Opinion
No. 36136-1-II
Filed: October 21, 2008
ORDER AMENDING OPINION
The opinion in this case was filed on September 23, 2008. It was this court's intent that the filed opinion was to be unpublished, thus we order the following amendment. It is hereby
ORDERED that on page 1, the title of "Published Opinion" shall be deleted and the title of "Unpublished Opinion" shall be inserted in its place.
IT IS SO ORDERED.
PUBLISHED OPINION
Leon Lee Reyes appeals his convictions of homicide by abuse and second degree murder. He argues that the State presented insufficient evidence to prove the crimes, his counsel was ineffective for conceding that he caused his stepson's death, the trial court erred in failing to vacate his second degree murder conviction, and the trial court erred in imposing a 480-month exceptional sentence. We find no trial error, but we agree with Reyes that the trial court should have vacated his second degree murder conviction. Accordingly, we affirm Reyes's conviction and sentence but remand for the trial court to vacate the second degree murder conviction.
FACTS
A. Haydon's Death
On February 20, 2006, around 9:00 pm, Leon Reyes called 911 to report that his two-year-old stepson, Haydon Kostelecky, was convulsing, vomiting, and having difficulty breathing after falling from a bunk bed. When police officers arrived at the home, they found Reyes kneeling over Haydon in the living room. Reyes appeared panicked. He yelled to the officers that Haydon could not breathe and asked them to help. The officers provided first aid to Haydon until medical aid personnel arrived on the scene. Haydon's stomach was distended and hard to the touch. One officer asked the eldest child if he knew what had happened to Haydon, but the child said he did not see what happened. After clearing Haydon's airway, the medics transported him to the hospital.
At the hospital, a CT scan revealed a large amount of blood in Haydon's skull but no skull fracture. Dr. Alan Paschall, who treated Haydon, explained that a subdural hematoma occurs when trauma makes veins in the brain rupture and bleed, which causes blood to collect under the brain's lining. He further explained that a subdural hematoma without a skull fracture is likely due to forceful acceleration and deceleration, a shaking injury. Doctors operated to drain the blood and relieve pressure on the brain but by the following day, Haydon had no brain function. The doctors declared him brain dead and removed life support.
Dr. Paschall testified that the amount of blood in Haydon's skull was remarkable and that he had not seen such severe brain swelling in 20 years of practicing medicine. He opined that Haydon's injury was not accidental and that the injury was not consistent with a fall from a bunk bed.
Haydon had other injuries at the time of his death. Dr. Yolanda Duralde, director of the hospital's child abuse intervention department, photographed bruises on Haydon's arm, red linear marks that were consistent with injury from an electrical cord or belt on the backs of his legs, bruises on his legs, and a bruise on his forehead. An autopsy revealed additional bruising under Haydon's scalp. Some of the bruises were older, but some, including the bruise under his scalp, likely occurred at or near the time of the critical brain injury. Haydon also had a newly broken rib and hemorrhaging in both eyes. Finally, Haydon's spleen, small intestine, stomach, colon, liver, and pancreas showed signs of healing from significant injuries that occurred about a week before his death. The medical examiner, Dr. Roberto Ramoso, concluded that blunt head trauma caused Haydon's death. He testified that Haydon's injuries were consistent with both shaking and an impact to the head that occurred at about the same time.
Dr. Duralde testified that a broken rib can occur when a child is held around the rib cage during a shaking. Bilateral retinal hemorrhaging can also occur during a shaking, suggesting substantial force. Dr. Duralde stated that she had never seen bilateral retinal hemorrhaging in cases of accidental blunt force trauma and that she did not believe a fall from a bunk bed could have caused Haydon's injuries or that another child could have inflicted them. She also testified that the impact that caused the bruise under Haydon's scalp could not have caused the internal brain trauma. Dr. Duralde concluded that Haydon's injuries were not accidental and that his death was the result of shaking with probable impact.
