State Of Washington, Resp. vs. Reinhard Wysgoll, App.

I '..'-,,.•
201^ NOV 17 	AH 9:1*8
IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON
STATE OF WASHINGTON,
Respondent,
v.
REINHARD GEORG WYSGOLL,
Appellant.
No. 71202-1-1
DIVISION ONE
UNPUBLISHED OPINION
FILED: 	November 17, 2014
Leach, J. — Reinhard Wysgoll pleaded guilty to attempting to elude a pursuing
police vehicle. 	He appeals the sentencing court's calculation of his offender score,
arguing that two prior convictions for driving under the influence (DUI) and reckless
driving constitute the same criminal conduct. 	Because the DUI and reckless driving
offenses occurred at the same time and 	place and Wysgoll had the same objective
criminal intent, with the same victims, Wysgoll's DUI and 	reckless driving offenses
constitute 	the 	same 	criminal 	conduct. 	Thus, 	the 	sentencing 	court 	miscalculated
Wysgoll's 	offender 	score 	by 	counting 	the 	offenses 	separately. 	We 	remand 	for
resentencing consistent with this opinion.
Background
On October 21, 2013, Reinhard Wysgoll pleaded guilty to attempting to elude a
pursuing police vehicle on August 4, 2013. 	The State calculated Wysgoll's offender
score as 8 based on his prior convictions, resulting in a 17-22 month standard sentence
range. 	Wysgoll argued the trial court should treat two of his prior offenses for DUI and

No. 71202-1-1/2
reckless driving as the same criminal conduct, resulting in the lower offender score of 7,
producing a lesser 14-18 month standard sentence range.
Wysgoll's earlier offenses stemmed from 	events on 	December 14, 2012. 	At
about 11:46 p.m., Officer Lee and Officer Elias responded to a private citizen's report of
a suspicious occupied running vehicle. 	The citizen 	observed the occupants "doing
something with a gas can that is in the back seat." 	Officer Elias saw the occupants
"hunkered down as if hiding," so he turned his spotlight on the two people in the vehicle.
Elias later identified the driver as Wysgoll. 	Wysgoll looked around and rapidly reversed
the vehicle over a curb and into a large retaining wall. 	He then drove the car forward,
nearly striking Elias's patrol car. 	He rapidly reversed into the retaining wall a second
time and scraped against the side of the wall as he drove 200 feet in reverse. 	The
vehicle hit the curved part of the wall, ricocheted forward, and struck Elias's patrol car.
Wysgoll attempted to drive forward to get distance from the wall so he could reverse his
vehicle a third time, but Elias's car was too close. 	Elias detained Wysgoll and his
passenger.
Officers administered tests and determined Wysgoll was impaired by drug use.
They found "baggies" of suspected narcotics in the vehicle and a significant amount of
cash on Wysgoll's person. 	Wysgoll's passenger struck her head when Wysgoll backed
the vehicle into the retaining wall.
At sentencing for the current offense, defense counsel argued that because the
prior DUI and 	reckless driving charges were the same criminal conduct, Wysgoll's

No. 71202-1-1/3
offender score should be 7. 	The sentencing court found, however, that the two 2012
offenses were separate criminal conduct:
Okay. 	Thank you. 	Well, 	you know, this is one of those things
where I read the briefs and I thought, well, truly somebody has entered
this question now—by now, and I got as far as seeing that it is—this issue
is in front of the Court of Appeals, Division 	I, currently, but they're still
briefing—somebody's brief is due next week.
So, absent any guidance from them, I—I am not going to find that
it's the same criminal conduct because I—I don't think it has the same
purpose or intent. 	And so I think Mr.—so I am finding that Mr. Wysgoll is
an 8, that his standard range is 17 to 22 months.
