Opinion
No. 25240-6-II.
Filed: May 25, 2001. DO NOT CITE. SEE RAP 10.4(h). UNPUBLISHED OPINION.
Appeal from Superior Court of Clark County, No. 99-1-00325-0, Hon. James D. Ladley, October 14, 1999, Judgment or order under review.
Counsel for Appellant(s), Suzan L. Clark, Attorney At Law, 1014 Franklin St Ste 214, Vancouver, WA 98660.
Counsel for Respondent(s), Jeannie M. Bryant, Clark Co Deputy Pros. Atty., 1200 Franklin, Vancouver, WA 98660.
A jury convicted Charles Anthony Longjaw of first degree rape, first degree kidnapping, second degree robbery, and second degree assault. Longjaw appeals his 216 month exceptional sentence for first degree rape. We affirm.
Facts
SP met Longjaw in 1992 and they became friends. On February 19, 1999 Longjaw unexpectedly appeared at SP's place of employment. At her request, Longjaw left and returned later when she got off work. They went to SP's home in her car. Longjaw intended to spend the weekend with her but SP hoped to figure out a way to return Longjaw to his home.
At her house, SP was making tea in the kitchen when Longjaw approached her from behind and started to kiss her neck. She pushed him away. Longjaw asked if anyone else was home and she said no. Longjaw picked up SP and carried her to the TV room. SP told Longjaw he was hurting her.
Longjaw threw SP onto the TV room couch and ripped open the front of her shirt, causing all the buttons to pop off. SP was confused, she tried to get up, and was knocked back on to the couch when Longjaw hit her above the left eye. SP said "You hurt me, my face is bleeding." Report of Proceedings at 104. Longjaw struck her again, hitting her in the mouth.
SP testified that Longjaw struck her at least four times: once above her eye, once in her mouth, and twice on her left cheek. The blows occurred in succession very quickly `[p]robably within a minute.' Report of Proceedings at 105. The blow to her mouth knocked out two front teeth.
Longjaw tore off SP's skirt and removed her underwear. SP landed on the floor on her knees and Longjaw attempted anal penetration. She kept saying `no, no, no.' Report of Proceedings at 106. Longjaw then picked up SP `just like a rag doll and threw [her] back on the couch[,]' Id. at 106, where he penetrated her vaginally. Sometime during the events in the TV room, Longjaw said to SP "I'm going to kill you." Id. at 110.
After the rape, Longjaw told SP to wash the blood off her face. SP was bleeding from her forehead and mouth; she washed up in the bathroom.
Longjaw asked SP for her car keys. At Longjaw's command and under duress SP got into the car with him. SP went with him partly because she did not want her children to find a `dead mother' in their home if she died from her injuries.
Longjaw drove while SP sat in the passenger seat. Longjaw asked SP for directions to the freeway. As they were approaching a stop sign at an intersection, SP jumped out of the car. SP ran to her ex-husband's house where she called 911.
Sergeant Melanie Kenoyer of the Clark County Sheriff's Office took pictures of SP's injuries. These photographs were admitted into evidence.
Kenoyer testified that the photographs were fair depictions of SP's injuries on February 19, which showed: missing front teeth; a cut above the left eye and swelling on the left side of her face; bruising on her left arm around the elbow; injuries to her hands and fingers; abrasions on her left knee.
In the early morning hours of February 20 SP was treated in the Southwest Washington Medical Center emergency room by Jeff Clark, a physician's assistant. He described SP's injuries as follows: (1) a one inch cut above her left eye which required stitches, (2) facial contusions and lacerations, and (3) two missing front teeth, which he could not put back in because of the fracture in the alveolar ridge of her jaw. Clark opined that it `[t]akes a pretty good blow to knock the teeth out and break the bone that they're sitting in.' Report of Proceedings at 90.
At sentencing the trial court ruled that the kidnapping, assault, and robbery were the same criminal conduct. Based on a zero offender score, the standard range for first degree rape is 93 to 123 months. The State requested an exceptional sentence of 360 months. The court imposed an exceptional sentence of 216 months based on the aggravating factors of gratuitous violence and invasion into the zone of privacy, and entered the following written findings and conclusions.
Findings of Fact
1. The victim allowed the defendant to come to her home. The victim had taken off her earrings and shoes upon entering her home. She was preparing tea when the defendant initially contacted her. The defendant had asked the victim if there was anyone else in the residence. He then took her to a room in her residence and sexually assaulted her.
2. The defendant struck the victim multiple times in the face during the assault. The victim suffered multiple injuries from the multiple strikes that included severe bruising, fracture of the bones in her face that resulted in the loss of her teeth and a cut over her eye that required stitches.
