No. 36249-0-II.The Court of Appeals of Washington, Division Two.
March 31, 2009.
Appeal from a judgment of the Superior Court for Pierce County, No. 06-1-00050-3, Ronald E. Culpepper, J., entered April 20, 2007.
Affirmed by unpublished opinion per Penoyar, J., concurred in by Van Deren, C.J., and Quinn-Brintnall, J.
UNPUBLISHED OPINION
PENOYAR, J.
A jury convicted Hozie Holley of attempted first degree murder and first degree kidnapping. Holley appeals his convictions claiming, (1) there was insufficient evidence of premeditated intent to kill, (2) the convictions violate double jeopardy, and (3) the trial court erred in determining for the purposes of sentencing that the convictions constitute separate criminal conduct. Holley also raises a speedy trial issue in his statement of additional grounds (SAG).[1] We affirm Holley’s convictions as none of his claims has merit.
FACTS
Lori Randolph met Holley in October 1996, and began dating in November 1996. They maintained an on-again, off-again relationship until July 2005.
In September 2005, Randolph agreed to allow Holley to stay at her apartment in Tacoma during the week to ease his commute from Lacey, where he lived with his sister. They did not renew their relationship. Holley lost his job sometime in October or November but did not move back to Lacey. Randolph asked him to leave, but she took no steps to evict him.
On the evening of December 17, 2005, Randolph went to Seattle to celebrate her birthday with some friends. Holley did not accompany her. Randolph and her friends celebrated her birthday at a private club. She left the club around 2:00 a.m. and returned to her Tacoma apartment. Holley was asleep when she returned.
The following morning, Randolph woke up and went to work downstairs at the apartment management office. She returned to her apartment for lunch. Holley was still at the apartment and was in a “pissy” mood. 2 Report of Proceedings (RP) at 100. After she finished work, around 2:00 p.m., Randolph returned to her apartment and tried to log onto her computer, but it would not start. She asked Holley what he had done to it; he responded that he did not know what happened to it. Randolph then told him to “stay the fuck away” from the computer. 2 RP at 101.
At this point, Holley walked over to Randolph and began punching her in the face with his fists. Randolph pleaded with him to stop, but he continued punching her. Holley eventually stopped punching Randolph and then began to choke her with his hands. Randolph gasped for air and “eventually lost consciousness.” 2 RP at 103. The next thing Randolph recalled was Holley pulling her from the chair and putting her on the floor where he started “trying to turn [her] neck like he was trying to break [it].” 2 RP at 104. During this time, Holley told Randolph repeatedly that “[she] was going to have to die.” 2 RP at 104.
Next, Holley cut the wires from Randolph’s computer speakers and wrapped them around her neck in an attempt to strangle her. Randolph begged Holley to stop, at which point he ripped open her shirt. He held a knife to her breast, threatening to cut it off, and told her that he was going to throw her from the 14th story window. Holley told her that “one way or another [she was going to die].” 2 RP at 106. He then wrapped duct tape over Randolph’s mouth and around her head and used the remaining computer wire to bind her hands and feet and tie them to each other.[2] Randolph could not breathe through her nose as it filled completely with blood, so she used her tongue to push the tape from her mouth. Holley told her that he had to kill her because he knew that she would call the police. Randolph thought she was going to die.
Holley moved Randolph into the bedroom and reapplied duct tape to her mouth. He then pulled down Randolph’s pants and retrieved a butcher knife from the kitchen. Holley wanted to know if Randolph had had sex with anyone, and he used “the point of the knife to examine” her genitals.[3] 2 RP at 117. He continued to hit Randolph, “boxing” her ears repeatedly until “it opened up the back of [her] ear” and started bleeding. 2 RP at 117-18. Also, while in the bedroom, Holley picked up a full-sized upright vacuum cleaner and swung “it like a baseball bat,” striking Randolph in the back. 2 RP at 119.
