Opinion
No. 27279-2-II c/w 23406-8-II.
Filed: December 13, 2002 UNPUBLISHED OPINION
Appeal from Superior Court of Clark County Docket No: 96-1-00957-1 Judgment or order under review Date filed: 04/20/2001
Counsel for Appellant(s), R. A. Lewis, Attorney at Law, 430 N.E. Everett St, Camas, WA 98607-2115.
Counsel for Respondent(s), Richard Alan Melnick, Attorney at Law, 1200 Franklin, P.O. Box 5000, Vancouver, WA 98666-5000.
Dennis Keith Smith appeals an exceptional sentence of 840 months. We affirm. This case was appealed before, and the facts appear in our prior opinion. They are as follows:
State v. Smith, 100 Wn. App. 1064, 2000 WL 688180, review denied, 142 Wn.2d 1012 (2000).
On November 11, 1995, Carolyn Killaby went to the bar in Omar's Restaurant and Steak House. She sat alone, appeared intoxicated, and danced with two or three men at the bar. Dennis Smith, the defendant, watched Killaby for a couple of hours. Smith, a regular at the bar, pointed out Killaby to the bouncer and talked about her. Later in the evening, Killaby was visibly intoxicated, had her head down, and was unable to walk without assistance. Then, sometime between 10:00 p.m. and midnight, Smith approached Killaby from behind, spoke to her briefly, put his arm around her and assisted her out of the bar to the parking lot. At that time, Killaby was too drunk to stand up or walk on her own, and she left her purse in the bar. When the bouncer took her purse outside and gave it to Smith, she still needed help to walk and appeared drunk and limp. Killaby has not been seen since that night. Nationwide efforts to locate her have been unsuccessful.
At 11:52 p.m. and 11:57 p.m. on November 11, 1995, two separate callers reported hearing a woman's screams for help coming from an open field near a housing development at the Five Corners in Orchards, which is just north of Omar's. The callers described the screams as a very loud, distinct, woman's voice screaming for help, and they said that the woman sounded panicked and terrified. Police responded but were unable to find anything.
At approximately 1:30 a.m. that same night, Smith was seen alone in the 7-11 store at the Five Corners in Orchards. He had his hand wrapped in a bloody rag or shirt and had what appeared to be blood smeared on the right side of his white dress shirt. Smith told the clerks at the 7-11 store that he had been in a fight at a bar.
The next day Smith went to a Sunday dinner at Omar's hosted for regulars and certain employees. He appeared nervous, agitated, and uneasy. He told the bar's bouncer, `I told you that woman was going to be trouble.' He also told an acquaintance, Boyd Kilgore, about having sex with Killaby. Smith also told Kilgore, the bouncer, and the bartender that a stranger had approached them while they sat in Omar's parking lot, called Killaby a bitch and dragged her from Smith's truck. Smith stated that he tried to intercede but that the stranger struck him with a stick. Smith said he punched the stranger, then jumped in his truck and drove away. Smith had not reported this incident to the police. While Smith was at Omar's for the Sunday dinner, Kilgore looked in Smith's truck out of curiosity and described it as undamaged.
Omar's employees learned that Killaby was missing on Monday, November 13, 1995, when her car was found parked in front of the bar. They promptly identified Smith, one of their regulars, as the last person seen with Killaby on Saturday night. One of the employees contacted Smith and told him that the woman he had left Omar's with was missing and that he needed to call the police. Shortly after this employee spoke with Smith, the inside of Smith's truck was damaged as a result of a fire, which Smith attributed to a dropped cigarette.
On Wednesday, November 15, the police located Smith at his work and briefly inspected his truck. They observed a large burn hole in the bench seat. The interior carpets and upholstery were in place and appeared clean. Smith agreed that his truck could be examined later by crime technicians to confirm that the woman who had been in his truck was Killaby.
After this contact with the police, Smith cleaned and drastically altered the inside of his truck that same day. Smith went to his friend Shawn Varela's house, and she noticed that the truck's interior carpet had been ripped out. Smith told Varela that he had used Lysol and Pine-Sol inside the truck and asked whether she thought that would ruin DNA. Later that day, Tammy Ross, another friend, saw Smith's truck when he drove into a gas station. She stated that all of the interior truck carpet was gone. Smith asked Ross if he could take the truck to her parents' home and wash it because `(h)e didn't want the police to know he'd been off-road with the truck.'.
Then, Smith turned in his truck to the police. Smith spoke with Varela and her friend Johnna Glenn, a nursing student, about his concern that the police were interested in him and that Killaby's blood or DNA could be discovered in his truck.