B. Reyes's Statements to Police
Reyes was the only adult in the home when he called 911. While other personnel were treating Haydon at the home, Tacoma Police Officer Henry Betts talked to Reyes, who said that he was in the kitchen washing dishes when he heard crying and went to check on the children. The two older boys told him that Haydon had fallen. Haydon stood up and pointed at his head saying, "[H]ead, head, head" repeatedly. Report of Proceedings (RP) at 104. When Reyes picked him up, Haydon went limp and started having muscle spasms. Reyes shook him and splashed water on his face to awaken him. When that failed and Haydon started vomiting, Reyes called 911.
The other residents of the home were Laura Reyes, Reyes's wife; Reyes's two sons from a prior relationship, ages seven and four; Haydon, Laura's son from a prior relationship; and Reyes's and Laura's infant daughter. Laura was expecting a second child with Reyes. She was at work when the incident occurred.
Reyes also described Haydon's recent injuries. He told Officer Betts that, a few days before this incident, Haydon had fallen in the shower and gotten a big knot on his head but he had seen a doctor and the doctor said Haydon was fine. He also reported that Haydon had scratched his testicles when crawling into the shower and that he had recently broken his arm at day care. Reyes stated that he had been working hard to get Haydon potty trained but that it had been difficult.
Detectives interviewed Reyes at the police station later that night and Reyes gave substantially the same story. When the detectives told Reyes that Haydon's injuries were not consistent with his story, Reyes said that he thought the injuries were the result of roughhousing between the boys. He told the detectives that Haydon had complained of a stomachache and headache and had diarrhea the previous week; Hayden also had a bruise under his ribs. Reyes again stated that he had been working to potty train Haydon but that Haydon had had an accident that afternoon and Reyes "had to jump his butt." RP at 208. Reyes also told the detectives that he was under a lot of stress, that it was a huge responsibility for him to provide child care while his wife worked, and that he was concerned about the well being of their unborn child.
C. Haydon's Prior Injuries
Testimony at trial revealed that Haydon had suffered additional injuries while in Reyes's care. In April 2005, Haydon was treated for a sprained ankle described as a "twist injury." RP at 238-39. Reyes told several people that the injury had occurred when he bent down while holding Haydon and Haydon's leg got twisted between Reyes's legs. Laura Reyes, Haydon's mother, testified that she was with Reyes when the ankle injury occurred but she had earlier told police that she was inside a store and did not see the injury.
In June 2005, doctors treated Haydon for a broken elbow. Reyes and Laura told the doctors that they believed the injury occurred at Haydon's day care. The day care facility had no record of Haydon injuring his arm there and reported the injury to Child Protective Services (CPS). CPS investigated, but closed the case without further action. Linda Merritt, the day care's director, testified that Reyes told her he might have caused the break when he was roughhousing with Haydon. Sarah Birnel, Reyes's former sister-in-law and neighbor, testified that Reyes told her he might have caused the break as he picked Haydon up when Haydon was choking.
In December 2005, Laura took Haydon to the doctor because he had been vomiting one to four times a day for a week. Laura told the doctor that Haydon had fallen into the toilet and hit his head. The doctor noted redness and swelling on the right side of Haydon's head. On February 17, 2006, three days before Haydon's critical injury, Laura took him to the doctor for watery eyes. She reported to the doctor that Haydon had been vomiting and having diarrhea for a few days.
Haydon also suffered undocumented injuries while in Reyes's presence. In January 2006, Patty Richards, the girlfriend of Haydon's grandfather, observed bruises on Haydon's back and the back of his legs. When Richards asked Laura about the bruises, Laura said that Reyes had told her that he left Haydon sitting on the toilet and forgot about him. When he returned to the bathroom, he startled Haydon, who had fallen asleep, and Haydon fell into the toilet.
Also in January 2006, Richards and Boyd Kostelecky, Haydon's grandfather, observed that Haydon's entire scrotum was black and blue. Richards again asked Laura about the injury and she said that Reyes had told her Haydon fell on the shower door tracks while climbing out of the bathtub. Laura testified that Reyes called her at work to report the injury. Dr. Duralde testified that a direct blow to the scrotum would cause this kind of injury but that crawling over shower door tracks would not.
