Opinion
No. 26337-1-III.
August 21, 2008.
Appeal from a judgment of the Superior Court for Kittitas County, No. 06-1-00352-6, Michael E. Cooper, J., entered July 16, 2007.
Affirmed in part and remanded by unpublished opinion per Schultheis, C.J., concurred in by Kulik and Korsmo, JJ.
A jury convicted Michael J. Dewey of third degree assault of a child against his 14-day-old daughter with a special finding that the victim was particularly vulnerable. Based on this finding, the trial court imposed an exceptional sentence of 60 months. On appeal, Mr. Dewey contends the trial court erred in basing the sentence on the vulnerability of the victim and that the sentence exceeds the statutory maximum.
FACTS
On May 24, 2006, Mr. Dewey was at home caring for his 14-day-old daughter, A.D., while A.D.'s mother was out of the house. During this time, Mr. Dewey dropped A.D. on a space heater, resulting in superficial burns to the infant's chest, face, and fingers, and a deeper burn to her forearm. When A.D.'s mother returned home, she and Mr. Dewey took A.D. to Dr. Elizabeth Wise for treatment. Dr. Wise evaluated and treated the burns. She later referred A.D. to Harborview Medical Center for treatment.
Physicians at Harborview called in Dr. Naomi Sugar, a child abuse consultant, to evaluate A.D. Dr. Sugar concluded that Mr. Dewey's version of events was inconsistent with A.D.'s injuries and she notified Child Protective Services. After investigating the case, the State charged Mr. Dewey with first degree assault of a child and in the alternative, third degree assault of a child with the aggravating factor that the victim was particularly vulnerable.
During trial, doctors who treated A.D. testified about her burns. Dr. Sugar testified that most of A.D.'s burns were superficial and healed on their own, with the exception of the burn on her forearm, which required a skin graft. She questioned Mr. Dewey's description of the fall, explaining that the pattern of the burns was inconsistent with a single fall on a heater. She also testified that a 14-day-old infant has limited mobility, stating, "A baby this age doesn't have a whole lot of ability to move independently. They can flail their arms or move their arms but they don't have a whole lot of ability to move." Report of Proceedings (RP) (June 19, 2007) at 32. She also testified that a very young infant is uncoordinated and cannot crawl, but can reflexively withdraw from pain and heat.
In contrast, Dr. Wise had no trouble reconciling Mr. Dewey's version of events with A.D.'s pattern of burns, explaining, "I was imagining that as the baby fell there was sort of glancing contacts with the cheek and chest, which were much less severely burned as the weight came down more contact time with the arm and hands and on down to the floor and off the heater." Id. at 84. She also testified that babies have a grab reflex, which would account for the burns on A.D.'s hands.
William Schneck, a crime reconstructionist for the Washington State Patrol crime lab, was asked to evaluate whether A.D' s burns could have been caused by contact with a space heater for 4 seconds, as claimed by Mr. Dewey. He testified that he tried to replicate A.D.'s burns by placing a chicken breast covered with a baby's undershirt, on Mr. Dewey's space heater, which was set at its highest temperature. He testified that the chicken breast did not burn after 4 seconds on the heater, or even after 60 seconds. He ultimately concluded that A.D.'s burns were inconsistent with contact from a heater for about 4 seconds.
Mr. Dewey told detectives different stories. Detective Jerry Shuart stated that he first interviewed Mr. Dewey on June 22. On that date, Mr. Dewey told Detective Shuart that he was carrying A.D. in his left arm when he dropped his cell phone, which he was carrying in his right hand. As he bent to pick up his cell phone, A.D. fell from his arm and landed on the heater. He told the detective that he froze and did not remove her from the heater for 4 to 6 seconds. During a second interview, Mr. Dewey told Detective Shuart that A.D. could have been on the heater for as long as 25 to 30 seconds.
Another detective testified that when he confronted Mr. Dewey with the crime lab reports and asked him why he changed the length of time A.D. was on the heater, Mr. Dewey responded, "`Well, I said it could have been. . . . I wasn't saying I wasn't for sure that she was on there for 25 seconds, but I would say more like a 10, 15 seconds around that time. I wouldn't say more though.'" RP (June 20, 2007) at 103-04.
Mr. Dewey testified that on the afternoon of May 24, A.D. was sleeping in a swing next to a desk where he was sitting. He picked her up when she became fussy and walked around the living room trying to console her. When she settled down, he carried her back to her swing. As he walked by the space heater, he dropped his cell phone, which he had been holding in his right hand. As he bent down to pick up the phone, A.D. fell, hitting her head on the heater and knocking it over. She then landed on top of the heater. He explained that he went into shock, which caused a delay of 4 to 6 seconds before he picked her up. He also explained that he felt pressured by law enforcement to state that A.D. may have been on the heater for closer to 25 to 30 seconds.
The jury convicted Mr. Dewey of assault of a child in the third degree. The jury also returned a special finding that "the defendant knew or should have known that the victim of the current offense was particularly vulnerable or incapable of resistance." Clerk's Papers at 91.