Sheriff's deputies took possession of the truck on November 16, 1995. Detective Jane Scott observed that the carpet and upholstery were missing, that there was fire damage to the remaining foam on the bench seat, and that the truck had been cleaned. After the Clark County Sheriff's Office examined the fire damage inside the truck, Detective Scott contacted Dr. Etling, a chemist specializing in arson investigations. Dr. Etling conducted field tests on Smith's truck and concluded that a cigarette could not have caused the fire damage noted in Smith's truck.
During the police investigation, Detective Scott used phenolphthalein and found that blood was presumptively present on the steering wheel and door handle of Smith's truck and on the watch that Smith had been wearing the night Killaby disappeared. These presumptively blood-stained items were sent to Forensic Science Associates in Richmond, California, along with control and comparison DNA samples taken from Smith, Killaby, her daughter, and her mother. In a report on June 19, 1996, Dr. Blake from the Forensic Science Associates stated that the stains recovered from the steering wheel of Smith's truck and watch were consistent with the reconstructed nuclear DNA profile of Killaby. Dr. Blake later stated that Killaby's nuclear DNA was uncommon and that less than one in 100,000 people would match her DNA type. He recommended that the materials be submitted to Dr. Mark Stoneking for mitochondrial DNA (mtDNA) analysis at Stoneking's laboratory at Pennsylvania State University.
On July 12, 1996, after Blake's report was received, an Information was filed and an arrest warrant issued for Smith. On February 4, 1997, Smith was apprehended in New Smyrna Beach, Florida after a violent struggle that ended when an officer shot Smith.
Smith, 2000 WL 688180, at *1-3.
Based on these facts, the jury convicted Smith of one count of aggravated first-degree murder and one count of first-degree felony murder.
The trial court sentenced Smith to life in prison without the possibility of parole. In our prior opinion, we held that Smith had properly been convicted of premeditated first-degree murder, but not of aggravated murder or felony murder. Accordingly, we remanded for resentencing.
The resentencing hearing was held on April 20, 2001. The court had already heard the trial testimony of witnesses such as Deborah Mitchell, Lonnie Spiva, and Catherine Ferguson. Mitchell, the bartender at Omar's, had "served [Killaby] four scotch on the rocks with beer backs[.]" Spiva, the bouncer at Omar's, had observed that when Killaby left with Smith, she was "somewhat limp" and "drunk to where she needed help to walk." Ferguson, a patron at Omar's, had observed that Killaby "had her head hung over" and was "too drunk to be able to walk on her own, to stand up and walk." In the resentencing hearing itself, Killaby's sister testified that Killaby was "five foot six, maybe 110 pounds[;]" Smith's jail booking form showed he was six foot two and 210 pounds; and a community corrections officer informed the court about Smith's prison and parole history. The State requested an exceptional sentence of 1164 months based on (1) "the relatively rapid recidivism of the defendant[;]" (2) Killaby's particular vulnerability; (3) the effect of her death on her family; and (4) Smith's concealment of her body. Smith requested a standard range sentence of 339 months.
Report of Proceedings (RP) (Smith I) at 1087.
RP (Smith I) at 1071.
RP (Smith I) at 1168.
RP (Smith I) at 1171.
RP (Smith II) at 19.
RP (Smith II) at 21.
RP (Smith II) at 22.
RP (Smith II) at 23.
RP (Smith II) at 23.
The trial court found that Killaby had been particularly vulnerable on the night of her death. She was only five foot six and 110 pounds, while Smith was six foot two and 210 pounds. More importantly, she had been too intoxicated "to stand up or walk without assistance" when Smith had taken her from the bar.
Clerk's Papers (CP) at 17.
The trial court also found that Smith had reoffended with unusual rapidity and severity. While on parole in 1982, he had killed his sister to keep her "from accusing him of conduct which would cause his parole to be revoked." He had been convicted of murder and imprisoned, but then again paroled on June 23, 1993. From December 1994 to March 1995, he had been incarcerated for failing a drug test, and he killed Killaby in November 1995. In the view of the trial court, this "recidivist behavior, which includes similar but separate murders of two female victims during less than 36 total months of parole placement, together with increased planning and sophistication of concealment to avoid parole revocation, demonstrates a particular culpability, a disrespect for the criminal justice system, and a flagrant disdain for law which is greater than that ordinarily expected in such cases." The trial court found that Smith's standard range was 291-388 months. It also found that an exceptional sentence was justified due to Killaby's particular vulnerability and/or Smith's rapid recidivism. The court imposed an exceptional sentence of 840 months, a sentence from which Smith now appeals.
CP at 18.
CP at 19.
CP at 19.
