STATE v. KINNEY (2005)

Published in Part Opinion

Naomi Kinney made repeated attempts to kill Timothy Bowman before she succeeded by shooting him.   Kinney pleaded guilty to two counts of attempted murder and one count of murder.   Pursuant to RCW 9.94A.589(1)(b), the court determined that the attempts, one by poisoning and one by smothering, were “separate and distinct” and accordingly ordered consecutive sentences.   Kinney contends this violates Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 2536, 159 L.Ed.2d 403 (2004), by increasing her punishment based on facts not found by a jury.   But the relationship between the two  crimes was not an aggravating factor increasing the punishment for either crime.   There was no Blakely error.   We affirm.¹

FACTS

On March 4, 2002, police conducted a welfare check on Timothy Bowman after he did not appear at work or contact the college where he taught.   They found Bowman's body lying in bed in the house he and Naomi Kinney lived in with their children.   The cause of death was a gunshot wound to the head.   From neighbors, police learned that Bowman and Kinney had been having domestic difficulties, and Bowman had feared that Kinney was poisoning him.

Police contacted Kinney.   After initially denying involvement, she eventually admitted killing Bowman.   She signed a written statement detailing a series of attempts to kill Bowman that had begun on February 14.   Prompted by her mother in Oregon, Kinney first tried to kill Bowman by giving him an overdose of sleeping pills in a chocolate heart cookie.   When Bowman woke up, unaware of the attempt on his life, Kinney contacted her mother again and, on her advice, unsuccessfully tried to suffocate Bowman with a pillow and a plastic bag later that night.   Over the following days, Kinney made additional attempts by using sleeping pills, striking Bowman on the head while he was asleep, and trying to set his truck on fire while he was asleep in it.

Bowman became suspicious that Kinney was trying to harm him.   After further conversations with her mother, Kinney decided to shoot Bowman.   On March 3, while he was asleep, Kinney got the children out of the house and shot Bowman while she was talking to her mother on the telephone.

The State charged Kinney with six counts of attempted first degree murder and one count of first degree murder.   Kinney eventually entered guilty pleas to two  counts of attempted first degree murder as charged in counts I and II of the original information and first degree murder as charged in count VII. The State agreed to recommend sentences of 240 months for the completed murder and 180 months for each attempt, each sentence to be served consecutively for a total of 600 months.   Before sentencing, defense counsel filed a memorandum, arguing that counts I and II were the same criminal conduct and therefore constituted a single offense.   The State contended that the two offenses were separate criminal conduct.   The trial court agreed with the State and sentenced Kinney to consecutive standard range sentences in accordance with the State's recommendation.   Kinney appeals.²

Consecutive Sentences for Serious Violent Crimes under Blakely

RCW 9.94A.589(1)(b) requires consecutive sentences where a defendant is sentenced for two or more serious violent felonies arising from “separate and distinct criminal conduct.” ³  Citing Blakely, 542 U.S. at ---- - ----, ----, 124 S.Ct. at 2537-39, 2543 and Apprendi v. New Jersey 530 U.S. 466, 490, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), Kinney argues that she was entitled to a jury trial on the facts necessary to determine that the two attempted murders were separate conduct.

In Apprendi, the Supreme Court held a criminal defendant's Sixth Amendment right to a jury trial mandates that, “[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.”  Apprendi, 530 U.S. at 490, 120 S.Ct. 2348.   In Blakely, the Court clarified that “[t]he ‘statutory maximum’ for Apprendi purposes is the maximum sentence  a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant.   In other words, the relevant ‘statutory maximum’ is not the maximum sentence a judge may impose after finding additional facts, but the maximum he may impose without any additional findings.”  Blakely, 542 U.S. at ----, 124 S.Ct. at 2537 (emphasis in original, citations omitted).

We conclude there was no Blakely violation.   Neither Blakely nor Apprendi purport to create a jury trial right to the determination as to whether to impose consecutive sentences.   Both Blakely and Apprendi involved a conviction for a single count.   And the basis for the Blakely and Apprendi holdings does not implicate consecutive sentencing.