The court added a point for each prior offense to Wysgoll's offender score and
imposed 	a 	residential 	Drug 	Offender 	Sentencing 	Alternative 	(DOSA) 	at Wysgoll's
request. 	Noncompliance with 	DOSA's 	requirements could 	result in Wysgoll's total
confinement for the time equal to one-half the midpoint of the standard sentence range.
Wysgoll appeals.
Analysis
Wysgoll challenges the trial court's calculation of his offender score. 	Wysgoll
claims that his DUI and reckless driving offenses constitute the "same criminal conduct,"
which would result in an offender score of 7. 	The State asserts that the trial court
correctly calculated Wysgoll's offender score at 8 because the two offenses did not
involve the same objective intent or the same victims.
A defendant can overcome a presumption that each conviction counts separately
for offender score purposes1 by establishing that two or more convictions constitute the
1 State v. Aldana Graciano, 176 Wn.2d 531, 539, 295 P.3d 219 (2013).
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No. 71202-1-1/4
same criminal conduct.2 	A sentencing court makes this determination by using the
"same criminal conduct" analysis prescribed by RCW 9.94A.589(1)(a).3 	This analysis
requires the court to ask if "two or more crimes . . . require the same criminal intent, are
committed at the same time and place, and involve the same victim."4 	If the defendant
fails to prove any element of this test, the court will count the offenses separately.5 To
apply 	the 	statute, 	a 	trial 	court 	makes 	factual 	determinations 	and 	exercises 	its
discretion.6
A sentencing 	court may not impose a 	sentence 	based 	on a 	miscalculated
offender score, and we review this calculation de novo.7 	However, we review a trial
2 Aldana Graciano, 176 Wn.2d at 539 (citing State v. Lopez, 142 Wn. App. 341,
351, 174 P.3d 1216 (2007)); In re Pers. Restraint of Markel, 154 Wn.2d 262, 274, 111
P.3d 249 (2005).
3 RCW 9.94A.525(5)(a)(i) directs the court to compute an offender score for
multiple prior convictions under RCW 9.94A.589(1)(a) and provides in pertinent part:
In the case of multiple prior convictions, for the purpose of computing the
offender score, count all convictions separately, except:
(i) Prior offenses which were found, under RCW 9.94A.589(1)(a), to
encompass the same criminal conduct, shall be counted as one offense,
the offense that yields the highest offender score. 	The current sentencing
court shall determine with respect to other prior adult offenses for which
sentences were served concurrently or prior juvenile offenses for which
sentences were served consecutively, whether those offenses shall be
counted as one offense or as separate offenses using the "same criminal
conduct" analysis found in RCW 9.94A.589(1)(a), and if the court finds
that they shall be counted as one offense, then the offense that yields the
highest offender score shall be used. 	The current sentencing court may
presume that such other prior 	offenses were not the same 	criminal
conduct from 	sentences 	imposed 	on 	separate 	dates, 	or 	in separate
counties 	or 	jurisdictions, 	or 	in 	separate 	complaints, 	indictments, 	or
informations.
4RCW9.94A.589(1)(a).
5 Aldana Graciano, 176 Wn.2d at 540 (citing State v. Maxfield, 125 Wn.2d 378,
402, 886P.2d 123(1994)).
6 State v. Nitsch. 100 Wn. App. 512, 523, 997 P.2d 1000 (2000).
7 State v. Johnson, 180 Wn. App. 92, 99-100, 320 P.3d 197, review denied, 181
Wn.2d 1003(2014).