Laura testified that, about one to two weeks before Haydon's fatal injury, she noticed a mark on Haydon's stomach that looked like a shoe tread pattern. When Laura asked Reyes about the mark, Reyes appeared shocked and said he had no idea how it got there. Later, while Reyes was at work, Laura looked for a matching shoe pattern on Reyes's shoes. She did not find any but did not check the shoes that Reyes was wearing that day. Laura made a drawing of the pattern she saw on Haydon's stomach. It was similar to the tread of the shoes Reyes was wearing at the time of his arrest. She testified that Haydon complained that his head and stomach hurt and he vomited several times in the two weeks before his death. Dr. Duralde testified that a distended and hard stomach could be a sign of internal abdominal injury, which could cause vomiting and diarrhea.
Laura also testified that, about a week before Haydon's critical injury, Haydon had a bruise on his forehead and that Reyes told her Haydon fell while in the bathtub. Richards testified that she noticed more marks and bruises on Haydon after Laura married Reyes. Kostelecky testified that Haydon appeared scared of Reyes at times. Laura testified that Haydon sometimes looked at Reyes as if he was scared of him and that he sometimes got quiet when Reyes entered the room.
On the night Haydon went to the hospital, Laura told detectives Haydon had regressed in his potty training and that Reyes did not like it when Haydon had accidents. He particularly did not like it when Haydon had bowel movement accidents. Haydon had diarrhea the week before his death, which led to a lot of accidents. Laura explained that she did not believe Haydon should be punished for having accidents, but that Reyes disagreed.
D. Haydon's Final Days
Richards testified that on February 19, 2006, Haydon was cranky and wanted only his mother to hold him, which was unusual. Haydon spent that night at Richards's house. He did not eat or drink much that evening. When giving him his bath, Richards noticed that Haydon's stomach appeared larger and harder than normal. Haydon again ate and drank little the following morning and was quieter than usual. Richards took him home around 1:00 pm on February 20.
Laura then got the children ready to go to the home of Mary Jane Gutierrez, Reyes's aunt, who kept Haydon when Laura's and Reyes's work schedules overlapped. Laura testified that Haydon was still quiet and clingy. Laura left about 15 minutes after Richards dropped off Haydon. Gutierrez also testified that Haydon was quiet and that Laura told her he had been vomiting that day. Gutierrez took the boys to Reyes when he got off work, at about 3:00 pm.
Reyes's friend, James Baldwin, testified that he went to Reyes's home on February 20 around 4:00 pm and stayed for about an hour-and-a-half. He testified that Haydon appeared fine, was walking around, and did not appear to be in distress. Reyes's 911 call occurred at 9:00 pm.
E. Procedure
The State charged Reyes with homicide by abuse and second degree murder. A jury convicted Reyes of both counts and found by special verdict that Reyes knew or should have known that Haydon was particularly vulnerable or incapable of resistance due to extreme youth. The trial court imposed an exceptional sentence of 480 months on the homicide by abuse conviction.
ANALYSIS I. Sufficiency of the Evidence
A. Standard of Review
Evidence is sufficient to support a conviction if, after reviewing the evidence in the light most favorable to the State, we are satisfied that any rational trier of fact could have found guilt beyond a reasonable doubt. State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992). In considering a defendant's claim of insufficient evidence we accept the State's evidence and draw all reasonable inferences from the evidence in favor of the State. Salinas, 119 Wn.2d at 201. The State bears the burden of proving all elements of a crime beyond a reasonable doubt. State v. Teal, 152 Wn.2d 333, 337, 96 P.3d 974 (2004).
B. Homicide by Abuse
Reyes argues that the State failed to prove the elements of homicide by abuse. The homicide by abuse statute provides:
A person is guilty of homicide by abuse if, under circumstances manifesting an extreme indifference to human life, the person causes the death of a child or person under sixteen years of age, . . . and the person has previously engaged in a pattern or practice of assault or torture of said child, [or] person under sixteen years of age. . . .
RCW 9A.32.055(1). Reyes maintains that the State did not prove that he (1) caused Haydon's death, (2) manifested an extreme indifference to human life, or (3) engaged in a pattern or practice of abuse of Haydon.