The Apprendi majority relied on Jones v. United States, 526 U.S. 227, 119 S.Ct. 1215, 143 L.Ed.2d 311 (1999) to characterize the right at issue as a right to a jury determination of all facts necessary to establish a crime:

We do not suggest that trial practices cannot change in the course of centuries and still remain true to the principles that emerged from the Framers' fears ‘that the jury right could be lost not only by gross denial, but by erosion.’  Jones, 526 U.S. at 247-248, 119 S.Ct. 1215, 143 L.Ed.2d 311.   But practice must at least adhere to the basic principles undergirding the requirements of trying to a jury all facts necessary to constitute a statutory offense, and proving those facts beyond reasonable doubt.

Apprendi, 530 U.S. at 483-484, 120 S.Ct. 2348 (footnote omitted, emphasis added).

That the Apprendi court was concerned with facts used to enhance a sentence for an individual crime was underscored when the court held the possibility of a defendant receiving consecutive sentences was irrelevant to determining whether the enhanced sentence on the count in issue was constitutional.  “The sentences on counts 3 and 22 have no more relevance to our disposition than the dismissal of the remaining 18 counts.”  Apprendi, 530 U.S. at 474, 120 S.Ct. 2348.

 Apprendi's progeny have shown the same focus.   In Ring v. Arizona, 536 U.S. 584, 609, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002), the Court held that Arizona's statutory factors necessary for imposition of the death penalty were “ ‘the functional equivalent of an element of a greater offense’ ” (quoting Apprendi, 530 U.S. at 494 n. 19, 120 S.Ct. 2348).   Similarly, Blakely limited the imposition of punishment beyond the high end of the sentencing reform act standard range for a single offense, based on an underlying concern that a state not circumvent the right to trial by jury by effectively reclassifying offense elements as sentencing factors or by converting a separate crime not proved to a jury into a sentence enhancement.   Blakely, 542 U.S. at ---- n. 6, 2539 - 40 n. 11, 124 S.Ct. at 2537 n. 6, 2539-40 n. 11.   We conclude that determining that two crimes are separate offenses under RCW 9.94A.589(1)(b) does not operate to elevate either crime to the equivalent of a greater offense merely because, as here, it results in two standard range sentences running consecutively.

We are in agreement with the many jurisdictions that have held that Apprendi does not apply to the decision to impose consecutive sentences.   See, e.g., United States v. Harrison, 340 F.3d 497, 500 (8th Cir.2003);  United States v. Lafayette, 337 F.3d 1043, 1049-50 (D.C.Cir.2003);  United States v. Hernandez, 330 F.3d 964, 982 (7th Cir.2003);  United States v. Davis, 329 F.3d 1250, 1254 (11th Cir.2003);  United States v. Chorin, 322 F.3d 274, 278-279 (3d Cir.2003);  People v. Groves, 107 Cal.App.4th 1227, 1230-31, 132 Cal.Rptr.2d 744 (2003);  United States v. Buckland, 289 F.3d 558, 568 (9th Cir.2002);  United States v. Lott, 310 F.3d 1231, 1242-43 (10th Cir.2002);  State v. Bramlett, 273 Kan. 67, 41 P.3d 796 (2002);  United States v. White, 240 F.3d 127, 136 (2d Cir.2001);  People v. Wagener, 196 Ill.2d 269, 256 Ill.Dec. 550, 752 N.E.2d 430, 441 (2001);  C.f. State v. Fuerte-Coria, 196 Or.App. 170, 100 P.3d 773 (2004) (claimed Blakely error as to consecutive sentences not reviewable for the first time on appeal because making crimes consecutive does not implicate the relevant statutory maximum in any obvious way).

The consecutive sentencing decision in RCW 9.94A.589 based on a determination that multiple serious  violent offenses are separate criminal conduct does not involve facts, in the words of the Apprendi majority, “necessary to constitute a statutory offense.” Apprendi, 530 U.S. at 483, 120 S.Ct. 2348.   A sentencing court can make that consecutive sentencing decision only after the defendant has already been validly found to have committed two or more such offenses beyond a reasonable doubt.   Facts affecting the potential punishment for each individual offense are subject to Blakely and Apprendi, but this principal does not extend to whether standard range sentences for serious violent offenses for which the defendant was properly found guilty will be served consecutively under RCW 9.94A.589(1)(b).

