. 91366-8


      We have held-for purposes of a double jeopardy analysis and in examining

whether multiple offenses constitute the same criminal conduct-that rape of a

child and incest are separate crimes because they involve distinct criminal intents.

See, e.g., Bobenhouse, 166 Wn.2d at 896; State v. Calle, 125 Wn.2d 769, 780, 888

P.2d 155 (1995). In Bobenhouse, the defendant was convicted of three counts of

rape of a child in the first degree and two counts of incest in the first degree. We

held that these offenses do not constitute the same criminal conduct for sentencing

purposes:

             Bobenhouse further argues the trial court abused its discretion
      when it did not find that the underlying rape and incest charges
      (stemming from forcing the children to have sexual intercourse with
      each other) constituted the "same criminal conduct" for purposes of
      sentencing. Bobenhouse would have this court hold that first degree
      child rape and first degree incest involve the same criminal intent:
      sexual intercourse. But this argument has no merit. We have previously
      held that "the Legislature intended to punish incest and rape as separate
      offenses, even though committed by a single act." State v. Calle, 125
      Wn.2d 769, 780, 888 P.2d 155 (1995). Bobenhouse's argument must
      fail in light of the precedent set by our decision in Calle.

Bobenhouse, 166'Wn.2d at 896.

       In the present case, both the trial court and the Court of Appeals relied on

Bobenhouse in determining that the rape and incest convictions did not involve the

same intent. Chenoweth points out that the Calle opinion relied on in Eo henhouse

appears to somewhat conflate the double jeopardy analysis with the same criminal


                                           4
State v. Chenoweth (Chad Curtis), No. 91366-8


conduct analysis. See State v. French, 157 Wn.2d 593, 611-12, 141 P.3d 54 (2006)

(holding that double jeopardy and same criminal conduct analyses are distinct and

separate inquiries).

      The two analyses are similar. Under double jeopardy analysis, we determine

whether one act can constitute two convictions. Under the same criminal conduct

analysis, we determine whether two convictions warrant separate punishments.

Even though they may be separate, albeit similar, analyses, a determination that a

conviction does not violate double jeopardy does not automatically mean that it is

not the same criminal conduct. See State v. Tili, 139 vVn.2d 107, 124, 985 P.2d 365

(1999) (finding defendant's three first degree rape convictions did not violate

double jeopardy but were part of the same criminal conduct, the court held that

Tili's criminal intent to commit several rapes did not change from one act of

penetration to the next). Since Tili involved a single statutory crime-rape-it is

unhelpful here where two crimes are involved.

       Looking at the statutes, incest and rape of a child do not have the same

statutory criminal intent, whether involving multiple acts or the same act:

              .9 A.44.079 Rape of a child in the third degree. ( 1) A person is
                               in
       guilty of nipe of a child the third degree when the person has sexual
       intercourse with another who is at least fourteen years ol~ but less
       than sixteen years old and not married to the perpetrator and the
       perpetrator is at least forty-eight months older than the victim.



                                          5
State v. Chenoweth (Chad Curtis), No. 91366-8


              9A.64.020 Incest. ( 1)(a) A person is guilty of incest in the first
      degree if he or she engages in sexual intercourse with a person whom
      he or she knows to be related to him or her, either legitimately or
      illegitimately, as an ancestor, descendant, brother, or sister of either
      the whole or the half blood.

      Chenoweth argues that his criminal intent was to have sex with his daughter

and thus rape of a child and incest required the same intent. However, objectively

viewed, under the statutes, the two crimes 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)(a) do not meet the

de±lnition of "same criminal conduct."

      Chenoweth also argues that the court in Bobenhouse did not reach the issue

of whether rape of a child and incest constitute the same criminal conduct for

sentencing purposes, relying on a section in the conclusion of the opinion that

states, "Any error in not treating Bobenhouse's crimes as the 'same criminal

conduct' was harmless." Bobenhouse, 166 Wn.2d at 896-97. Chenoweth argues

that Bobenhouse recognized that counting the offenses separately was error.