1. Cause of Haydon's Death
In arguing the causation issue, Reyes points out that none of the doctors testified as to the time of the brain injury, only that it was recent. Reyes contends that Dr. Duralde testified that a child may suffer headaches, stomach pain, and vomiting for several days after a shaking incident, and that the evidence of older bleeding inside Haydon's brain shows that the injury could have occurred prior to the time Haydon was in Reyes's exclusive care. Accordingly, he argues, the State did not establish that the shaking incident occurred on the evening of February 20.
Reyes is correct that no doctor testified that the brain injury occurred on the evening of February 20. But Dr. Ramoso testified that he saw no evidence of healing in the subdural hematoma and that it was "consistent with a very recent subdural hematoma." RP at 305-06. He also testified that some of the blood inside Haydon's skull had begun to clot but that clotting can begin fairly quickly, within hours after an injury.
Dr. Duralde's testimony that a shaking could cause merely headaches, stomach pain, and vomiting was in response to a question about symptoms from "shaking but not to a severe degree." RP at 245. But the large amount of internal bleeding and the bilateral retinal hemorrhaging was evidence that Haydon's injury resulted from a shaking with a high level of force. And no medical expert testified that, absent further force, relatively mild injuries from a prior shaking could suddenly become acute and cause death several days after they were inflicted.
Laura, Richards, and Gutierrez testified that Haydon was quiet and clingy in the early afternoon of February 20, but they did not testify to signs of distress. Baldwin testified that Haydon was fine and did not appear distressed in the late afternoon of that day. None of them observed Haydon convulsing, vomiting, or having difficulty breathing, as he was by 9:00 that night. Reyes was the only adult with Haydon from the time Baldwin left until Reyes called 911. Haydon's stepbrother told the police that he did not see what happened to Haydon. Neither Dr. Paschall nor Dr. Duralde believed that the brain injury was consistent with Reyes's explanation that Haydon fell from a bunk bed. Also, Dr. Duralde did not believe that another child could have inflicted Haydon's injuries. Drawing all the inferences in favor of the State, the jury could have concluded beyond a reasonable doubt that Haydon's death was the result of a shaking that took place during the hours before the 911 call and that Reyes inflicted the fatal injury.
2. Extreme Indifference to Human Life
Reyes next argues that the State's evidence did not establish that he manifested an extreme indifference to human life. He maintains instead that his actions do not show he was "even remotely indifferent to [Haydon's] life, let alone extremely indifferent." Br. of Appellant at 27-28.
The homicide by abuse statute does not define the phrase "extreme indifference." But we recently considered the meaning of the phrase in State v. Madarash, 116 Wn. App. 500, 66 P.3d 682 (2003). We looked to the words' dictionary definitions:
According to Webster's, the word "extreme" means "existing in the highest or the greatest possible degree[;] very great[;] very intense." The word "indifference" means "the quality or state of being indifferent." "Indifferent" means "looked upon as not mattering one way or another," or "regarded as being of no significant importance or value."
Madarash, 116 Wn. App. at 512 (quoting Webster's Third New Int'l Dictionary 807, 1151 (1969)). We concluded that to prove a defendant acted with extreme indifference, the State does not have to show that the defendant knew or understood the physiological results of a particular form of assault. Madarash, 116 Wn. App. at 512. Rather, to have acted with extreme indifference to the victim's life, the defendant "simply had to not care whether [the victim] lived or died." Madarash, 116 Wn. App. at 512. Accordingly, the State did not have to show that Reyes knew that shaking Haydon could result in a brain injury and ultimately cause Haydon's death. It had to show that Reyes did not care whether Haydon lived or died.
In Madarash, we found extreme indifference to human life where the defendant forced the victim to drink 48 ounces of soda within a matter of minutes, forced her into a cold bath, threw cups of cold water into her mouth and onto her face, held her down and forced her under water when she tried to climb out of the tub, and did not seek medical assistance until the victim collapsed. Madarash, 116 Wn. App. at 504, 512-13. After the defendant learned that the victim had died, the defendant chuckled as she told a friend that the victim had thrown up in her hair. Madarash, 116 Wn. App. at 505.
