Appeal from Superior Court of King County. Docket No: 94-1-04555-1. Date filed: 03/27/95. Judge signing: Hon. Richard M. Ishikawa.
Authored by Walter E. Webster. Concurring: H. Joseph Coleman, Ann L. Ellington.
The opinion of the court was delivered by: Webster
WEBSTER, J. -- Jason Sutton appeals his exceptional sentence. We disagree with his contention that first degree kidnapping and first degree child molestation constituted the same criminal conduct for sentencing purposes. Because the court properly determined that abuse of trust was an appropriate aggravating factor, it did not err in imposing consecutive sentences. Nor does the sentence constitute cruel and unusual punishment.
The State concedes, however, that the trial court improperly calculated the offender score for count four. Thus, we remand for rescoring of that count, but otherwise affirm Sutton's sentence.
Sutton, wearing a security guard uniform, approached a group of children playing outside. He identified himself as a police officer and asked Michelle, age 13, to accompany him to "the station" for "questioning." She refused, but nine-year-old Tommy volunteered. Sutton agreed as long as "at least one girl" went also. Sutton drove Tommy and Jill, age 11, to the retirement home where he worked, placed them in handcuffs, and separated them "for questioning." He then sexually molested Jill.
A jury convicted Sutton of five counts: (1) criminal impersonation, (2) attempted first degree kidnapping of Michelle, (3) second degree kidnapping of Tommy, (4) first degree kidnapping of Jill, and (5) first degree child molestation of Jill.
The sentencing court determined that counts four and five (kidnapping and molestation of Jill) were not the same criminal conduct because they did not occur at the same time and place and calculated the offender score accordingly. The court imposed standard range sentences for each count.
Because counts two and four are serious violent offenses, the court noted that they run consecutively as a matter of law. The court determined that Sutton would serve counts two through five consecutively based on the aggravating factor of abuse of trust and because of the special finding that count two was sexually motivated. In all, the court imposed 479 months and ordered that the sentence run consecutively to Sutton's Pierce County sentence for killing his grandfather.
I. Calculation of Offender Score
Sutton contends that the trial court erred in determining that the kidnapping and child molestation counts did not constitute the same criminal conduct.
Under the Sentencing Reform Act (SRA), the standard range for each current offense is determined using other current offenses as if they were prior convictions for purposes of calculating the offender score. RCW 9.94A.400(1)(a). If, however, the court finds that multiple current offenses encompass the "same criminal conduct," those offenses are counted as one crime for scoring purposes. Id. "Same criminal conduct" means "two or more crimes that  require the same criminal intent,  are committed at the same time and place, and  involve the same victim." Id. Here, the trial court determined that, although the two crimes involved the same criminal intent and the same victim, they did not occur at the same time and place because the kidnapping occurred when Sutton removed the children from their neighborhood and the child molestation occurred later at Sutton's place of employment.
Sutton contends that the two crimes occurred at the same time and place because kidnapping is a continuing crime that was still in process when he molested Jill. We ...