However, viewed in the context of the statutory analysis and conclusion in

Bobenhouse, the "harmless" reference was a reflection of the Court of Appeals'

determination that Bobenhouse's offender score exceeded nine and that any



                                            6
State v. Chenoweth (Chad Curtis), No. 91366-8


holding reached by the Court of Appeals with regard to same criminal conduct

would have no effect on his offender score. 2 Chenoweth's argument also disregards

the primary analysis in Bobenhouse that was taken from the holding in Calle: rape

and incest are separate crimes and can be punished separately. Calle, 125 Wn.2d at

780.

       As further support for this conclusion, the legislative history supports the

"conclusion that the Legislature intended to punish incest and rape as separate

offenses, even though committed by a single act." Calle, 125 Wn.2d at 780. We

have held that where legislative intent is clearly indicated, that intent controls the

offender score. See Calle, 125 Wn.2d at 778. Looking at the criminal code,

"incest" and "rape of a child" are defined in separate sections-family offenses

and sex offenses. They have existed as separate crimes since before statehood.

Reasons exist why they could be punished separately-incest being a particularly

egregious crime that attacks the very foundation of the family. And, as our cases

recognize, no double jeopardy concerns exist in this type of situation where a



       2
          "But we do not need to pass on whether the sentencing judge abused his discretion or
not here. Mr. Bobenhouse's current offender score is 20 for the child rape convictions and 17 for
the incest convictions. An amended sentence that reduced his offender score by 6 (counting the
two incest convictions as three points each, former RCW 9.94A.525(16) (2002)) would still not
make his ofiender score be less than 9, which is the top of the range. RCW 9.94A.525(5)(a)(i).
Thus, even assuming error, any error would be harmless." State v. Bobenhouse, 143 Wn. App.
315,330, 177 P.3d 209 (2008), aff'd, 166 Wn.2d 881.



                                                7
State v. Chenoweth (Chad Curtis), No. 91366-8


sentencing judge imposes separate sentences for each conviction as occurred here.

It makes little sense to conclude that an otherwise valid conviction and sentence

cannot be "counted" in determining an offender score.

      We hold that the same act constituting rape of a child and incest is not the

smile criminal conduct for purposes of sentencing.

                                    CONCLUSION

      A straightforward analysis of the statutory criminal intent for rape of a child

and incest idemtifies separate and distinct "objective intent." We therefore hold that

the two crimes are not the same criminal conduct for purposes of sentencing. We




                                           8
State v. Chenoweth (Chad Curtis), No. 91366-8


affirm the Court of Appeals.




WE CONCUR:




                                       9
State v. Chenoweth (Chad C.)




                                       No. 91366-8


      MADSEN, C.J. (dissenting)-The majority holds that because the statutes under

which defendant was convicted, RCW 9A.44.079 (rape of a child in the third degree) and

RCW 9A.64.020(1) (incest in the first degree), do not share the same statutory intent

elements, defendant Chad Chenoweth's convictions must necessarily fail to qualify as the

"same criminal conduct" under RCW 9.94A.589(l)(a) for sentencing purposes. I

disagree. For the reasons discussed below, in my view, the circumstances of this case

warrant counting the six pairs of incest and child rape convictions, based on six separate

incidents of sexual intercourse, as six single crimes for sentencing purposes under RCW

9.94A.589. Accordingly, I dissent.

                                        Discussion

       The majority holds that because the statutes under which Chenoweth was charged,

RCW 9A.44.079 (defining third degree child rape) and RCW 9A.64.020(1) (defining first

degree incest), contain different elements, and thus different "statutory criminal intent,"

such distinction necessarily precludes any finding of same criminal conduct. See
No. 91366-8
(Madsen, C.J., dissenting)


majority at 5-6. I disagree. 1 The sentencing statute at issue here, RCW 9.94A.589(1)(a),

states in pertinent part:

       [W]henever 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 ....
       "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.

Our cases have repeatedly held that the intent inquiry turns on objective criminal purpose.