In State v. Edwards, 92 Wn. App. 156, 961 P.2d 969 (1998), the court found extreme indifference where the defendant admitted giving the victim his prescription medicine; picking the victim up by her hair; causing deep bruising on the victim's stomach and bottom; blowing marijuana smoke in the victim's face; and, finally, shoving her to the floor, causing the victim's fatal head injuries. Edwards, 92 Wn. App. at 159-60, 165. The defendant did not seek immediate medical assistance for the victim. Edwards, 92 Wn. App. at 159. The medical testimony showed that it would have required significantly more force than the defendant admitted to cause the victim's fatal injuries. Edwards, 92 Wn. App. at 160.
Reyes maintains that the actions he took after Haydon's injury — calling 911, attempting to clear Haydon's airway and give CPR, asking the police to help him as soon as they arrived, and giving information to the police to help in Haydon's care — show that he cared whether Haydon died. He asserts that, unlike the defendants in Madarash and Edwards, there is no evidence that he delayed calling for help when Haydon's condition became critical or that he engaged in any cruel behavior toward Haydon after the injury.
But Reyes's actions after Haydon's injury are not the only relevant facts. The evidence showed that Haydon had numerous injuries of varying degrees of severity during the months leading up to his death. He did not receive medical care for several of these injuries, including the internal abdominal injuries. The jury could have concluded that Reyes caused the abdominal injuries by stomping on Haydon's stomach and that Haydon was not treated for these injuries because Reyes covered them up. At the time of his death, Haydon had both old and new bruising on his head, arms, and legs. Some of the bruising was consistent with being hit by an electrical cord or belt. Haydon's subdural hematoma contained an unusually large amount of blood, and his brain swelling was the worst Dr. Paschall had seen in 20 years. He had hemorrhages in both eyes and a fractured rib, signs that he was shaken with great force. This was sufficient evidence for the jury to conclude that, in spite of Reyes's attempts to seek help for Haydon after the extent of his injuries became apparent, Reyes did not care whether Haydon lived or died at the time he inflicted those injuries.
3. Pattern or Practice of Abuse
Reyes asserts that the State did not prove that he engaged in a pattern of abuse. He maintains that the State presented no evidence that any of Haydon's prior injuries were intentional, and he points out that no one doubted his explanations for the injuries or witnessed him abusing or assaulting Haydon.
RCW 9A.32.055(1) requires the State to prove that Reyes engaged in a "pattern or practice of assault or torture" of Haydon. The Madarash court used the common law and dictionary definition of these terms. At common law, an "assault" is either (1) an attempt, with unlawful force, to inflict bodily injury on another; (2) an unlawful touching with criminal intent; or (3) intentionally putting another in reasonable apprehension of harm, whether or not the actor intends to inflict or is capable of inflicting that harm. Madarash, 116 Wn. App. at 513-14 (quoting State v. Russell, 69 Wn. App. 237, 246-47, 848 P.2d 743 (1993)). The dictionary defines "tortures" as "`to cause intense suffering to[;] inflict anguish on[;] subject to severe pain.'" Madarash, 116 Wn. App. at 514 (quoting Webster's Third, at 2414). A "pattern" is "`a regular, mainly unvarying way of acting or doing,'" and a "practice" is "`a frequent or usual action; habit; usage.'" Madarash, 116 Wn. App. at 514 (quoting Russell, 69 Wn. App. at 247) (quoting Webster's New World Dictionary 1042, 1117 (1976)). Thus, to be convicted of homicide by abuse, Reyes had to "regularly or habitually assault or torture" Haydon. Madarash, 116 Wn. App. at 514.
Although no one directly witnessed Reyes assaulting Haydon, the circumstantial evidence in this case supports a conclusion that Reyes regularly assaulted Haydon. Haydon sustained numerous injuries while in Reyes's care, including an ankle sprain and bruises on his head and legs. Reyes told the doctors that Haydon broke his elbow at day care, but he told two other people that he may have caused the injury, giving two different stories. Laura found a shoe print on Haydon's stomach when she came home from work, after Haydon had spent the evening in Reyes's exclusive care. While Reyes provided explanations for many of these injuries, often involving Haydon falling while in the bathroom, the jury was not obligated to find the explanations credible.