We affirm Kinney's sentence.⁴  The balance of this opinion has no precedential value.   Accordingly, pursuant to RCW 2.06.040, it shall not be published.

Separate Criminal Conduct

“Separate and distinct criminal conduct” is not defined by statute.   But under RCW 9.94A.589, crimes that do not meet the definition of “same criminal conduct” are necessarily separate and distinct.   See State v. Tili, 139 Wash.2d 107, 122, 985 P.2d 365 (1999), aff'd on other grounds, 148 Wash.2d 350, 60 P.3d 1192 (2003);  State v. Price, 103 Wash.App. 845, 855, 14 P.3d 841 (2000).   This court reviews a trial court's determination of whether two crimes constitute the “same criminal conduct” for abuse of discretion or misapplication of the law.  State v. Freeman, 118 Wash.App. 365, 377, 76 P.3d 732 (2003) (citing State v. Maxfield, 125 Wash.2d 378, 402, 886 P.2d 123 (1994)), review granted, 151 Wash.2d 1024, 94 P.3d 959 (2004);  State v. Larry, 108 Wash.App. 894, 915, 34 P.3d 241 (2001).   Review for abuse of discretion is appropriate when the facts in the record are sufficient to support a finding either way on the presence of any of the three statutory elements that, taken together, constitute same criminal conduct.   Freeman, 118 Wash.App. at 377, 76 P.3d 732 (citing State v. Anderson, 92 Wash.App. 54, 62, 960 P.2d 975 (1998)).

Two or more crimes may be considered the same criminal conduct if 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).   The absence of any one of the prongs prevents a finding of “same criminal conduct.”   Price, 103 Wash.App. at 855, 14 P.3d 841 (citing State v. Vike, 125 Wash.2d 407, 410, 885 P.2d 824 (1994)).   While appellate courts generally construe the term “same criminal conduct” narrowly to disallow most assertions of same criminal conduct, State v. Hernandez, 95 Wash.App. 480, 485, 976 P.2d 165 (1999), there is an exception to this general rule when the defendant commits the same crime against the same victim over a short period of time.   State v. Porter, 133 Wash.2d 177, 181, 942 P.2d 974 (1997).

Kinney's two attempted murders involved the same victim.   The issue is whether the crimes occurred at the same time and place and involved the same criminal intent.

1. Time

The facts used by the court at sentencing were contained in Kinney's written statement to police and the State's affidavit of probable cause.   Kinney's statement placed the first two attempted murders at different times on February 14:

I ground up 7 or 8 Ambien pills in my pill grinder.   I put the powder into the peanut butter heart.   I covered the heart with chocolate and gave it to him for Valentine's Day․Tim said that it tasted bitter.   I explained that it was just because of the type of chocolate I had used.   He sat down on the stairs and was talking to me about his day.   After about 1/212 hour he fell asleep sitting up.   I went and got him a pillow and put it under his head.   I expected that he would just go to sleep and not wake up.   I waited and I was worried about him.   I kept checking him and after a couple hours, he woke up.   I was kinda relieved.   Tim went into the bathroom and was throwing up.   Tim then went to bed, it was sometime around midnight.   I called mom and told her that it didn't work.   She told me to try smothering him with a pillow.   I told her that I didn't have the strength.   She said that he was out and wouldn't fight me.   I went back into the bedroom.   I laid down with him for awhile.   I was trying to get up the courage to do it.   I put a pillow on his face and leaned on it.   He put his hand up and pushed it off.   He went back to sleep.   I called mom back again.   She told me that I would need to use a plastic bag.   I got a plastic bag from the kitchen and put it in the pillowcase.   I put the pillow on his face again and leaned on it.   He pushed it off again.