Offenses have the same criminal intent when, viewed objectively, the intent does not

change from one offense to the next. State v. Dunaway, 109 Wn.2d 207, 215, 743 P.2d

1237, 749 P.2d 160 (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. Adame, 56 Wn. App. 803, 811, 785 P.2d 1144, review

denied, 114 Wn.2d 1030 (1990); see also State v. Kloepper, 179 Wn. App. 343, 356-57,

317 P.3d 1088, review denied, 180 Wn.2d 1017 (2014) (same); State v. Davis, 174 Wn.

App. 623, 642, 300 P.3d 465, review denied, 178 Wn.2d 1012 (2013) (same). 2 "In

determining whether multiple crimes constitute the same criminal conduct, courts


 1
   While the presence of different statutory "elements" plays a limited role in the context of a
 double jeopardy analysis, see State v. Calle, 125 Wn.2d 769,777-79, 888 P.2d 155 (1995),
 double jeopardy is not the basis of Chenoweth's challenge here.
 2
   Courts have also looked at whether one crime furthers the other or whether the offenses were
 part of a recognized plan or scheme. Dunaway, 109 Wn.2d at 215 (furtherance test); State v.
 Lewis, 115 Wn.2d 294, 302, 797 P.2d 1141 (1990) (same scheme or plan).


                                                 2
No. 91366-8
(Madsen, C.J., dissenting)


consider 'how intimately related the crimes 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)).

        This court thoroughly analyzed application of this statute in State v. Tili, 139

Wn.2d 107, 985 P.2d 365 (1999). 3 But the majority dismisses Tili as "unhelpful" because

it addressed a single crime that was repeated, whereas the current case involves two

crimes. Majority at 5. But while Tili is factually different than the present case, in my

view Tili's discussion of how to conduct the same criminal conduct analysis is instructive

here.

        As Tili noted, "For multiple crimes to be treated as the 'same criminal conduct' at

sentencing, the crimes must have ( 1) been committed at the same time and place; (2)

involved the same victim; and (3) involved the same objective criminal intent." Tili, 139

Wn.2d at 123 (citing State v. Palmer, 95 Wn. App. 187, 190, 975 P.2d 1038 (1999); State

v. Walden, 69 Wn. App. 183, 187-88, 847 P.2d 956 (1993); former RCW 9.94A.400(1)(a)

(1996)). "The absence of any one of these [three] prongs prevents a finding of same

criminal conduct." State v. Porter, 133 Wn.2d 177, 181,942 P.2d 974 (1997); see also

State v. Vike, 125 Wn.2d 407, 410, 885 P.2d 824     (1~94).   We review a trial court's same


3
  Tili addressed former RCW 9.94A.400(1)(a) (1996), which was recodified without substantive
 changes in 2001 as RCW 9.94A.589(1)(a). See LAWS OF 2001, ch. 10, § 6 (effective July 1,
 2001); State v. Mutch, 171 Wn.2d 646, 654, 254 P.3d 803 (2011).


                                               3
No. 91366-8
(Madsen, C.J., dissenting)


criminal conduct determination for abuse of discretion or misapplication of the law. Tili,

139 Wn.2d at 122.

       In Tili, the offenses at issue were three first degree rapes that occurred over a two-

minute time period. The rapes involved the same victim, occurred at the same place, and

were nearly simultaneous in time. The issue was whether the three acts of rape involved

the same objective criminal intent. Id. at 119, 123. Observing that "[t]he relevant inquiry

for the intent prong is to what extent did the criminal intent, when viewed objectively,

change from one crime to the next," the Tili court analyzed and compared two Court of

Appeals decisions demonstrating how such inquiry is to be conducted. See id. at 123-24

(discussing State v. Grantham, 84 Wn. App. 854, 932 P.2d 657 (1997), and Walden, 69

Wn. App. 183); see also State v. Williams, 135 Wn.2d 365, 368, 957 P.2d 216 (1998)

(dispositive question regarding same criminal intent prong is extent to which the criminal

intent, objectively viewed, changed from one crime to the next); Vike, 125 Wn.2d at 411

(same).