Conclusions of Law
1. The sexual assault of the victim took place in her zone of privacy, her residence.
2. The defendant inflicted multiple injuries upon the victim and these were gratuitous.
Clerk's Papers at 94.
Longjaw contends that `the findings of fact entered by the court are insufficient to support the conclusions of law justifying the exceptional sentence.' Br. of Appellant at 6. He does not argue that the sentence is clearly excessive.
Analysis
The trial court may depart from the standard range and impose an exceptional sentence when there are substantial and compelling reasons to do so. RCW 9.94A.120(2). Whether the trial court's reasons are supported by the record is a factual determination which will be upheld on appeal unless clearly erroneous. State v. Grewe, 117 Wn.2d 211, 218, 813 P.2d 1238 (1991).
On the other hand, an appellate court independently determines as a matter of law whether the reasons justify an exceptional sentence. State v. Vaughn, 83 Wn. App. 669, 675, 924 P.2d 27 (1996) (citing State v. Nordby, 106 Wn.2d 514, 518, 723 P.2d 1117 (1986)), review denied, 131 Wn.2d 1018 (1997). The reasons must be "substantial and compelling' and must take into account factors other than those necessarily considered' in setting the standard range for the offense. Vaughn, 83 Wn. App. at 675 (quoting Nordby, 106 Wn.2d at 518). A court cannot base an exceptional sentence on a factor that does not distinguish the defendant's behavior from that inherent to the crime. Grewe, 117 Wn.2d at 216; Vaughn, 83 Wn. App. at 675.
We may uphold an exceptional sentence if we find any of the reasons for imposing the sentence to be valid. Vaughn, 83 Wn. App. at 675. Even if we decide that any of the reasons is invalid, remand is necessary only if it is not clear whether the sentencing court would have imposed the same sentence based on the valid reasons alone. Vaughn, 83 Wn. App. at 675.
A. Zone of Privacy
Raping a victim in her own bedroom is an invasion into the victim's `zone of privacy' which constitutes an aggravating factor for an exceptional sentence. State v. Falling, 50 Wn. App. 47, 55, 747 P.2d 1119 (1987). This factor recognizes the psychological impact on the victim who "has to contend psychologically . . . with the fact that her home is no longer the island of security that she perhaps thought it was." Falling, 50 Wn. App. at 55 (quoting State v. Van Gorden, 326 N.W.2d 633 (Minn. 1982)). The zone of privacy extends to other rooms in the home. See State v. Lough, 70 Wn. App. 302, 336, 853 P.2d 920 (1993) (rejecting defendant's argument that because the rape occurred in the victim's living room, rather than her bedroom, her zone of privacy was not invaded), aff'd, 125 Wn.2d 847 (1995).
Thus, when the victim is raped in her home, this invasion into her zone of privacy is a substantial, compelling reason for an upward departure from the standard range. This is the case even if the perpetrator was in the victim's home by her invitation. See Lough, 70 Wn. App. at 336 (`The fact that Lough was initially invited into P.A.'s home does not alter our view. The invitation was automatically revoked when Lough drugged P.A.').
Longjaw attempts to distinguish Lough, arguing that SP's `invitation was not revoked by any subsequent act.' Br. of Appellant at 9. We disagree. SP verbally and physically resisted Longjaw. This resistance was a clear revocation of her initial invitation for Longjaw to be in her home.
The trial court was not clearly erroneous in determining that the occurrence of the rape in SP's house was an invasion into her zone of privacy. Further, this was a substantial, compelling reason to support the exceptional sentence. See Lough, 70 Wn. App. at 336.
B. Gratuitous Violence
An exceptional sentence may be imposed if the perpetrator's conduct during the commission of the offense `manifested deliberate cruelty to the victim.' RCW 9.94A.390(2)(a). Deliberate cruelty means `gratuitous violence, or other conduct which inflicts physical, psychological or emotional pain as an end in itself.' State v. Strauss, 54 Wn. App. 408, 418, 773 P.2d 898 (1989). Our courts have recognized that where the defendant's conduct includes gratuitous violence and is significantly more serious or egregious than typical, then the trial court is justified in imposing an exceptional sentence. State v. Holyoak, 49 Wn. App. 691, 696, 745 P.2d 515 (1987), review denied, 110 Wn.2d 1007 (1988). Exceptional sentences have been upheld `based on the number and nature of the sexual acts involved, the length of time involved, location of the crime, infliction of physical injury, threats to the victim during the crime and threats of injury to other persons.' State v. Hernandez, 48 Wn. App. 751, 757-58, 740 P.2d 374 (footnotes omitted, citing D. Boerner, Sentencing in Washington § 9.13, at 9-35 (1985)), review denied, 109 Wn.2d 1020 (1987). E.g., State v. Falling, 50 Wn. App. at 55; State v. Altum, 47 Wn. App. 495, 735 P.2d 1356, review denied, 108 Wn.2d 1024 (1987); State v. Dennis, 45 Wn. App. 893, 728 P.2d 1075 (1986), review denied, 108 Wn.2d 1007 (1987).
