Appeal from Superior Court of Skagit County. Docket No: 94-1-00452-1. Date filed: 04/06/95. Judge signing: Hon. Stanley K. Bruhn.
Authored by H. Joseph Coleman. Concurring: William W. Baker, C. Kenneth Grosse.
The opinion of the court was delivered by: Coleman
COLEMAN, J. -- Raul Alvarez-Mejia was convicted of involving a minor in drug dealing, conspiring to deliver a controlled substance, and possessing a controlled substance with the intent to deliver. The trial court determined that the three offenses constituted the same criminal conduct under RCW 9.94A.400(1)(a). The State appeals that determination, arguing that the offenses do not constitute the same criminal conduct because the crimes had different intents, occurred at different times and places, and had different victims. We hold that the overall intent of the crimes was the same: possessing a controlled substance with the intent to deliver it. We further find that the trial court did not abuse its discretion in determining that the time, place, and victims of the crimes were the same. We therefore affirm.
Alvarez-Mejia was charged with: (1) involving a person under age eighteen in a transaction to unlawfully sell or deliver a controlled substance on November 3, 1994, RCW 69.50.401(f); (2) conspiring with Crystal Cabello, Miranda Wilson, and other unknown persons to deliver a controlled substance on or about October or November 1994, RCW 69.50.401(a) & RCW 69.50.407; and (3) possessing a controlled substance with intent to deliver on November 3, 1994, RCW 69.50.401(a).
At trial, postal inspector Martin Pfefer testified that on November 2, 1994, he noticed a suspicious package addressed to sixteen-year-old Crystal Cabello. After confirming that the package contained cocaine, Pfefer contacted the Skagit County Narcotics Task Force, who agreed that Pfefer should deliver the package. After Pfefer made the delivery, the officers executed a search warrant and arrested Cabello.
Cabello testified that her then best friend, fifteen-year-old Miranda Wilson, had told her that the package was coming a day or two before it arrived and that it contained baby clothes. While the police were interviewing Cabello, Wilson called and asked if the police were there. Cabello said no. Alvarez-Mejia, Wilson's boyfriend, then called and repeated the question. Cabello again said no. After a third phone call from Wilson, Cabello called Wilson and told her to pick up the package. The police waited for Wilson and Alvarez-Mejia 's arrival. When they arrived, Cabello motioned for them to come in the house, but Wilson declined, asking Cabello to bring the package out to the car. Cabello then entered the car with the package. Wilson and Alvarez-Mejia were then arrested.
Both Wilson and Cabello were prosecuted for their involvement in the incident. Wilson pleaded guilty in juvenile court to conspiracy to deliver cocaine.
Detective Kyle Spevacek testified that Alvarez-Mejia told him that he was intending on selling the cocaine at the Sunrise Apartments. Detective Greg Adams also heard Alvarez-Mejia relay this information.
Alvarez-Mejia was convicted on all three charges. At the sentencing hearing, defense counsel argued that the three crimes constituted the same criminal conduct because the overall purpose was to possess and distribute cocaine. The court agreed, finding that the crimes involved the same criminal conduct.
The sole issue on appeal is whether the trial court erred in finding that the three crimes constituted the same criminal conduct. The State contends that the three crimes--involving a minor in a transaction to deliver a controlled substance, conspiring to deliver a controlled substance, and possessing with intent to deliver--do not constitute the same criminal conduct because the crimes involved different intents, victims, and times and places. The trial court's determination of what constitutes the same criminal conduct for purposes of calculating the offender score is reviewed for abuse of discretion. State v. Burns, 114 Wash. 2d 314, 317, 788 P.2d 531 (1990); State v. Dolen, 83 Wash. App. 361, 364, 921 P.2d 590 (1996), review denied, 131 Wash. 2d 1006, 932 P.2d 644 (1997).
Whenever a person is sentenced to two or more current offenses, the sentence range is generally determined by using all other current convictions as if they were prior convictions for purposes of the offender score. RCW 9.94A.400(1)(a). If, however, the trial court determines that the offenses constituted the "same criminal conduct," those current offenses shall be counted as one crime. RCW 9.94A.400(1)(a). To constitute the "same criminal conduct," both crimes must involve: (1) the same criminal intent; (2) the same victim; and (3) the same time and place. RCW 9.94A.400(1)(a); State v. Maxfield, 125 Wash. 2d 378, 402, 886 P.2d 123 (1994).
In determining criminal intent, we look at the extent to which criminal intent, when objectively viewed, changed from one crime to the next. State v. Dunaway, 109 Wash. 2d 207, 215, 743 P.2d 1237 (1987). This often requires an examination of whether the offenses were committed as part of a scheme or plan or whether one crime furthered another. State v. Vike, 125 Wash. 2d 407, 411, 885 P.2d 824 (1994). If the facts are sufficient to support either finding, same criminal intent or not, the appellate court defers to the trial court's determination of what constitutes the same criminal conduct. State v. Rodriguez, 61 Wash. App. 812, 816, 812 P.2d 868, review denied, 118 Wash. 2d 1006, 822 P.2d 288 (1991).
Here, the State argues that the offenses do not involve the same criminal intent because the crimes' intents, as revealed by statute, are distinct. This narrow interpretation of the term "intent" is contrary to recent Supreme Court authority, which looked at "'one overall criminal purpose'" in determining whether possessing cocaine with the intent to deliver and possessing heroin with the intent to deliver constituted the same criminal conduct. See Vike, 125 Wash. 2d at 411. Here, the "overall criminal purpose" was to distribute drugs in the future. Thus, the crimes of conspiracy and involving a minor in a drug transaction furthered the possession with intent crime.
The State argues that Alvarez-Mejia used minors to shield himself, and thus, the involving minors crime has a distinct intent. We defer to the trial court's discretion when the facts are sufficient to support either finding. See Rodriguez, 61 Wash. App. at 816. Consequently, we hold that the trial court did not abuse ...