During the course of the beating, the phone rang several times. Holley answered at least one call, politely telling the caller that Randolph was at the store but that she would call back later. Holley threatened Randolph that if the phone rang on more time, he would kill her right then.
Next, Holley left Randolph on the floor in the bedroom while he went into the bathroom and filled the tub. He told her that he was going to put her into the tub and drop her hairdryer in. When he took her into the bathroom she was “ready to die.” 2 RP (2/5/07) at 131. She told Holley that she was afraid she would slip and fall getting into the tub, and he took her back to the bedroom. He then talked to her about arranging his get away so Randolph “could live and [Holley] wouldn’t go to jail.” 2 RP at 133. Holley told her that he did not want to go to jail and that “that’s why he decided he had to kill [her].” 2 RP at 134.
They eventually agreed that Holley would leave and that Randolph would do nothing for 20 minutes.[4] Randolph also agreed that she would not call the police. Holley left at approximately 8:00 p.m. Twenty minutes later, Randolph walked to a friend’s apartment. The friend did not recognize Randolph because of her injuries and started screaming. Eventually the friend calmed down and called 911. Emergency personnel came immediately and transported Randolph to the hospital.
The State charged Holley with attempted first degree murder and first degree kidnapping. The State also alleged deadly weapon enhancements on each count. Randolph testified at trial, as did her friend who had called the police, the responding detective, a forensic specialist, and a doctor. Holley did not testify.
The jury found Holley guilty of first degree attempted murder and first degree kidnapping without the deadly weapon enhancements. At sentencing, Holley argued that the two convictions constituted the same criminal conduct and that they should merge. The trial court disagreed and found that the crimes had different objective intents.
Holley now appeals.
ANALYSIS
I. Premeditated Intent
Holley challenges his first degree attempted murder conviction, arguing that the State failed to present sufficient evidence that he acted with premeditated intent to kill Rudolph. We disagree.
At trial, the State is required to prove each and every element of the crime charged beyond a reasonable doubt. State v. McCullum, 98 Wn.2d 484, 489, 656 P.2d 1064 (1983). The test for determining the sufficiency of the evidence is whether, after viewing the evidence in the light most favorable to the State, any rational trier of fact could have found the defendant guilty beyond a reasonable doubt. State v. Green, 94 Wn.2d 216, 221-22, 616 P.2d 628 (1980). When the sufficiency of evidence is challenged in a criminal case, we draw all reasonable inferences from the evidence in the State’s favor and interpret it most strongly against the defendant State v. Partin, 88 Wn.2d 899, 906-07, 567 P.2d 1136
(1977). A claim of insufficiency admits the truth of the State’s evidence and all inferences that reasonably can be drawn from it. State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992) (en banc); State v. Theroff, 25 Wn. App. 590, 593, 608 P.2d 1254, aff’d 95 Wn.2d 385, 622 P.2d 1240 (1980). Credibility determinations are for the trier of fact and are not subject to review. State v. Thomas, 150 Wn.2d 821, 874, 83 P.3d 970 (2004) (citin State v. Camarillo, 115 Wn.2d 60, 71, 794 P.2d 850
(1990)). We defer to the trier of fact on issues of conflicting testimony, credibility of witnesses, and the persuasiveness of the evidence. Thomas, 150 Wn.2d at 874-75 (citin State v. Cord, 103 Wn.2d 361, 367, 693 P.2d 81
(1985)).
The jury instruction correctly stated that a person is guilty of attempted first degree murder if, with intent to commit first degree murder, the defendant does any act that is a substantial step toward the commission of that crime. State v. Workman, 90 Wn.2d 443, 449, 584 P.2d 382 (1978). The instructions explained the meaning of “substantial step” by stating that the conduct must “strongly indicate[] a criminal purpose and [must be] more than mere preparation.” Clerk’s Papers (CP) at 56. Once a substantial step has been taken, and the crime of attempt is complete, the crime cannot be abandoned. Workman, 90 Wn.2d at 450.
