State v. Thomas ( 2010 )

Quinn-Brintnall, J.

¶14 (concurring) — I concur because under State v. Hall, 168 Wn.2d 726, 230 P.3d 1048 (2010), and the specific facts of this case, I am compelled to do so. I write separately to caution against extending Hall's witness tampering unit of prosecution to cases that contain substantially different facts.

¶15 Combining temporally separate and escalating tampering actions together can distort the impact of a defendant’s actions. From the victim’s/witness’s perspective, every time he/she is unexpectedly contacted by the defendant with another argument, attack, or demand intended to influence his/her testimony or induce them to refuse to honor a subpoena, it is a new, separate, potentially disturbing experience. Moreover, although not present here, each contact may be more insistent and threatening than the last. The Hall court apparently acknowledged this when it explicitly stated that it did “not reach whether or when additional units of prosecution, consistent with this opinion, may be implicated if additional attempts to induce are interrupted by a substantial period of time, employ new and different methods of communications, involve intermediaries, or other facts that may demonstrate a different course of conduct.” 168 Wn.2d at 737-38 (emphasis added).

¶16 In addition, I note that the Hall analysis is confusing because it conflicts with the definition of “same criminal conduct.” A sentencing court does not treat tampering convictions that relate to events that took place at different times as the same criminal conduct for sentencing purposes. Two or more crimes constitute the “same criminal conduct” for purposes of sentencing when each is committed (1) with the same criminal intent, (2) at the same time and place, and (3) against the same victim. RCW 9.94A.589(l)(a) (emphasis added). The definition of “same criminal conduct” is narrowly construed and requires proof of all three elements to support a “same criminal conduct” determination. State v. Vike, 125 Wn.2d 407, 410, 885 P.2d 824 (1994).

¶17 Treating a defendant’s temporally separated tampering actions as the same crime is inconsistent with (1) the long-standing charging principles that require demarcations by time and initiation, (2) the executive prosecutor’s authority to determine the appropriate charges, and (3) the sentencing court’s authority to determine the appropriate standard range sentence.

¶18 Accordingly, although I question the application of the Hall court’s analysis in cases with substantially different facts than Hall, I concur with the majority that Hall’s analysis is appropriate on the facts of this case.