Furthermore, both Laura and her father testified that Haydon seemed afraid of Reyes at times. Richards testified that she noticed more bruises on Haydon after Laura married Reyes. Taken in the light most favorable to the State, the evidence was sufficient for the jury to conclude that Reyes engaged in a pattern or practice of abuse of Haydon. Accordingly, sufficient evidence supported Reyes's conviction of homicide by abuse.
C. Second Degree Murder
Reyes also argues that the State failed to prove that he caused Haydon's death in the course of an assault, as required to convict him of second degree felony murder. But as we discussed above, the State presented sufficient evidence for the jury to conclude that Reyes inflicted Haydon's fatal brain injury. Sufficient evidence supported Reyes's conviction of second degree felony murder.
RCW 9A.32.050(1)(b) provides that a person is guilty of second degree murder when "[h]e or she commits or attempts to commit any felony, including assault, . . . and, in the course of and in furtherance of such crime . . ., he or she . . . causes the death of a person."
II. Ineffective Assistance of Counsel
Reyes argues that his counsel was ineffective for conceding in his closing argument that Reyes caused Haydon's death by shaking him.
A defendant claiming ineffective assistance must show both deficient representation and prejudice resulting from that representation. State v. Thomas, 109 Wn.2d 222, 225-26, 743 P.2d 816 (1987) (quoting Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984)). Counsel's representation is deficient if it falls below an objective standard of reasonableness. State v. Stenson, 132 Wn.2d 668, 705, 940 P.3d 1239 (1997). The defendant is prejudiced if, but for the deficient performance, there is a reasonable probability the trial outcome would have differed. Stenson, 132 Wn.2d at 705-06. We will not find ineffective assistance based on counsel's legitimate trial strategy or tactics. State v. McFarland, 127 Wn.2d 322, 336, 899 P.2d 1251 (1995).
In closing, Reyes's counsel stated:
There is no question in my mind, Haydon died a violent death. There shouldn't be any question in your mind that it was a violent death. It was from shaking. It was for probably around ten seconds. It doesn't take very long. It was out of frustration, probably. Probably from potty-training, the lack thereof. But even at that time — but even at that, think, if the discipline went too far, if this effort to potty-train this child went too far, that doesn't mean that Mr. Reyes acted with extreme indifference, or that it was part of a practice or pattern of abuse. It was just frustration, you know.
You know, when I think of context, I think about this context as well. One last thing is how tough it is to be parents. Maybe that's why we take such pride in our children. We see all of this industry out there to take care of the products of bad parenting, so what comes from that is this: It's tough to be a good parent.
And perhaps, you know, we're not all equipped, but that doesn't mean that you acted with extreme indifference. If Mr. Reyes didn't intend to kill this child, you have Felony Murder. Felony Murder establishes Assault in the Second Degree, and as a result of that, the child dies. To commit Assault in the Second Degree — you have that instruction — one has to intentionally assault, causing substantial bodily harm, and someone dies as a result.
Did he intend to assault the child? That's a question. But I suggest to you that this is no more than Manslaughter. The degree of Manslaughter is for you to decide, because he did not act with a pattern of abuse or with extreme indifference to this child.
Going away from the collective guilt and away from the, perhaps, the over reaching argument, this argument that says we have to get even for Haydon, that's not what we do here in this court, and I've asked you to find him guilty only of Manslaughter in the First Degree.
RP at 964-66.
Reyes asserts that because there was insufficient evidence that he caused Haydon's death, counsel's statement permitted the jury to decide an unproved fact in favor of the State, thereby relieving the State of its burden to prove all elements of the crime beyond a reasonable doubt.
But as we discussed above, the State did present sufficient evidence that Reyes caused Haydon's death.
Where the evidence of guilt on a particular count is overwhelming and there is no reason to suppose that any juror doubts it, conceding guilt on that count in closing can be a sound trial tactic. State v. Silva, 106 Wn. App. 586, 596, 24 P.3d 477 (2001) (quoting Underwood v. Clark, 939 F.2d 473, 474 (7th Cir. 1991)). This approach may help win the jury's confidence, preserve the defendant's credibility, and lead the jury toward leniency by conceding that the defendant is guilty of a lesser charge. See Silva, 106 Wn. App. at 596 n. 37 (quoting Underwood, 939 F.2d at 474). If the concession is a matter of trial strategy or tactics, it is not ineffective representation. Silva, 106 Wn. App. at 599.
