¶41 (concurring in part and dissenting in part) I agree with and concur in Cody J. Kloepper’s convictions and the resolution of the identification, ineffective assistance, and juror selection issues. I disagree solely with the trial court’s consecutive sentencing for first degree assault and first degree rape. In my view, the facts show “same criminal conduct” within the meaning of RCW 9.94A-.589(l)(a), not “separate and distinct criminal conduct” under RCW 9.94A.589(l)(b). Our sole focus is “same criminal intent” because the parties agree the facts show the same victim, time, and place. Three parts of the record show Mr. Kloepper’s criminal intent from beginning to end was assaulting D.W. to accomplish D.W.’s rape.
*359¶42 First, at the beginning, soon after his frustrated sexual encounter with a third person in his search for random sex, Mr. Kloepper entered D.W.’s apartment shirtless at 4:00 a.m. on a freezing winter’s day and began brutally assaulting her. D.W. described Mr. Kloepper’s Obama remark as a “sarcastic” answer to her question why all this was happening. Report of Proceedings (RP) at 137. Mr. Kloepper’s criminal intent to rape then became plain to D.W. and objectively explains her submissive response “just do it [the rape] and get it [the rape] over with.” RP at 129-30. D.W.’s explanation regarding Mr. Kloepper’s criminal intent is undisputed; D.W. submitted to his rape to end the assault. Thus, according to D.W., the assault furthered the rape. Therefore, any other explanation is unpermitted conjecture.
¶43 Second, Mr. Kloepper communicated his true response to D.W.’s question and her submission with nonverbal conduct by immediately abating his assault and making her kneel so he could penetrate her. Mr. Kloepper used latex gloves he brought with him for that exact purpose, further revealing his intent throughout to rape D.W.
¶44 Third, at the end of D.W.’s ordeal, Mr. Kloepper threatened if she reported him, he would “come back and finish it off [singularly referring to the brutal rape].” RP at 131. Mr. Kloepper’s threat unequivocally establishes the “same criminal intent” throughout D.W.’s assault and rape.
¶45 In sum, I would reverse the trial court’s consecutive sentencing of Mr. Kloepper for first degree rape and first degree assault because the facts solely support a “same criminal conduct” finding under RCW 9.94A.589(l)(a). Accordingly, I respectfully dissent.
Review denied at 180 Wn.2d 1017 (2014).