The question for us is whether the trial court erred by imposing an exceptional sentence. A trial court may do that when "there are substantial and compelling reasons justifying an exceptional sentence." A reviewing court must affirm unless it finds:
(a) Either that the reasons supplied by the sentencing court are not supported by the record which was before the judge or that those reasons do not justify a sentence outside the standard range for that offense; or (b) that the sentence imposed was clearly excessive . . . .
RCW 9.94A.585(4); see also State v. Solberg, 122 Wn.2d 688, 705, 861 P.2d 460 (1993); State v. Flores-Moreno, 72 Wn. App. 733, 742, 866 P.2d 648, review denied, 124 Wn.2d 1009 (1994).
When some of the trial court's justifications for imposing an exceptional sentence are improper, a reviewing court can nonetheless affirm the sentence if the principal justifications on which the trial court relied are proper and the reviewing court is confident the trial court, on remand, would impose the same sentence absent the improper justifications. Smith argues that the evidence is insufficient to support the trial court's finding that Killaby was particularly vulnerable. Our view, however, is to the contrary. The evidence showed that Killaby was five foot six and 110 pounds while Smith was six foot two and 210 pounds. The evidence shows that Killaby was grossly and visibly intoxicated; that Smith approached her (i.e., "picked her up") while she was in that condition; and that she left the bar with him while in that condition. Based on these facts, the trial court was permitted to infer that she was significantly impaired, though not to the point of mental incapacity or physical helplessness; that Smith deliberately took advantage of her condition; and that her "particular vulnerability" played a significant role in her murder.
State v. Farmer, 116 Wn.2d 414, 432, 805 P.2d 200 (1991) (citing In re Personal Restraint of George, 52 Wn. App. 135, 148-49, 758 P.2d 13 (1988)).
Smith argues that even if the evidence is sufficient to support a finding of particular vulnerability, the trial court was precluded from making such a finding because our prior opinion held that the evidence was insufficient to prove mental incapacity or physical helplessness under RCW 9A.44.010.
We disagree for two reasons. First, a person who is not mentally incapable or physically helpless within the meaning of RCW 9A.44.010 can nonetheless be particularly vulnerable for purposes of RCW 9.94A.390. Second, mental incapacity and physical helplessness are elements of rape that must be proven beyond a reasonable doubt; particular vulnerability is a sentencing factor that must be proved by a preponderance of the evidence; and a negative finding based a higher burden of proof does not preclude a positive finding based on a lower burden of proof..
Under RCW 9A.44.010(4), "`[m]ental incapacity' is that condition existing at the time of the offense which prevents a person from understanding the nature or consequences of the act of sexual intercourse whether that condition is produced by illness, defect, the influence of a substance or from some other cause." Under RCW 9A.44.010(5), "`[p]hysically helpless' means a person who is unconscious or for any other reason is physically unable to communicate unwillingness to an act." Under RCW 9.94A.535(2)(b), a victim is particularly vulnerable if he or she is "incapable of resistance" or if he or she possesses a characteristic (e.g., age, State v. Jones, 130 Wn.2d 302, 922 P.2d 806 (1996); State v. Armstrong, 106 Wn.2d 547, 723 P.2d 1111 (1986); disability, State v. Hooper, 100 Wn. App. 179, 997 P.2d 936 (2000); illness, State v. Scott, 72 Wn. App. 207, 866 P.2d 1258 (1993), aff'd sub nom., State v. Ritchie, 126 Wn.2d 388, 894 P.2d 1308 (1995); intoxication, State v. Burkins, 94 Wn. App. 677, 973 P.2d 15, review denied, 138 Wn.2d 1014 (1999)) that makes him or her abnormally vulnerable to the offense.
In re.
State v. Strauss, 119 Wn.2d 401, 410-11, 832 P.2d 78 (1992).
Dowling v. United States, 493 U.S. 342, 349, 110 S.Ct. 668, 107 L.Ed.2d 708 (1990); Standlee v. Smith, 83 Wn.2d 405, 407, 518 P.2d 721 (1974). Strauss, 119 Wn.2d 401, involved an earlier appellate ruling that precluded certain findings made later. It does not apply here, where there is no such appellate ruling.
We conclude that the trial court properly found particularly vulnerability. Smith cannot reasonably dispute, nor does he dispute, that particular vulnerability, if properly found, is a substantial and compelling reason for an exceptional sentence. The trial court expressly stated that it would have imposed its exceptional sentence based only on particular vulnerability, so it is unnecessary to reach its remaining findings. The judgment entered below is affirmed.
RCW 9.94A.535(2)(b) (aggravating factor is whether "defendant knew or should have known that the victim of the current offense was particularly vulnerable or incapable of resistance due to extreme youth, advanced age, disability, or ill health").
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.
BRIDGEWATER and HOUGHTON, JJ., concur.