Kinney contends that the same time requirement was met because the two attempts occurred within “a limited period of time.”   Brief of Appellant, at 12.   Kinney relies on Porter's holding that two crimes need not be simultaneous to meet the requirement that they take place at the same time.   See Porter, 133 Wash.2d at 186, 942 P.2d 974.   But Kinney reads Porter too broadly.   In that case, the defendant delivered two different kinds of drugs to the same police officer “as closely in time as they could without being simultaneous.”  Porter, 133 Wash.2d at 183, 942 P.2d 974.   The court concluded that the “sales were part of a continuous, uninterrupted sequence of conduct over a very short period of time” and held that “immediately sequential drug sales satisfy the ‘same time’ element of the statute.”  Porter, 133 Wash.2d at 183, 942 P.2d 974.   Kinney's situation is not analogous to Porter.

State v. Price, 103 Wash.App. at 845, 14 P.3d 841, is instructive.   In Price, the trial court found the same time requirement met for two attempted murders when the defendant shot at a car from the side of the road, then entered his own car and chased the first car to fire more shots at it on the freeway.   But Division Two of this court concluded that because the defendant had enough time after the first shooting to return to his truck, pursue the victims up an on-ramp, and pull up next to them on the freeway, there was no continuing uninterrupted sequence.  Price, 103 Wash.App. at 856, 14 P.3d 841.   The crimes therefore did not take place at the same time.   Price, 103 Wash.App. at 856, 14 P.3d 841.

Kinney's acts were not accomplished within a very short period of time;  they were approximately two and a half hours apart.   And the two attempts were interrupted by the opportunity to reflect and obtain advice as to another method of trying to kill the victim.   Counts I and II did not take place at the same time.   The trial court therefore must be affirmed because the absence of any of the prongs of the same conduct test is dispositive.  Price, 103 Wash.App. at 855, 14 P.3d 841. 5

2. Same Criminal Intent

In Tili, the Supreme Court considered a claim of same criminal conduct where the defendant raped the victim three different ways.   Because the three penetrations of the victim were continuous, uninterrupted, committed within an extremely short time frame and were accomplished by an unchanging pattern of conduct, the court concluded that the defendant did not form a separate criminal intent between each act.  Tili, 139 Wash.2d at 123-24, 985 P.2d 365.   The Tili court contrasted the facts in State v. Grantham, 84 Wash.App. 854, 932 P.2d 657 (1997).

In Grantham, the defendant completed an act of forced anal intercourse, stood over the victim and threatened her not to tell, then assaulted her and threatened her again to force her to submit to oral intercourse.  Grantham, 84 Wash.App. at 856-57, 932 P.2d 657.   The Tili court concluded that this evidence “supported the conclusion that the criminal episode ended with the first rape[.]”  Tili, 139 Wash.2d at 123, 985 P.2d 365.   With this sequence of events, “ ‘Grantham ․ had the time and opportunity to pause, reflect, and either cease his criminal activity or proceed to commit a further criminal act․ Thus, Grantham was able to form a new criminal intent before his second criminal act because his “crimes were sequential, not simultaneous or continuous.” ’ ”  Tili, 139 Wash.2d at 123-24, 985 P.2d 365, (quoting Grantham, 84 Wash.App. at 856-57, 859, 932 P.2d 657).

Applying Tili's distinction between offenses that are continuous and uninterrupted and those that are merely sequential, the court in Price held that despite the short time span involved, the defendant had the opportunity to form new criminal intent because of the intervening choices he made to return to the truck and follow the victims onto the freeway.  Price, 103 Wash.App. at 858-59, 14 P.3d 841.   Similarly, the court in In re Personal Restraint of Rangel, 99 Wash.App. 596, 996 P.2d 620 (2000) held that because the defendant's two attempts to shoot the victims were interrupted by the crashing of the victim's vehicle and the defendant's driver turning his car around to approach the victims again, the acts were separate crimes.  Rangel 99 Wash.App. at 600, 996 P.2d 620.

Here, the facts are analogous to those in Grantham, Price, and Rangel.   Kinney's attempt to kill Bowman by overdose was complete when she gave him the cookie.   In the intervening time, she had the opportunity to learn her attempt was unsuccessful and feel relieved at her failure.   And when she consulted with her mother again, her initial response to the idea of trying to suffocate Bowman was to refuse because she believed she did not have the strength.   That she ultimately decided to attempt to smother Bowman, a substantially different act than giving him the Ambien, further demonstrates that she formed a new criminal intent.