Here, the evidence was overwhelming that Reyes caused Haydon's death. The last adults, other than Reyes, to see Haydon before the 911 call testified that Haydon appeared fine, quiet, and did not appear to be in distress as late as 5:30 pm on February 20. Contrary to Reyes's statement that Haydon injured himself playing with his brothers, Haydon's stepbrother told the police that he did not see what happened to Haydon. Haydon suffered a critical brain injury causing vomiting, convulsions, and impaired breathing by 9:00 pm. Each medical expert testified that Haydon's brain injury was consistent with shaking, and Dr. Duralde testified that she did not believe that a fall from a bunk bed or injuries inflicted by another child could have caused Haydon's injuries. Reyes offered no other credible explanation for Haydon's fatal injuries. Given these circumstances, Reyes's counsel made a tactical decision to concede that Reyes caused Haydon's death in an attempt to secure a conviction of the lesser included offense of manslaughter.
In any event, Reyes has not shown a reasonable probability that, had his attorney not conceded that Reyes caused Haydon's death, his trial outcome would have differed. As we noted above, the evidence that Reyes caused Haydon's death was overwhelming. The jury likely would have reached the same decision even without his counsel's concession. Reyes has not demonstrated that counsel was ineffective.
III. Double Jeopardy
Reyes next assigns error to the trial court's failure to vacate his second degree murder conviction as State v. Womac, 160 Wn.2d 643, 160 P.3d 40 (2007) requires. The State concedes the error.
In Womac, which was decided after the trial court sentenced Reyes, a jury convicted the defendant of homicide by abuse, second degree murder, and first degree assault; the trial court imposed an exceptional sentence on the homicide by abuse conviction and left the remaining convictions on his record. Womac, 160 Wn.2d at 647. Our Supreme Court held that, because the three convictions were for the same offense for double jeopardy purposes, the trial court erred in failing to vacate the second degree murder and first degree assault convictions. Womac, 160 Wn.2d at 647.
Reyes's judgment and sentence provides: "The court does not impose [a] sentence for COUNT II (Murder in the Second Degree) for double jeopardy reasons. COUNT II is a valid conviction but the court finds that imposing a separate punishment would violate constitutional double jeopardy [provisions]. SEE APPENDIX A." Clerk's Papers (CP) at 242. The appendix states that the second degree murder conviction "is a valid conviction." CP at 317-18. The State agrees that under Womac, this was an error. We remand for the trial court to vacate the second degree murder conviction.
V. Exceptional Sentence
Finally, Reyes argues that the trial court erred in imposing an exceptional sentence because the evidence did not establish beyond a reasonable doubt that Haydon was particularly vulnerable or incapable of resistance. He also argues that the sentence is excessive in light of the facts of this case and in comparison to other homicide by abuse cases. Reyes's standard range sentence was 261 to 347 months. The trial court imposed an exceptional sentence of 480 months, 133 months longer than the high end of the standard range.
A trial court may impose a sentence outside the standard sentencing range if it finds that there are substantial and compelling reasons justifying an exceptional sentence. RCW 9.94A.535. The State must prove the facts supporting a sentence enhancement to a jury beyond a reasonable doubt. RCW 9.94A.537(3). We review an exceptional sentence under RCW 9.94A.585(4) and decide whether (1) substantial evidence supports the trial court's reasons for imposing the sentence, (2) the reasons, as a matter of law, justify a departure from the standard range, and (3) the trial court abused its discretion in sentencing the defendant too excessively or too leniently. State v. Ferguson, 142 Wn.2d 631, 646, 15 P.3d 1271 (2001).
A. Evidence of Particular Vulnerability
Reyes argues that the evidence does not support the jury's and trial court's findings that Haydon was particularly vulnerable or incapable of resistance because there was no evidence that Haydon was more vulnerable than other victims of homicide by abuse. He points out that Haydon was over two years old, was not fully dependent on Reyes for his care, and was verbal.