However, if the injuries are such that they were already contemplated by the legislature in establishing the standard range, then the injuries cannot be used to support an exceptional sentence. See State v. Armstrong, 106 Wn.2d 547, 551, 723 P.2d 1111 (1986) (holding that the burns inflicted on the 10-month-old victim by defendant's throwing boiling coffee on the child and plunging the child's foot in the coffee were injuries accounted for in the offense of second degree assault and could not justify an exceptional sentence). In State v. Post, 59 Wn. App. 389, 797 P.2d 1160 (1990), aff'd, 118 Wn.2d 596 (1992), the evidence did not support a deliberate cruelty finding where the defendant's choking and muzzling the rape victim was for the purpose of exacting compliance. Post, 59 Wn. App. at 400. Similarly in Strauss, the defendant's acts of holding the victim by the throat and telling her it was worth her life to cooperate was for the purpose of exacting compliance and deemed the type of conduct normally associated with rape. Post, 54 Wn. App. at 418-419. Thus, in Post and Strauss, this court held that the defendant's conduct did not constitute deliberate cruelty to justify the exceptional sentence. Post, 59 Wn. App. at 400; Strauss, 54 Wn. App. at 419.
See also Nordby, 106 Wn.2d at 518 (vehicular assault victim's injuries did not justify the exceptional sentence because the severity of the injuries were already considered in setting the crime's presumptive range); State v. Payne, 58 Wn. App. 215, 219, 795 P.2d 134, 805 P.2d 247 (1990) (infliction of serious bodily injury could not be an aggravating factor for the offense of first degree murder).
Longjaw argues that `the facts of this case do not establish violence beyond that contemplated by the rape in the first degree statute.' Br. of Appellant at 12. A person commits first degree rape when he engages in sexual intercourse with another by forcible compulsion and `[i]nflicts serious physical injury, including but not limited to physical injury which renders the victim unconscious.' RCW 9A.44.040(c). Here the key question is: Were SP's injuries of such nature and seriousness as to support the trial court's finding of gratuitous violence? In other words, was Longjaw's conduct more serious or egregious than in the `typical' first degree rape? We answer this question in the affirmative.
`Serious physical injury' is not defined in the criminal code, title 9A RCW. This is an ordinary term that does not need legal definition. See State v. Welker, 37 Wn. App. 628, 638 n. 2, 683 P.2d 1110, review denied, 102 Wn.2d 1006 (1984) (in dicta this court noted that this `term speaks for itself' and is an ordinary term which need not be defined in a jury instruction). In this case the State cites to the meaning of `serious bodily injury' as used in RCW 46.61.522, which defines the offense of vehicular assault. Br. of Respondent at 8. This is not helpful to our analysis here involving the injuries and conduct considered by the legislature in setting the standard range for first degree rape.
Longjaw struck SP at least four times. The resulting injuries included a cut above her eye requiring stitches, several facial lacerations and contusions, the loss of two front teeth, and a fractured jaw bone. We agree with the trial court that there was `far more violence than was necessary' to perpetrate the rape. Report of Proceedings (Oct. 14, 1999) at 19. SP suffered injuries greater than those typically associated with first degree rape, particularly losing two front teeth by a blow to her mouth. Though the facts here may not be as extreme as in other first degree rape cases where the exceptional sentence was based on `deliberate cruelty,' we nevertheless believe that Longjaw's conduct was significantly more serious than contemplated by the legislature for first degree rape.
E.g., Falling, 50 Wn. App. at 55 (defendant penetrated rape victim twice, demonstrated contempt for her by repeatedly calling her `bitch,' and threatened to injure or kill her throughout the ordeal); Hernandez, 48 Wn. App. at 758 (victim abducted, driven across state line and subjected to multiple rapes over a 3-hour period); Altum, 47 Wn. App. at 499, 502-503 (victim suffered broken nose, chipped tooth, and threats of imminent death, was gang raped and had half her scalp hair pulled out); Dennis, 45 Wn. App. at 897 (victim suffered multiple penetrations and was gang raped).
Even if we were to hold that the evidence of injury was insufficient to sustain an exceptional sentence, the exceptional sentence is sustainable upon the invasion of the zone of privacy alone.
The record here supports the trial court's finding on the presence of gratuitous violence. Further, this was a substantial, compelling reason that justifies the exceptional sentence.
Affirmed.
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.
WE CONCUR: HUNT, A.C.J., QUINN-BRINTNALL, J.