And because the trial court reasonably concluded the first attempt was completed, we reject Kinney's contention that it must be viewed as merely having furthered the second attempt.   See State v. Lessley, 118 Wash.2d 773, 827 P.2d 996 (1992) (objective criminal intent can be measured by determining whether one crime furthered another).   Viewed objectively, Kinney's intent in giving Bowman the Ambien was not to make him easier to kill by later suffocation;  it was to end his life without the necessity of any further act on her part.

We also reject Kinney's claim that the trial court erred in law by relying on her subjective intent rather than viewing the facts objectively.   See Tili, 139 Wash.2d at 123, 985 P.2d 365;  State v. Dunaway, 109 Wash.2d 207, 215, 743 P.2d 1237 (1987);  State v. Edwards, 45 Wash.App. 378, 382, 725 P.2d 442 (1986), overruled on other grounds by Dunaway, 109 Wash.2d at 215, 743 P.2d 1237.   It is true that the court expressly considered Kinney's statement that she was relieved when Bowman woke up after the first attempt.   But the trial court explained in its oral comments during the entry of the written findings that Kinney's statements about her state of mind demonstrated circumstantially that her first attempt was complete before she formed the intent for the second:

[It] leads me to believe that she clearly abandoned her intent from the first time, and that's why I made the decision I did.

․

The moment she said, “I was kinda relieved.   I was worried about it.   He woke up, ‘poof!’   It's over.   It failed[,]” And then she called her mom, started a whole new one.”

Report of Proceedings, (Sept. 11, 2003) at 4-5.   We may use the trial court's oral ruling to interpret its consistent written ruling. See State v. Bynum, 76 Wash.App. 262, 266, 884 P.2d 10 (1994).   And doing so, we conclude that the trial court permissibly used Kinney's statements as circumstantial evidence in applying the proper objective test and thus did not err as a matter of law by relying only on Kinney's subjective intent.   Moreover, even if the trial court should not have considered Kinney's comment about feeling relieved, we believe the only conclusion a court could reach from the remaining record was that Kinney formed a new objective intent by the time of the second attempt.

Because the trial court neither abused its discretion nor misapplied the law, it did not err in determining that Kinney's two attempts to kill Bowman were separate criminal conduct that required the imposition of consecutive sentences.

Additional Grounds for Review

Pro se, Kinney makes several claims of ineffective assistance of trial counsel.   These claims are based wholly on matters outside the record of this appeal, however, and therefore cannot be considered here.  State v. McFarland, 127 Wash.2d 322, 335, 899 P.2d 1251 (1995).

We affirm the conviction and sentence.

FOOTNOTES

1.   We reject Kinney's other contentions in the unpublished portion of this opinion.

2.   Kinney does not contend that the attempted murders constituted the same criminal conduct as the completed crime.

3.   This case does not involve sentences for offenses that are not serious violent crimes and thus may be run consecutively only under the exceptional sentence provisions of the Sentencing Reform Act of 1981.   See RCW 9.94A.535 and RCW 9.94A.589(1)(a).

4.   Because of our resolution of this issue, it is unnecessary to address the State's alternative contentions that any error was harmless or that by placing the facts before the sentencing court as the basis of her contention that the crimes were not separate conduct, Kinney necessarily stipulated to their accuracy and use.

FN5.  The trial court concluded that the acts did not take place at the same place because Kinney fed Bowman the cookie on the stairs of the house and tried to smother him in the bedroom.   We disagree with Kinney's contention that under State v. Tresenriter, 101 Wash.App. 486, 4 P.3d 145 (2000), crimes committed in one house will always necessarily satisfy the same place requirement.   But we nonetheless decline to rely on the trial court's reasoning in this regard..  FN5.  The trial court concluded that the acts did not take place at the same place because Kinney fed Bowman the cookie on the stairs of the house and tried to smother him in the bedroom.   We disagree with Kinney's contention that under State v. Tresenriter, 101 Wash.App. 486, 4 P.3d 145 (2000), crimes committed in one house will always necessarily satisfy the same place requirement.   But we nonetheless decline to rely on the trial court's reasoning in this regard.

COLEMAN, J.