Reyes points to cases where courts found particular vulnerability of homicide by abuse victims who were under the age of two. See Womac, 160 Wn.2d at 647-48 (four-month-old victim was particularly vulnerable); State v. Berube, 150 Wn.2d 498, 513, 79 P.3d 1144 (2003) (twenty-three-month-old victim was particularly vulnerable). But a youth up to age fifteen can be a victim of homicide by abuse. RCW 9A.32.055(1). Haydon was two years and five months old at the time of his death, placing him among the youngest possible victims of the crime.
The defendant's exceptional sentence in Womac was reversed because the State did not prove the aggravating circumstances to a jury beyond a reasonable doubt. Womac, 160 Wn.2d at 648.
A comparison to findings of particular vulnerability in other crimes that make the victim's age an element is instructive. Courts have found extreme vulnerability in children as old as age five. See, e.g., State v. Fisher, 108 Wn.2d 419, 423, 425, 739 P.2d 683 (1987) (five-and-a-half-year-old victim was particularly vulnerable to crime of indecent liberties with a child under fourteen). On the other hand, courts have found that grade school age children are not particularly vulnerable because they have a level of reason that sets them apart from younger children. See, e.g., State v. Woody, 48 Wn. App. 772, 777, 742 P.2d 133 (1987) (seven-year-old was not particularly vulnerable to crime of indecent liberties with a child under fourteen).
Reyes points out that several other adults cared for Haydon, including Haydon's mother, his grandfather, his grandfather's girlfriend, and his aunt. But Reyes was Haydon's exclusive caregiver in the evenings while Laura was at work, and Haydon was fully dependent on Reyes for care during those hours. Reyes also asserts that Haydon could express himself and talk about what he was feeling and was therefore able to ask for help from the other adults around him. But a two-year-old child does not have the reasoning ability or expressive capacity of a grade school youth. That Haydon's internal abdominal injuries went undetected is evidence of this fact.
We conclude that the evidence was sufficient for the jury to find beyond a reasonable doubt that Haydon was particularly vulnerable or incapable of resistance, and substantial evidence supports the trial court's findings that there were substantial and compelling reasons that justified a departure from the standard range.
B. Excessive Sentence
Reyes argues that his sentence was clearly excessive because it nearly doubles the low end of his standard range sentence and defendants in other homicide by abuse cases did not receive exceptional sentences. As noted above, we review the length of an exceptional sentence for an abuse of discretion. State v. Branch, 129 Wn.2d 635, 649, 919 P.2d 1228 (1996). A sentence is clearly excessive if it is based on untenable grounds or untenable reasons, or is an action no reasonable judge would have taken. Branch, 129 Wn.2d at 649-50.
Reyes compares his sentence to the sentences in Madarash and Edwards. The Madarash opinion does not mention the defendant's sentence. In Edwards, the trial court imposed a standard range sentence of 26 years, 8 months. Edwards, 92 Wn. App. at 160-61. But neither opinion states that a court or a jury found any aggravating factors; thus, they are not analogous. On the other hand, in Berube, the court upheld an exceptional sentence of 640 months based on the aggravators of victim vulnerability, abuse of trust, and deliberate cruelty. Berube, 150 Wn.2d at 501, 513-14.
The trial court here considered the facts of the case and the aggravating factor that the jury found, and it found substantial and compelling reasons to impose an exceptional sentence. The trial court did not abuse its discretion in imposing the 480-month sentence.
We affirm Reyes's conviction and sentence but remand for the trial court to vacate the second degree murder conviction.
A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.06.040, it is so ordered.
I concur in the majority's opinion. I write separately only to emphasize that in remanding for the trial court to vacate the second degree murder conviction, we do not thereby preclude the future possibility of reinstating this conviction if, for some reason unforeseeable at this time, the homicide by abuse conviction is vacated. Although there is sufficient evidence to support the second degree murder conviction, we must vacate it as a matter of law on double jeopardy grounds in light of the co-existing homicide by abuse conviction for the same crime.
See, e.g., In re Personal Restraint of Andress, 147 Wn.2d 602, 56 P.3d 981 (2002), holding that felony murder could not be predicated on an underlying felony assault and, therefore, vacating Andress's felony murder conviction.