The trial court further instructed the jury on the meaning of “premeditated.” CP at 57. Instruction 11 explained:
Premeditated means thought over beforehand. When a person, after any deliberation, forms an intent to take a human life, the killing may follow immediately after the formation of the settled purpose and it will still be premeditated. Premeditation must involve more than a moment in point of time. The law requires some time, however long or short, in which a design to kill is deliberately formed.
CP at 57.
Taking the evidence in the light most favorable to the State, and assuming all inferences from that evidence that can reasonably be drawn from it, there was sufficient evidence to convict Holley of attempted first degree premeditated murder. The jury heard Randolph testify that Holly beat her severely for nearly 6 hours. With hands and feet bound behind her, Holley strangled Randolph with his hands until she passed out. He twisted her neck, as if trying to break it. He also strangled her with computer wire, beat her with an upright vacuum and with his fists, repeatedly threatened to push her from the 14th floor window and/or electrocute her in the tub. Holley even filled the tub with water and led Randolph into the bathroom. Holley repeated to Randolph that “This is the day that you die,” and Randolph believed him. RP at 124.
The jury also heard evidence that falls from above five stories are almost certainly fatal and that with strangulation, the “only difference between a survivor and a homicide victim is the amount of pressure and how long it’s applied.” 5 RP at 487. Holley may have had a change of heart about actually killing Randolph, but once he took a substantial step, the crime of attempted premeditated murder was complete and he could not obviate it by abandonment. Workman, 90 Wn.2d at 450.
Defense counsel argued to the jury what is argued here, namely that though Randolph was the victim of a vicious attack by Holley, the evidence does not support that he actually intended to kill her. After hearing all evidence, the jury disagreed. We defer to the trier of fact on issues of conflicting testimony, credibility of witnesses, and the persuasiveness of the evidence, we accept the jury’s verdict and deny Holley’s appeal on this ground. Thomas, 150 Wn.2d at 874-75
II. Double Jeopardy
Holley next argues that the same set of facts underlies both the attempted first degree murder conviction and the first degree kidnapping conviction — namely the beating of Randolph — and that separate punishment for those crimes constitutes a violation of double jeopardy protections. The State argues, based on the Washington State Supreme Court’s recent decision in In re Pers. Restraint of Borrero, that the legislature authorized separate punishment in this instance. 161 Wn.2d 532, 167 P.3d 1106 (2007). We agree with the State.
The double jeopardy clauses of the state and federal constitutions provide, among other things, that a defendant will not suffer multiple punishments for the same crime see U.S. Const. amend. V; Wash. Const. art. I, § 9; In re Pers. Restraint of Orange, 152 Wn.2d 795, 815, 100 P.3d 291 (2004). Where a defendant is convicted under multiple criminal statutes for a single act, the court must determine whether the legislature intended multiple punishments, first by looking to the statutory language and alternatively by employing the “same evidence” test. Borrero, 161 Wn.2d at 536-37 (citin Blockburger v. United States, 284 U.S. 299, 304, 52 S. Ct. 180, 76 L. Ed. 306 (1932)). Here, the statutory language does not disclose any legislative intent, so we apply the “same evidence” test — whether the offenses are identical in fact and in law. Borrero, 161 Wn.2d at 537. If each offense contains an element not contained in the other, requiring proof of a fact the other does not, the offenses are not the same. Borrero, 161 Wn.2d at 537.
In Borrero, the Washington Supreme Court considered whether punishment for both attempted first degree murder and first degree kidnapping violated double jeopardy. It determined that there was no double jeopardy violation because the two offenses have “different mental elements.” Borrero, 161 Wn.2d at 540. More specifically, “[t]he intent element of first degree kidnapping . . . and the intent element of attempted first degree murder are different in law and require different proof.” Borrero, 161 Wn.2d at 540.
