Appeal from Superior Court of Pierce County. Docket No: 94-1-05202-2. Date filed: 05/09/95. Judge signing: Hon. Terry D. Sebring.
As Amended. Petition for Review Granted October 7, 1997,
Authored by Carroll C. Bridgewater. Concurring: Karen G. Seinfeld, Elaine M. Houghton.
The opinion of the court was delivered by: Bridgewater
BRIDGEWATER, J.--George Clifton Williams appeals the sentencing court's determination that two drug deliveries were not the same criminal conduct and that he was armed during the commission of the crimes. We hold that regardless of the contemporaneity of the sales to two state informants, when viewed objectively, two separate transactions with two separate buyers support a different intent with respect to each buyer.
Also, when the weapon is within view of the participants in a drug transaction, in the same room, and handled by the seller, there are sufficient facts to support the special verdict that the defendant was armed. We affirm.
During a lengthy investigation of Williams, Pierce County detectives organized several controlled buys using two informants, Alberto and Mike.
On November 9, 1994, Alberto called Williams and ordered crack cocaine either for just himself or for both him and Mike, "ups on a hundred and whatever Mike got." *fn1 Williams told Alberto and Mike to go to a specific Pierce County residence. Mike and Alberto entered the residence at 9:25 p.m. and sat down with Williams at the kitchen table. Williams sold each informant ten rocks of cocaine. First, Williams sold cocaine to Alberto in exchange for $100. Then, Williams sold cocaine to Mike in exchange for $100. Williams showed the informants a .45 caliber pistol that was in the kitchen, on top of the refrigerator, and handled the pistol during the visit. At one point, Mike put a bullet in the chamber. The informants left the residence and recontacted the detectives at 9:43 p.m.
Pierce County charged Williams with six counts of delivery arising out of its extensive investigation, but the jury convicted Williams of only two counts of delivery, counts 3 and 4, based on the transactions described above. A jury convicted Williams by special verdict form of two counts of unlawful delivery of a controlled substance, RCW 69.50.401(a)(1)(i). . .
At sentencing, Williams argued that counts 3 and 4 encompassed the same criminal conduct because only one informant called to arrange delivery, and because neither informant could remember whether Williams left the drugs on the table for one transaction or delivered the cocaine from his pocket in separate consecutive transactions. The State argued that the offenses were not the same criminal conduct because they did not occur at the same time, but consecutively, and they involved two deliveries to two people. The sentencing court determined that the two counts were not the same criminal conduct and, with the 12-month deadly weapon enhancement, sentenced Williams to 60 months for each count, the sentences to run concurrently.
Williams contends that the court misapplied RCW 9.94A.400(1)(a) because all three prongs of the "same criminal conduct test" were met. If concurrent offenses encompass the same criminal conduct, they are treated as one crime for the purposes of calculating the offender's sentence. RCW 9.94A.400(1)(a); State v. Vike, 125 Wash. 2d 407, 410, 885 P.2d 824 (1994).
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." RCW 9.94A.400(1)(a). All three prongs must be met, and the absence of any one prong prevents a finding of "same criminal conduct."
State v. Lessley, 118 Wash. 2d 773, 778, 827 P.2d 996 (1992).
Williams contends that, objectively viewed, he had the same criminal intent with respect to both counts because he intended to deliver to both informants at the same time and, therefore, the one transaction furthered the other. The State contends that multiple deliveries accomplished sequentially do not involve the same criminal intent ...