        The Tili court distinguished Grantham, which affirmed the trial court's finding

that two rapes were not the same criminal conduct for sentencing purposes. See Tili, 139

Wn.2d at 123-24 (discussing Grantham, 84 Wn. App. at 860-61). The evidence in

 Grantham showed that "the criminal episode had ended with the first rape" (forced anal

 intercourse) and thereafter the defendant had the "'time and opportunity to pause, reflect,

 and either cease his criminal activity or proceed to commit a further criminal act."' !d. at

 123 (quoting Grantham, 84 Wn. App. at 859). After raping his victim, Grantham stood



                                               4
No. 91366-8
(Madsen, C.J., dissenting)


over her and threatened her; then began to argue with her and physically assaulted her in

order to force her to perform oral sex. Id. at 123-24. The Tili court observed that

"Grantham was able to form a new criminal intent b.efore his second criminal act because

his 'crimes were sequential, not simultaneous or continuous."' Id. at 124 (emphasis

added) (quoting Grantham, 84 Wn. App. at 856-67).

       The Tili court contrasted Grantham's circumstances to the three penetrations at

issue in Tili, which were "continuous, uninterrupted, and committed within a much closer

time frame-approximately two minutes." Id. Tili observed that "[t]his 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[/crime]." Id. (emphasis added).

       The Tili court then discussed Walden, observing that the defendant there was

convicted of crimes involving fellatio and attempted rape where defendant in quick

succession forced a 13-year-old boy to perform oral sex on defendant and then attempted

to anally penetrate the boy. See id.; Walden, 69 Wn. App. at 184. Tili observed, "In

determining whether the two acts involved the 'same criminal conduct' ... the Walden

court held that, '[w ]hen viewed objectively, the criminal intent of the conduct comprising

the two charges is the same: sexual intercourse. Accordingly, the two crimes ...

furthered a single criminal purpose."' 139 Wn.2d at 124 (emphasis added) (quoting

 Walden, 69 Wn. App. at 188); see also State v. Porter, 133 Wn.2d 177, 186, 942 P.2d

 974 (1997) (remanding for resentencing where     evid~nce   indicated defendant's intent,



                                              5
No. 91366-8
(Madsen, C.J., dissenting)


objectively viewed, remained the same from one drug delivery to the next because the

deliveries were part of a continuing, uninterrupted sequence of conduct); see also Vike,

125 Wn.2d at 412-13 (concurrent counts involving simultaneous simple possession of

more than one controlled substance encompass the same criminal conduct for sentencing

purposes).

       Analogizing Walden to its facts, the Tili court held that "Tili's unchanging pattern

of conduct, coupled with an extremely close time frame, strongly supports the conclusion

that his criminal intent, objectively viewed, did not change from one penetration to the

next." 139 Wn.2d at 124 (emphasis added). The Tili court held that the trial court abused

its discretion in failing to treat Tili's three first degree rape convictions as one crime for

sentencing purposes and remanded for resentencing. Id. at 124-25, 128.

       In my view, Tili's analysis for determining the intent prong of the same criminal

conduct inquiry applies here as well. In each of the six incidents from which

Chenoweth's convictions for a pair of charges for rape and incest arose, a single act of

sexual intercourse served as the basis for the corresponding incest and rape convictions.

Because only a single act occurred, the corresponding incest and rape crimes necessarily

occurred simultaneously and each crime was based on the same (unbroken, continuous,

and unchanging) conduct. Objectively viewed, the criminal intent of the conduct

comprising each pair of charges for each of the six incidents was the same. For each of

the six criminal episodes, Chenoweth had a single criminal purpose: sexual intercourse

with his daughter. Accordingly, consistent with Tili, Walden, and Grantham, I would



                                                6
No. 91366-8
(Madsen, C.J., dissenting)


hold that each pair of charges for first degree incest and third degree child rape shared the

same criminal intent, victim, time, and place, thereby constituting the same criminal

conduct. See RCW 9.94A.589(l)(a) ("current offenses [that] encompass the same

criminal conduct ... shall be counted as one crime"); see also RCW 9.94A.525(5)(a)(i)

("Prior offenses which were found, under RCW 9.94A.589(1)(a), to encompass the same

criminal conduct, shall be counted as one offense, the offense that yields the highest

offender score." (emphasis added)). Thus, for sentencing purposes, Chenoweth's

offender score should be based on his 6 current incest offenses and not all 12 of his

convictions.

       I acknowledge that applying RCW 9.94A.589(1)(a) and adjusting Chenoweth's

offender score, as above described, will still yield an offender score above 9. 4 On this

point, I agree with the majority. See majority at 2 n:l. Nevertheless, this court should

clarify the appropriate same criminal conduct analysis for use in future cases.