No. 71202-1-1/5
court's determination of same criminal conduct for abuse of discretion or misapplication
of the law.8 	We generally construe the same criminal conduct provision narrowly.9 	We
will 	not disturb 	the trial court's decision 	unless 	it made a 	manifestly 	unreasonable
decision or based it on untenable grounds or reasons.10
Here, 	Wysgoll 	must 	show 	the 	sentencing 	court 	abused 	its 	discretion 	or
misapplied the law. 	The parties do 	not dispute that the DUI and 	reckless driving
offenses occurred at the same time 	and 	place. 	Therefore, we 	must decide if the
objective intent of the defendant changed from one offense to the other.11 To make this
determination, we look to "whether one crime furthered the other and if the time and
place of the two crimes remained the same."12 	We find relevant an analysis of whether
"numerous offenses [were] committed as part of a scheme or plan."13 	Courts also look
at "how intimately related the crimes committed are, and whether, between the crimes
charged, there was any substantial change in the nature of the criminal objective."14
Wysgoll argues that because "both crimes were part of the same episode and
involved the same objective—to get away from the responding officer," the court erred
when it did not find the same objective criminal intent for DUI and reckless driving. 	The
8 Aldana Graciano, 176 Wn.2d at 536.
9 State v. Porter. 133Wn.2d177, 181, 942 P.2d 974 (1997).
10 Johnson. 180 Wn. App. at 99-100 (quoting State v. Sisouvanh, 175 Wn.2d
607, 623, 290 P.3d 942 (2012)).
11 State v. Dunawav, 109 Wn.2d 207, 214-15, 743 P.2d 1237 (1987).
12 Dunawav. 109 Wn.2d at 215.
13 State v. Lewis, 	115 Wn.2d 294, 302, 797 P.2d 1141 	(1990) (citing State v.
Boze, 47 Wn. App. 477, 480, 735 P.2d 696 (1987)).
14 State v. Burns, 114 Wn.2d 314, 318, 788 P.2d 531 	(1990) (citing State v.
Edwards. 45 Wn. App. 378, 382, 725 P.2d 442 (1986), overruled on other grounds by
Dunawav, 109 Wn.2d at 215).
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No. 71202-1-1/6
State 	argues that "[bjecause 	DUI is 	a 	strict 	liability crime, 	the 	defendant 	had 	no
objective intent other than to drive [whereas] the defendant's objective intent in driving
recklessly was to elude Officer Elias."
Under Seattle's municipal code, DUI is a strict liability offense,15 requiring the
State to prove only that the act constituting the offense occurred.16 	To prove a DUI
offense, the State was required to show Wysgoll was under the influence while he
operated a 	vehicle.17 	A charge of reckless driving, 	however, 	requires "willful and
wanton disregard for the safety of person or property."18 	Thus, the two offenses do not
require proof of the same statutory mens rea.
Statutory mens rea may support a finding of same objective intent, but we do not
limit our analysis to the mens rea component of applicable criminal statutes. 	We also
review the defendant's objective criminal purpose in committing the crimes.19 Thus, the
fact that the DUI statute omits a mens rea component does not preclude a finding of
same criminal conduct. 	We must also review Wysgoll's objective criminal purpose in
committing the crimes.
15 Seattle Municipal Code (SMC) 11.56.020(A)(1) ("A person is guilty of driving
while under the influence of intoxicating Liquor, marijuana or any drug if the person
drives a vehicle within the City.").
16 State v. Deer, 175 Wn.2d 725, 731, 287 P.3d 539 (2012), cert, denied, 133 S.
Ct. 991 (2013).
17 See State v. Komoto, 40 Wn. App. 200, 205, 697 P.2d 1025 (1985).
18 SMC 11.56.120(A) ("Any person who drives any vehicle in the City in willful or
wanton disregard for the safety of persons or property is guilty of reckless driving.").
19 State v. Davis, 174 Wn. App. 623, 642, 300 P.3d 465 (quoting State v. Adame,
56 Wn. App. 803, 811,785P.2d 1144 (1990)). review denied, 178Wn.2d 1012(2013).

No. 71202-1-1/7
In State v. Dunawav,20 our Supreme Court 	reviewed 	three cases where the
defendants 	claimed 	that 	robbery 	and 	attempted 	murder 	were 	the 	same 	criminal
conduct. 	In two cases, 	the 	court decided 	robbery and 	attempted 	murder did 	not
constitute same criminal conduct.21 	It reasoned that one offense did not further the
commission of the other, and the statutory intents for each offense differed.22 	In the
third case, the court found that a kidnapping offense furthered the commission of a
robbery offense, 	and 	the 	robbery was the defendant's objective criminal 	intent for
both.23 	Thus, the court concluded that kidnapping and robbery constituted the same
criminal conduct.24
Here, 	the 	record 	supports 	the 	conclusion 	that Wysgoll's 	objective 	intent 	in
committing both the DUI and reckless driving was to escape the responding officer.