Mr. Dewey's standard range sentence was 4 to 12 months. The State asked for an exceptional sentence of 36 months based on the child's particular vulnerability due to her extreme youth. The trial court imposed an exceptional sentence of 60 months based on the victim's vulnerability. The judge explained to Mr. Dewey, "It was more than a tragic accident the jury found in addition to being criminally negligent there was the statutory aggravating factor that basically determined that you violated your obligation to your child to care for in a decent reasonable fatherly manner. She was extremely vulnerable . . . a 14 day old child can't defend herself to anything." RP (July 16, 2007) at 6. Mr. Dewey appeals the exceptional sentence.
ANALYSIS
Mr. Dewey first argues that his total sentence, including his term of community custody, is unlawful because it exceeds the five-year statutory maximum for the offense. Relying on State v. Sloan, 121 Wn. App. 220, 87 P.3d 1214 (2004), the State asserts that the trial court did not err in imposing community custody, but concedes that, under Sloan, we should remand for the trial court to clarify that the total of incarceration and community custody cannot exceed the maximum sentence.
Generally, a trial court may not impose a sentence providing for a term of confinement or community custody that exceeds the statutory maximum for the crime. Id. at 221; RCW 9.94A.505(5). In State v. Zavala-Reynoso, 127 Wn. App. 119, 124, 110 P.3d 827 (2005), this court remanded for resentencing where the combined total of a defendant's community custody term and standard range sentence exceeded the statutory maximum term. Similarly, in Sloan, Division One of this court recommended that when a trial court imposes community custody potentially in excess of the statutory maximum for an offense, the trial court should set forth the maximum sentence and state that the total of incarceration and community custody cannot exceed that maximum. Sloan, 121 Wn. App. at 223-24.
Third degree assault of a child is a class C felony offense. RCW 9A.36.140(2). The statutory maximum for a class C felony is five years. RCW 9A.20.021(1)(c). The trial court imposed an exceptional sentence of 60 months and 9 to 18 months of community custody. Therefore, Mr. Dewey's total combined sentence on the conviction exceeds the statutory maximum of 5 years. Accordingly, we remand to allow the trial court to correct the sentence to clarify that the combined term of confinement and community custody shall not exceed 60 months.
Next, Mr. Dewey challenges his exceptional sentence, contending the court erred in relying on the jury's finding that the victim was particularly vulnerable. He argues that this factor inheres in the offense of child assault, violates the real facts doctrine, and was not a substantial factor in the commission of the offense.
We first address the real facts claim. The real facts doctrine precludes a trial court from considering unproved facts or facts probative of a more serious crime at sentencing. State v. Quiros, 78 Wn. App. 134, 138-39, 896 P.2d 91 (1995); RCW 9.94A.530(2). We have noted that the purpose of a real facts hearing is to protect the defendant from "`consideration of unreliable or inaccurate information.'" State v. Morreira, 107 Wn. App. 450, 456-57, 27 P.3d 639 (2001) (quoting State v. Handley, 115 Wn.2d 275, 282, 796 P.2d 1266 (1990)). RCW 9.94A.530(2) codifies the doctrine as follows:
In determining any sentence other than a sentence above the standard range, the trial court may rely on no more information than is admitted by the plea agreement, or admitted, acknowledged, or proved in a trial or at the time of sentencing, or proven pursuant to RCW 9.94A.537. Acknowledgment includes not objecting to information stated in the presentence reports.
Mr. Dewey does not explain how the real facts doctrine is violated in this case. He does not allege that the jury's finding of victim vulnerability is unproven, inaccurate, or establishes a more serious crime. Moreover, he failed to dispute the jury's finding at sentencing; therefore, this finding is deemed acknowledged for the sentencing court's consideration. Handley, 115 Wn.2d at 282, 286. The Handley court stated that if a defendant disputes any of the information presented at sentencing, he or she must make a timely challenge, which in turn, requires the sentencing court to hold an adversary hearing or not consider the information. Id. at 286. Because Mr. Dewey failed to challenge the court's finding below, his argument fails.
Next, Mr. Dewey argues that A.D.'s vulnerability is an improper aggravating factor because he did not exploit her vulnerability in the commission of the crime. He points out that third degree child assault has a mens rea of negligence, the lowest degree of culpability. He concedes that A.D. was vulnerable and that he was aware of her vulnerability, but that he lacked the mental state to take advantage of her vulnerability. He also contends that A.D.'s young age was of little significance to her injuries, noting, "When a child falls onto or into a space heater, a multitude of outcomes may result. The most likely result is the child will receive burns. Age has little, or no, impact on the injury received." Br. of Appellant at 8. Finally, Mr. Dewey argues that the legislature accounted for the vulnerability of children when it enacted the child assault statutes; therefore, the sentencing court improperly relied on a factor already taken into consideration by the legislature in establishing the presumptive sentence.