       Here, Chenoweth's objective criminal purpose was to have sexual intercourse with

his daughter. Objectively viewed, his criminal intent was the same for each pair of

charged crimes (i.e., incest and child rape) based on each instance of sexual intercourse.

A finding of same criminal conduct is warranted. See Dunaway, 109 Wn.2d at 217

(kidnapping and robbery of a single victim encompassed same criminal conduct requiring

4
 See RCW 9.94A.525(17) ("If the present conviction is for a sex offense, ... count three points
for each adult and juvenile prior sex offense conviction."), .030(47)(a)(ii) ("sex offense" includes
a violation ofRCW 9A.64.020 (defining incest)), .515 (indicating RCW 9A.64.020(1) (first
degree incest) has a "Seriousness Level" of "VI" for offender score calculation purposes), .51 0
(offender score calculation grid designating a standard range of 77-102 months for an offense
with a seriousness level ofVI and an offender score of9+).

                                                 7
No. 91366-8
(Madsen, C.J., dissenting)


treatment as one crime for sentencing purposes); see also State v. Callicott, 118 Wn.2d

649, 668-69, 827 P.2d 263 (1992) (reiterating that under Dunaway "if the defendant's

criminal purpose did not change from one offense to another, then the offenses

encompass the same criminal conduct").

       Contrary to the majority's view, the presence or absence of identical statutory

mens rea elements is not the linchpin of this court's criminal intent inquiry. As this court

explained in State v. Haddock, the intent inquiry "focuses on the extent to which the

offender's 'criminal intent, as objectively viewed, changed from one crime to the next."'

141 Wn.2d 103, 112-13, 3 P.3d 733 (2000) (quoting Dunaway, 109 Wn.2d at 215).

"Thus, counts with identical mental elements, if committed for different purposes, would

not be considered the 'same criminal conduct.'" !d. In Haddock, this court held that

"[defendant's] single intent to possess stolen property motivated the conduct underlying

all seven convictions[, accordingly,] his criminal intent, objectively viewed, did not

change from one crime to the next" and all seven convictions counted as one point for

offender score calculation purposes. Id. 5


5
 This court has observed, citing in part to Dunaway and Adame, that "Divisions One and Three
have followed this court's precedent establishing a factors balancing approach to the 'same
criminal intent' test." State v. S.S. Y., 170 Wn.2d 322, 332 n.5, 241 P.3d 781 (2010). This court
noted, however, "Despite this precedent, Division Two has adopted its own per se rule, holding,
as a matter of law, two offenses cannot encompass the same criminal intent if the offenses
require different mental elements." !d. (emphasis added). This court acknowledged "concerns"
about the Division Two rule, observing that it is "in conflict" with cases from the other appellate
divisions "and this court," but because the issue was notprocedurally before the court it declined
to address the matter further. !d. at 332-33. Here, neither party raised any sort of statutory
mental elements test. And, the majority cites to no authority supporting its view that a
comparison of "statutory criminal intent" (i.e. mens rea elements in the incest and child rape
statutes) is dispositive of the same criminal conduct inquiry in this case.


                                                 8
No. 91366-8
(Madsen, C.J., dissenting)


       Rather than follow the clear case law applying RCW 9.94A.589, the majority, as

did the courts below, relies on language in State v. Bobenhouse, 166 Wn.2d 881, 214

P.3d 907 (2009), that was unnecessary to the result in Bobenhouse and a misstatement of

the law.

       In Bobenhouse, the defendant challenged imposition of an exceptional minimum

sentence of 60 months based on multiple convictions for first degree child rape and first

degree incest based on his sexual contacts with his minor son and the sexual contacts he

forced his son and minor daughter to engage in. !d. at 887. He argued that the

sentencing judge's, rather than a jury's, finding aggravating factors to support

defendant's exceptional sentence violated Blakely v. Washington, 542 U.S. 296, 124 S.

Ct. 2531, 159 L. Ed. 2d 403 (2004). See id. at 895.

        This court rejected his Blakely challenge as well as his argument that the trial court

should have treated the counts related to his daughter and the counts concerning

defendant's acts committed directly against his son as the same criminal conduct. !d. at

893. In answer to his claim of same criminal conduct we said,

        [E]ven ifBobenhouse's current offenses were treated as the "same criminal
        conduct" for purposes of sentencing, his offender score is greater than 9,
        which would result in some current offenses going unpunished if an
        exceptional sentence was not imposed. Any error in not treating
        Bobenhouse's crimes as the "same criminal conduct" was harmless.

!d. at 896-97. These holdings disposed of defendant's challenge to his exceptional

 sentence. However, the court commented:

        Bobenhouse further argues the trial court abused its discretion when it did
        not find that the underlying rape and incest charges (stemming from forcing

                                               9
No. 91366-8
(Madsen, C .J., dissenting)


       the children to have sexual intercourse with each other) constituted the
       "same criminal conduct" for purposes of sentencing. Bobenhouse would
       have this court hold that first degree child rape and first degree incest
       involve the same criminal intent, sexual intercourse. But this argument has
       no merit. We have previously held that "the Legislature intended to punish
       incest and rape as separate offenses, even though committed by a single
       act." State v. Calle, 125 Wn.2d 769, 780, 888 P.2d 155 (1995).
       Bobenhouse's argument must fail in light of the precedent set by our
       decision in Calle.

Id. at 896. Based on this language, the courts below rejected Chenoweth's argument that

the incest and child rape charges in his case amounted to the same criminal conduct for

sentencing purposes under RCW 9.94A.589. 6

        Instead of correcting the confusion caused by the quoted language, the majority

embraces it. This is unwise and unwarranted. The comments in Bobenhouse about

Calle, which appear without any analysis, are dicta because they were not necessary to

the outcome of the Bobenhouse case. See City of Seattle v. Holifield, 170 Wn.2d 230,

244 n.13, 240 P.3d 1162 (2010) (court's comments in an opinion that are immaterial to

the outcome are dicta); State v. Halgren, 137 Wn.2d 340, 346 n.3, 971 P.2d 512 (1999)

6
 The courts below recognized the conflict between Calle's analysis and holding and
Bobenhouse's comment concerning Calle. The trial court stated:
        [E]ach of the two counts that are coupled together in this case are a single act with
        the same intent, same victim, same time, but it is clear from Bobenhouse that they
        are to be punished separately .... I can't reconcile the language in Calle with
        that, but ... I have nothing [before me] that specifically overrules
        Bobenhouse. . . . So I will find that although they in fact consist of the same act,
        that they are, by a very distinct and a separate rule of law, to be punished
        separately."
Report ofProdceeding (Oct. 11, 2013) at 150 (emphasis added). The Court of Appeals opined:
        In Bobenhouse, 166 Wn.2d at 897, the Washington Supreme Court held that the
        legislative intent to punish rape and incest as separate offenses, even though
        committed by a single act [i.e. the holding in Calle addressing double jeopardy],
         extends to the same criminal conduct analysis for the purposes of sentencing.
State v. Chenoweth, 185 Wn. App. 1041,2015 WL 440744 at *4 (emphasis added).


                                              10
  No. 91366-8
  (Madsen, C.J., dissenting)


  (court's comments that do not bear on the outcome of a case are dicta); In re Pers.

  Restraint of Mulholland, 161 Wn.2d 322, 331, 166 P .3d 677 (2007) (declining to be

  influenced by dicta in judicial decision that encouraged the State's argument); see also

  Noble Manor v. Pierce County, 133 Wn.2d 269, 289, 943 P.2d 1378 (1997) (Sanders, J.

  concurring) (dicta are not controlling precedent); State v. Potter, 68 Wn. App. 134, 150,

   842 P.2d 481 (1992) (statements in a case that are unnecessary to decide the case

   constitute dicta and need not be followed).

          More importantly, the language misstates thi$ court's prior decision in Calle.

   Calle addressed a double jeopardy challenge. 7 The language that the Bobenhouse court

   quoted from Calle appears in Calle's discussion of double jeopardy; it does not relate to

   any same criminal conduct analysis. See Calle, 125 Wn.2d at 780.

          This court has repeatedly held that the analyses appropriate for same criminal

   conduct and "double jeopardy are distinct." Tili, 139 Wn.2d at 119 n.5; see also State v.

   French, 157 Wn.2d 593, 611, 141 P .3d 54 (2006) ("A double jeopardy violation claim is

   distinct from a 'same criminal conduct' claim and requires a separate analysis."). As we

   explained in Tili:



   7
     "At issue in this case is whether the Defendant's convictions for first degree incest and second
    degree rape violate the Fifth Amendment's protection against double jeopardy because they
    arose from a single act of intercourse." Calle, 125 Wn.2d at 771. Calle observed, "[T]he
    guaranty against double jeopardy protects against multiple punishments for the same offense."
    !d. at 776 (emphasis added) (citing Whalen v. United States, 445 U.S. 684, 688, 100 S. Ct. 1432,
    63 L. Ed. 2d 715 (1980)). Calle reiterated, "Our review here is limited to assuring that the court
    did not exceed its legislative authority by imposing multiple punishments for the same offense."
    !d. "[D]ouble jeopardy is at issue here [in Calle] because of the possibility that rape and incest
- -are thesame-offense-wnen they arise outoftliesame-acrofiillercourse."1a.-af7T4-:-- - - - - .- --------


                                                 11
     No. 91366-8
     (Madsen, C.J., dissenting)


             [T]he "same criminal conduct" analysis under the Sentencing Reform Act
             of 1981 [, chapter 9 .94A RCW], and the "unit of prosecution" analysis
             under double jeopardy are distinct. The "unit of prosecution" analysis is
             involved during the charging and trial stages, focusing on the Legislature's
             intent regarding the specific statute giving rise to the charges at issue. The
             "same criminal conduct" analysis, on the other hand, involves the
             sentencing phase and focuses on (1) the defendant's criminal objective
             intent, (2) whether the crime was committed at the same time and place,
             and (3) whether the crime involved the same victim.

      139 Wn.2d at 119 n.5 (citation omitted); see also French, 157 Wn.2d at 611-12.

              While Calle's double jeopardy analysis is not applicable to the same criminal

      conduct analysis at issue here, the final disposition of the Calle case nevertheless

      demonstrates how Cheoweth's case should be decided. In Calle, the trial court entered

      separate convictions for incest and rape of defendant's minor stepdaughter based on the

      same incident of sexual intercourse. See 125 Wn.2d at 771-72. The trial court also

      determined that the current offenses encompassed the same criminal conduct. 8 On the

      central issue presented-a challenge based on double jeopardy-this court held that

      "second degree rape and first degree incest are separate offenses, and the double jeopardy

      clause does not prevent convictions, and attendant penalties, for both offenses arising out

      of a single act of intercourse." !d. at 782 (emphasis added). 9




      8
           In Calle, "[t]he trial court determined that the current offenses encompassed the same criminal
         conduct. Thus, neither crime raised the offender score of the other. The trial court sentenced the
         Defendant to standard range sentences of 18 months for the incest and 70 months for the rape,
         and set the sentences to run concurrently." !d. at 772.
         9
           The Calle court observed that apart from any sentence imposed, separate convictions based on a
         single incident carried adverse collateral consequences such as possible parole eligibility
         impacts, increased sentence under a recidivist statute for a future offense, use for impell£hm~pt,~
· · - -- an-dsoeial stigma. 7a: at 77T-75 ('"l:<)riviction-fn itself, even without -illiposltwn-of sentence,

                                                        12
   No. 91366-8
   (Madsen, C.J., dissenting)


          As to the actual sentence imposed in Calle, this court noted that "the Legislature's

   validation of the concept of multiple convictions arising out of the same criminal act in

   [former] RCW 9.94A.400(1)(a) [(1990)],[IOJ which requires multiple current offenses

   encompassing the same criminal conduct to be counted as one crime in determining the

   defendant's offender score." Id. at 781 (emphasis added). After acknowledging the

   definition of "same criminal conduct" and that sentences imposed under this subsection

   are to be served concurrently, the Calle court opined, "[I]t seems clear that the legislative

   plan accepts the possibility that a single act may result in multiple convictions, and

   simply limits the consequences of such convictions." Id. at 781-82 (emphasis added).