When Officer Elias approached the reported vehicle, he saw the vehicle's occupants
"hunkered down." 	Officer Elias turned on 	a spotlight. 	Only then did Wysgoll look
around and reverse the vehicle into a wall. 	The State makes no claim and the record
does not contain evidence that he drove the car or engaged in reckless driving before
Elias turned on his spotlight. 	Elias's spotlight prompted Wysgoll to begin to drive, which
led to the DUI. 	Wysgoll also drove recklessly. 	Evidence in the record supports a
conclusion that the DUI furthered the reckless driving charge and the two are intimately
related.
20 109 Wn.2d 207, 214-15, 743 P.2d 1237 (1987).
21 Dunawav. 109 Wn.2d at 216-17.
22 Dunawav, 109 Wn.2d at 216-17.
23 Dunawav. 109 Wn.2d at 217.
24 Dunawav, 109 Wn.2d at 217.

No. 71202-1-1/8
We turn next to whether the offenses harmed the same victim. 	Wysgoll argues
that the court erred because "[t]he victims for both of Wysgoll's crimes were the public
at large, the responding officer, and Wysgoll's passenger." 	The State asserts the DUI
victim was the community in general, while the victims of the reckless driving offense
were Officer Elias and Wysgoll's passenger.
RCW 	9.94A.030(53) 	defines 	"victim" 	as 	"any 	person 	who 	has 	sustained
emotional, psychological, physical, or financial injury to person or property as a direct
result 	of the 	crime 	charged." 	Though 	a 	DUI 	offense 	does 	not 	require 	a 	victim,
Washington law contemplates the existence of victims in some cases.25 	And while
reckless driving contemplates "persons or property" which 	may be affected by the
criminal harm, the 	law does not require the 	State to show the 	defendant put other
persons or property at risk to prove reckless driving.26 	Analyzing an accomplice liability
statute, the state Supreme Court has noted, "[M]any victims cannot be defined as such
until the crime is complete."27
In this case, as a result of both his intoxicated and reckless driving, Wysgoll
damaged Officer Elias's vehicle, injured his passenger, and caused the community at
large to suffer his criminal behavior. 	The municipal criminal complaint filed March 1,
2013, does 	not name 	a 	victim. 	The 	resulting 	"DUI 	RELATED 	JUDGMENT AND
SENTENCE" entered by Seattle Municipal Court listed both offenses and awarded one
2s Citv of Auburn v. Hedlund, 	165 Wn.2d 645, 652-53, 201 	P.3d 315 (2009)
(defendant was a victim of DUI and reckless driving and thus did not have liability under
accomplice statute).
26 State v. Amurri, 51 Wn. App. 262, 267, 753 P.2d 540 (1988).
27 Hedlund. 165 Wn.2d at 652.
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No. 71202-1-1/9
restitution amount to the Seattle Police Department. 	Both offenses involved the same
victims and produced the same harm to them.
Because Wysgoll's DUI and reckless driving offenses were committed at the
same time and place, involved the same criminal intent, and had the same victims, they
constitute the same criminal conduct for offender score purposes.
Conclusion
Because 	Wysgoll's 	DUI 	and 	reckless 	driving 	offenses 	constitute 	the 	same
criminal conduct, the trial court erred when it counted them separately for the purposes
of Wysgoll's offender score. We remand for resentencing consistent with this opinion.
WE CONCUR: