Opinion
No. 20711-1-III
Filed: March 6, 2003 UNPUBLISHED OPINION
Appeal from Superior Court of Spokane County Docket No: 01-1-00554-6 Judgment or order under review Date filed: 11/28/2001
Counsel for Appellant(s), Susan Marie Gasch, Attorney at Law, P.O. Box 30339, Spokane, WA 99223-3005.
Counsel for Respondent(s), Kevin Michael Korsmo, Attorney at Law, 1100 W Mallon Ave, Spokane, WA 99260-2043.
Andrew J. III Metts, Spokane County Pros Offc, 1100 W Mallon Ave, Spokane, WA 99260-0270.
Brach E. Norris briefly touched a five-year-old girl between the legs on the outside of her clothing. He was subsequently convicted of first degree child molestation. Because he had a previous child molestation conviction, Mr. Norris was sentenced under the Persistent Offender Accountability Act (POAA) to life in prison without the possibility of parole. He appeals, contending his sentence is grossly disproportionate to the crime. We affirm.
FACTS
Mark Hyndman was at a Spokane McDonald's with his stepchildren and wife. His stepdaughter, C.D., was five years old at the time. Mr. Hyndman noticed Mr. Norris watching the children in the playroom. He also saw Mr. Norris interacting with the children who were throwing balls against netting.
Mr. Hyndman testified that he began to feel something odd was happening — he noticed Mr. Norris was pacing in the play area, would stop at a table, and then would resume pacing. Mr. Norris appeared very interested in the children and repeatedly returned to a position where he could look up into the tubes where the children were playing. Mr. Hyndman believed that Mr. Norris was trying to hide from his view. Concerned about Mr. Norris's conduct, Mr. Hyndman moved to the play area where he could observe his stepdaughter.
At that time, Mr. Norris approached Mr. Hyndman and asked him if he was babysitting. Mr. Hyndman was uncomfortable with how close Mr. Norris was standing to him, and he could smell alcohol on Mr. Norris's breath. Mr. Hyndman moved away. Mr. Norris followed and tried to engage Mr. Hyndman in a conversation. Mr. Norris returned to watching the children, who were playing on a slide. As C.D. came down the slide, Mr. Hyndman saw Mr. Norris reach down and touch C.D. between the legs. Mr. Hyndman said, `It was very clear that he reached down to fondle her. There was no question about it; I saw it. I saw his fingers moved and he was right in between her legs, and then he stood right back up as if nothing had ever happened.' Report of Proceedings (RP) at 881. Mr. Hyndman grabbed Mr. Norris and pushed him out of the play area, into the restaurant. Mr. Norris freed himself and ran away, with Mr. Hyndman in pursuit. Eventually, the police took Mr. Norris into custody. Mr. Norris testified that he was only trying to prevent the child from falling off the slide. He stated that he only put his hand on her ankle and then on her upper body to push her up the slide.
A jury convicted Mr. Norris of first degree child molestation. At his sentencing hearing, the court noted that Mr. Norris had a prior strike under the POAA. The court explained that the prior strike, a 1991 plea to first degree molestation, involved the same type of behavior and also involved a young, female child. Mr. Norris's history included a number of probation violations, in which the major violation was having contact with minors without being properly supervised. Mr. Norris was sentenced as a persistent offender under the POAA. The court sentenced him to life in prison without the possibility of parole. Mr. Norris appeals.
ANALYSIS
Mr. Norris contends that his sentence of life of imprisonment without the possibility of parole constitutes cruel and unusual punishment, based on the facts of this case.
The Eighth Amendment to the United States Constitution bars cruel and unusual punishment. Article I, section 14 of the Washington Constitution prohibits cruel and unusual punishment and provides more protection than its federal counterpart. State v. Fain, 94 Wn.2d 387, 392, 617 P.2d 720 (1980) (life sentence for third conviction for writing bad checks was cruel and unusual). Article I, section 14 protects against sentences that are grossly disproportionate to the crime committed. State v. Morin, 100 Wn. App. 25, 29, 995 P.2d 113, review denied, 142 Wn.2d 1010 (2000).
Because the Washington Constitution is more protective than the Eighth Amendment, this court first considers whether the state constitution bars the punishment and, if the sentence passes scrutiny under the state provision, we need not address the federal constitution. State v. Thorne, 129 Wn.2d 736, 772-73, 921 P.2d 514 (1996).
To determine if a sentence of life in prison without the possibility of parole under the POAA is grossly disproportionate, appellate courts consider the four factors set out in Fain: (1) the nature of the crime; (2) the legislative purpose behind the sentence; (3) the sentence the defendant would receive for the same crime in other jurisdictions; and (4) the sentence the defendant would receive for other similar crimes in Washington. Morin, 100 Wn. App. at 29 (citing Fain, 94 Wn.2d at 397).
These are merely factors to consider and no one factor is dispositive. See Morin, 100 Wn. App. at 31-34 (despite fact it was unlikely the crime would result in life without parole in other jurisdictions, sentence affirmed). The Nature of the Crime. Under the first Fain factor, courts consider if the crime was a violent crime, and if the victim was a person or property. Morin, 100 Wn. App. at 30. Courts also consider the actual facts of the case. Id. at 31. Here, Mr. Norris was convicted of first degree molestation of a child. RCW 9A.44.083. He argues that the circumstances surrounding his crime are such that he deserves relief from a life sentence under the POAA. He argues that the touch was `de minimis,' and was `a brief one-second touch over clothing' that did not involve violence. Appellant's Br. at 10. However, while Mr. Norris contends that the crime was not violent, the Legislature has classified the crime differently. In fact, the Legislature has classified first degree molestation as a `most serious,' `violent,' `sex offense.' See Former RCW 9.94A.030(25)(a), (36)(a), (41)(a) (1999). While he seeks to minimize his acts in committing the crime, Mr. Norris cannot escape the fact that he was convicted of first degree child molestation. As such, he committed a most serious, violent, sex offense against a child.
The acts underlying this conviction occurred on March 5, 2001. Former RCW 9.94A.030 was effective until July 1, 2001. The current classifications of first degree child molestation are found at RCW 9.94A.030(28), (38), (45).
The Legislative Purpose Behind the Sentence. Under the second Fain factor, the Legislature was concerned about the recidivism of sex offenders when it passed the `two strikes' amendment to the POAA, but did not intend to supplant the purposes of the POAA. Morin, 100 Wn. App. at 31. Thus, the purpose of the two strikes amendment is two-fold: to provide mandatory sentences for repeat offenders to deter such crimes and to protect society. Id. (citing State v. Thorne, 129 Wn.2d 736, 775, 921 P.2d 514 (1996)).
In this case, Mr. Norris had previously committed the same crime, first degree child molestation involving a young, female child. He also had violated the conditions of his parole by interacting with young children, without the required supervision. Now, he has molested another young girl, in a public place, with her stepfather close by, watching him and the children. Based upon this conduct, Mr. Norris's sentence is consistent with the purposes of the POAA. Comparison of Sentence to Other Jurisdictions. The third Fain factor requires the court to examine the sentence the defendant would receive for the same crime in other jurisdictions. Most states that have `two strikes' laws require sex offenses with some degree of penetration and infliction of serious bodily harm. Morin, 100 Wn. App. at 32-33. A smaller number of states would impose a sentence of life in prison without parole for a second offense after a similar prior offense. For example, Georgia, Montana, New Mexico, South Carolina, and Wisconsin all have two strikes laws for some types of sexual offenses. In any event, this factor is not dispositive. State v. Gimarelli, 105 Wn. App. 370, 381, 20 P.3d 430, review denied, 144 Wn.2d 1014 (2001). The Sentence Defendant would Receive for Other Similar Crimes in Washington. Mr. Norris argues that if the second-strike law did not exist, he would have received a significantly shorter sentence. However, this is not the proper inquiry. Rather, the court analyzes whether other similar offenses would result in the imposition of a similar sentence. Thorne, 129 Wn.2d at 775; State v. Rivers, 129 Wn.2d 697, 714, 921 P.2d 495 (1996). First degree child molestation is a class A felony and it is classified as a `most serious offense,' a `sex offense' and a `violent offense.' See
See Ga. Code Ann. sec. 17-10-7(b)(2); Mont. Code Ann. sec. 46-18-219; N.M. Stat. Ann. sec. 31-18-25(A), (B); S.C. Code Ann. sec. 17-25-45; Wis. Stat. sec. 939.62.
Former
RCW 9.94A.030(25)(a), (36)(a), (41)(a). Several other similar offenses, such as first or second degree rape and first or second degree rape of a child would similarly qualify an offender for life in prison if the offender had a prior first degree molestation conviction. Thus, the sentence Mr. Norris received is comparable to the sentence he would have received for committing similar crimes. This violent sex offense against a child is quite different from the property crime in Fain. In Fain, the defendant had a history of writing bad checks, and his third crime consisted of writing several bad checks, totaling $408. Based on this third crime, Mr. Fain was considered a habitual offender and sentenced to life in prison. The court held that because all three of Mr. Fain's convictions were wholly nonviolent crimes involving small amounts of property, life imprisonment was entirely disproportionate to the seriousness of his crimes. Fain, 94 Wn.2d at 402. In Gimarelli, on the other hand, the defendant repeatedly fondled an 11-year-old girl, after she pushed him away and asked for her mother. Mr. Gimarelli's previous crime was a rape by forcible compulsion in Oregon. Gimarelli, 105 Wn. App. at 373. The court found that his life sentence was not grossly disproportionate to his crime because he was `a convicted rapist who repeatedly and persistently attempted to molest an 11-year-old girl. The Legislature has a right to discourage such behavior and protect the public from such offenders.' Id. at 382.
In this case, Mr. Norris is a repeat child molester. He showed a lack of impulse control in molesting a five-year-old girl under the watchful eye of her father. Molesting a child is considered a violent sexual offense. Thus, Mr. Norris is not entitled to the same protection given the defendant in Fain. Based upon these factors, Mr. Norris's sentence is not grossly disproportionate to his crime. He is a convicted child molester, who repeatedly has improperly touched children. .
We affirm Mr. Norris's sentence.
The majority of the panel has determined 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.
SWEENEY and SCHULTHEIS, JJ., concur.