   From this discussion, it is clear that Calle supports the notion that while separate

   convictions for incest and rape based on the same incident of sexual intercourse do not

   offend the double jeopardy clause, calculation of defendant's offender score is still

   subject to a separate same criminal conduct analysis under the sentencing statute

   (currently RCW 9.94A.589(1)(a)).

           Notwithstanding Calle's distinction between double jeopardy and same criminal

    conduct, the majority repeats the mistake in the Bobenhouse dicta, stating, "[L]egislative

    history supports the 'conclusion that the Legislature intended to punish incest and rape as

    separate offenses, even though committed by a single act.' Calle, 125 Wn.2d at 780."

    Majority at 7. Again, while Calle indeed so stated, the point was made in rejecting the


    carries an unmistakable onus which has a punitive effect."' (quoting State v. Johnson, 92 Wn.2d
    671, 679, 600 P.2d 1249 (1979), cert. dismissed, 446 U.S. 948 (1980)).
- - - 10 Reco-dtfied-as-Rcw-9~947\.589(l)(a):-Mutcn,T71-wn.2aac654~-   --- --     --- -


                                                   13
No. 91366-8
(Madsen, C.J., dissenting)


defendant's double jeopardy argument. See Calle, 125 Wn.2d at 780. Citing to Calle

again, the majority contends, "We have held that where legislative intent is clearly

indicated, that intent controls the offender score. See Calle, 125 Wn.2d at 778."

Majority at 7 (emphasis added). But Calle simply does not say that. Calle says thatfor

purposes of assessing double jeopardy, aside from considering the "same evidence" test

and the "same elements" test, Washington courts look to other "indicia of legislative

intent ... to determine whether a defendant is receiving multiple punishment for the same

offense." 125 Wn.2d at 778 (emphasis added). Concerning the incest and child rape

offenses at issue in Calle, such indicia included the legislative history, placement of the

offenses in different sections of the criminal code, and the different purposes served by

the offenses. See id. at 779-81. The majority repeats these indicia, noted in Calle for

double jeopardy purposes, claiming that they also support imposition of separate

sentences in Chenoweth's case. But that approach ignores the analysis and outcome in

Calle, which held that multiple incest and child rape convictions did not offend double

jeopardy but affirmed that the sentencing statute (former RCW 9.94A.400(1)(a) (1990),

currently RCW 9.94A.589(1)(a)) nevertheless "limits the consequences of such

convictions." Id. at 782. 11

        Further, this court has previously rejected the approach adopted by the majority

here. In Haddock, the State similarly argued that because "the Legislature specifically


11
  Similarly, the majority's view is also contrary to Tili, which held multiple convictions did not
violate double jeopardy but amounted to same criminal conduct for sentencing purposes. See
Tili, 139 Wn.2d at 119, 124-25, 128.


                                                 14
No. 91366-8
(Madsen, C.J., dissenting)


intended firearms crimes to be punished more severely than other crimes," such firearm

crimes should never be counted as same criminal conduct with other contemporaneous

crimes. 141 Wn.2d at 114. This court opined, "While the State's premise that the

Legislature and the people intend that crimes involving firearms should be more harshly

punished than other crimes is more or less correct, [the State's] conclusion from that

premise is unwarranted." !d. Noting that the legislation, 12 which the State relied on to

demonstrate legislative intent, did not expressly modify the same criminal conduct

language of the sentencing statute, this court held that based on defendant's "single intent

to possess stolen property," all seven of his current convictions (for possession of stolen

firearms and other property) counted as one point for sentencing purposes. Id. at 112-15.

       In sum, in addressing the same criminal conduct for sentencing purposes, the

majority applies an erroneous statutory mens rea criteria that none of the parties advanced

and perpetuates confusion in this area by relying on a misstatement in dicta in

Bobenhouse, which is contrary to our prior relevant case law addressing same criminal

conduct analysis.

        For these reasons, I dissent.




 12
  "[T]the 'Hard Time for Armed Crime' initiative of 1995, codified in [former] RCW
9.94A.310(4) [(1995)]." Haddock, 141 Wn.2d at 114.


                                             15
No. 91366-8
(Madsen, C.J., dissenting)




                             16