First degree kidnapping as charged here requires proof that Holley “abducted [Randolph] with intent to facilitate the commission of a felony assault or felony harassment.” CP at 64. The attempt statute requires the specific intent to commit the crime attempted, here, the premeditated intent to cause the death of another person. Borrero, 161 Wn.2d at 540. As noted in Borrero, “attempted murder in the first degree requires proof of premeditated intent to cause the death of another person that the kidnapping in the first degree does not.” 161 Wn.2d at 540. Thus, as in Borrero, “where one offense is an attempt crime, a presumption arises in this case that the first degree kidnapping as charged and the attempted first degree murder as charged are not the same in fact and in law.” 161 Wn.2d at 540. Holley does not override this presumption, and does not indicate any “clear indication of contrary legislative intent.” Borrero, 161 Wn.2d at 540 (quoting State v. Calle, 125 Wn.2d 796, 778-80, 888 P.2d 155 (1995)).[5] We hold that the convictions do not violate double jeopardy. III. Offender Score
Holley further argues that the trial court erred in determining, for the purposes of deciding whether to impose the prison time consecutive or concurrent, that the attempted first degree murder conviction and the first degree kidnapping conviction were separate and distinct criminal conduct.[6]
The State responds that the trial court did not abuse its discretion in making the determination. We agree with the State.
In calculating offender scores, a trial court does not count separately those crimes that are the “same criminal conduct.” RCW 9.94A.589. RCW 9.94A.589 defines “same criminal conduct” as crimes having the same objective criminal intent, committed at the same time and place, and involving the same victim. We generally defer to a trial court’s decision on whether two different crimes involve the same criminal conduct and will not reverse absent a clear abuse of discretion or misapplication of the law. State v. Haddock, 141 Wn.2d 103, 110, 3 P.3d 733 (2000).
After reviewing this same argument at sentencing, the trial court determined that the two convictions did not encompass the same criminal conduct because the two crimes required two different intents; the intent to abduct and the premeditated intent to kill. Having determined in the section preceding this one, that the two crimes have different intent requirements, we agree with the trial court here. Because the crimes have different intent requirements, they cannot be considered the same criminal conduct and Holley’s appeal on this ground is denied. IV. SAG Issue: Speedy Trial
In his SAG, Holley argues a violation of his right to a speedy trial. Washington’s time-for-trial rule, CrR 3.3, generally requires the State to begin an incarcerated criminal defendant’s trial within 60 days of arraignment; if not, the trial court will dismiss the case with prejudice. CrR 3.3(c)(1). There are, however, exceptions to this rule.
The decision to grant or to deny a motion for a continuance rests within the trial court’s sound discretion, which we will not disturb absent “a clear showing” that the trial court’s decision is “manifestly unreasonable, or exercised on untenable grounds, or for untenable reasons.” State v. Downing, 151 Wn.2d 265, 272, 87 P.3d 1169 (2004) (quoting State ex rel. Carroll v. Junker, 79 Wn.2d 12, 26, 482 P.2d 775
(1971)).
Here, the record demonstrates that the first trial date was March 2, 2006, when both parties agreed to a continuance for further investigation. Additional continuances followed, on the basis that (1) parties needed more time to investigate and interview witnesses, (2) DNA evidence needed to be processed, (3) and both defense counsel and the prosecuting attorney were in trial. The State sought a continuance on two occasions, both times due to the fact that the assigned prosecutor was in trial on another case. The grant of a continuance in these situations is well within the trial court discretion. State v. Campbell, 103 Wn.2d 1, 691 P.2d 929 (1984) (defense counsel may request a continuance over his client’s objection even when it will result in the setting of the trial beyond the 60-90 day rule). Defense counsel was in trial in another department for the last three continuances. Where it is a defense motion for a continuance, the time does not count towards the 60 day time for trial. State v. Greene, 49 Wn. App. 49, 58, 742 P.2d 152 (1987).
Though Holley did not consent to any of the continuances, it appears the trial court was well within its discretion in granting them. We hold that there was no violation of Holley’s speedy trial rights.
Affirmed.
A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.06.040, it is so ordered.
VAN DEREN, C.J. and QUINN-BRINTNALL, J., concur.
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