When reviewing an exceptional sentence, we evaluate whether the sentencing court's reasons are supported by the record. State v. Nordby, 106 Wn.2d 514, 517, 723 P.2d 1117 (1986). This is a factual question. Therefore the sentencing court's reasons will be upheld unless they are clearly erroneous. State v. Garibay, 67 Wn. App. 773, 777, 841 P.2d 49 (1992); Nordby, 106 Wn.2d at 517-18. "We will reverse the trial court's findings only if no substantial evidence supports its conclusion." State v. Grewe, 117 Wn.2d 211, 218, 813 P.2d 1238 (1991). We also independently determine whether the trial court's reasons are substantial and compelling and whether, as a matter of law, they justify an exceptional sentence under a de novo standard of review. State v. Russell, 69 Wn. App. 237, 250, 848 P.2d 743 (1993).
The Sentencing Reform Act of 1981 provides that the trial court may consider that "[t]he defendant knew or should have known that the victim of the current offense was particularly vulnerable or incapable of resistance." RCW 9.94A.535(3)(b). It is well settled that "[e]xtreme youth is a valid aggravating factor when considering the vulnerability of a victim." State v. Berube, 150 Wn.2d 498, 513, 79 P.3d 1144 (2003).
Mr. Dewey's argument that victim vulnerability cannot justify an exceptional sentence when a defendant lacks the mental state to exploit a victim's vulnerability has been rejected. In State v. Jones, 59 Wn. App. 744, 753, 801 P.2d 263 (1990), the court stated, "the mens rea element of the crime with which the defendant is charged has no relevance; instead, what is critical is whether the defendant knew or should have known of the victim's vulnerability, and whether the particular vulnerability was a substantial factor in accomplishment of the crime."
In Jones, the defendant was convicted of first degree manslaughter for the death of his 4-month-old son and given an exceptional sentence based on the victim's vulnerability. On appeal, he argued that because he was convicted of an offense requiring a mental state of recklessness, there was no evidence he possessed the requisite mental state to exploit the infant's vulnerability. The court rejected his argument, concluding, "There is no question here but that 4-month-old Kaylon was vulnerable because of his extreme youth . . . There can be no doubt that the defenselessness of the child and his susceptibility to injury as an infant played a substantial part in the cause of his death." Id. at 754. Similarly here, Mr. Dewey's mental state is immaterial. Instead, we focus on A.D.'s extreme youth, which substantially contributed to her injuries.
We next address Mr. Dewey's argument that A.D.'s vulnerability is not distinguishable from other children's vulnerability contemplated by the legislature in establishing the standard range for third degree assault of a child. Generally, the victim's age cannot be used to justify an exceptional sentence when age is an element of the crime because age is already factored into the sentence. Garibay, 67 Wn. App. at 778. However, we also recognize that all victims of an offense are not equally vulnerable. See, e.g., State v. Fisher, 108 Wn.2d 419, 424, 739 P.2d 683 (1987) ("To prohibit consideration of the age of the victim in a particular case in sentencing would be to assume that all victims of this offense were equally vulnerable regardless of their age, an unrealistic proposition."). Therefore, in cases where the "extreme youth of the victim in fact distinguishes the victim significantly from other victims of the same crime," such youth justifies a departure from the standard sentencing range. Garibay, 67 Wn. App. at 779; see also Russell, 69 Wn. App. 237.
In Garibay, we emphasized, "When analyzing particular vulnerability, the focus is on the victim: Was the victim more vulnerable to the offense than other victims due to extreme youth, advanced age, disability, or ill health and did the defendant know of that vulnerability?" Garibay, 67 Wn. App. at 778. Mr. Dewey contends that A.D.'s youth rendered her no more vulnerable to the crime of third degree assault than an older child. We disagree.
Third degree assault of a child is defined in part as follows: "A person eighteen years of age or older is guilty of the crime of assault of a child in the third degree if the child is under the age of thirteen." RCW 9A.36.140(1). Thus, this statute applies to a victim considerably older than A.D.
The length of time A.D. was on the heater is disputed. But even if we accept Mr. Dewey's claim that A.D. was on the heater for 4 to 6 seconds, this is longer than an older child would have remained. As the sentencing court correctly pointed out, a 14-day-old infant is completely defenseless. Unlike an infant, an older child could have immediately crawled or walked away from the heater. Under the circumstances of this case, a virtually immobile infant is far more vulnerable than an older child. Division One of this court has characterized a 3-week-old child "a classic illustration of a vulnerable victim." State v. Bartlett, 74 Wn. App. 580, 593, 875 P.2d 651 (1994), aff'd, 128 Wn.2d 323, 907 P.2d 1196 (1995).
Particular vulnerability, as a matter of law, justifies an exceptional sentence. State v. Baird, 83 Wn. App. 477, 487, 922 P.2d 157 (1996). We therefore conclude that the trial court did not err in relying on the victim's vulnerability to support the exceptional sentence.
CONCLUSION
We affirm Mr. Dewey's sentence outside the standard range, but remand for correction of the judgment and sentence to state that the total period of confinement and community custody cannot exceed the maximum sentence allowed by law.
A majority of the panel has determined that this opinion will not be printed in the Washington Appellate Reports but it will be filed for public record pursuant to RCW 2.06.040.
KULIK, and KORSMO, JJ., concur.