Opinion
No. 28631-9-II c/w 28632-7-II
Filed: March 4, 2003 UNPUBLISHED OPINION
Appeal from Superior Court of Grays Harbor County Docket No: 01-1-00624-2 Judgment or order under review Date filed: 03/25/2002
Counsel for Appellant(s), Jonathan Porter Feste, Cotton Law Ofc, P.O. Box 1311, Elma, WA 98541.
Counsel for Respondent(s), Paul Douglas Conroy, Grays Harbor Co Pros Ofc, 102 Broadway Ave W Rm 102, Montesano, WA 98563-3621.
Joshua Zwart appeals his exceptional sentence for third degree child molestation and failure to register as a sex offender. He alleges that the record does not support certain findings related to the exceptional sentence, that several of these findings do not justify an exceptional sentence, that his sentence is clearly excessive, and that the trial court violated the real facts doctrine. We disagree and affirm.
Zwart originally filed two appeals, 28631-9-II and 28632-7-II. We consolidated these cases under cause number 28631-9-II.
FACTS
The State charged Zwart by separate information with (1) failure to register as a sex offender; and (2) third degree child molestation. Zwart pleaded guilty to both charges.
According to Zwart's statement on plea of guilty on the failure to register charge, he moved to Los Angeles, California in spring 2001, without informing law enforcement of his decision to leave the State or where he would be going despite being required to register as a sex offender due to a 1994 molestation conviction. In his statement on plea of guilty on the current molestation charge, Zwart stated, `In March and April 2001, I engaged in inappropriate intimate sexual contact with a person I knew who was probably fifteen years old; I was almost 20.5 years of age.' Clerk's Papers (CP) (28632-7-II) at 18.
The presentence investigation report described the official version of the offenses. The report indicated that for more than one year prior to the alleged molestation, Zwart had been a frequent guest at the victim's home because he and his wife were receiving counseling from the victim's parents. The victim described at least three incidents involving sexual contact with Zwart occurring between early to late April 2001. At least two of these incidents occurred while the victim's parents were not at home. On May 15, 2001, the victim and her mother reported these incidents to the police.
The victim stated that on the night of one of the incidents, she let Zwart into the home after he told her his truck had broken down and he needed a place to stay. She stated that she thought it would be fine to allow him to stay because he had stayed there before. The presentence investigator also contacted the victim's father who stated that he believed Zwart had `violated not only the trust of his daughter but also the trust of the entire family.' CP (28632-7-II) at 30.
The victim's father verified that the family had been providing Zwart and his wife `with guidance and counseling to assist them with personal matters.' CP (28632-7-II) at 30.
The report further indicated that Zwart contacted the police on December 16, 2001, indicated that he was aware that they were looking for him, stated that he had moved to California, and admitted that he had violated his registration requirement.
In a written statement summarized in the presentence report, Zwart admitted to sexual contact with the victim and admitted he knew the victim's parents would not have approved. He recognized that he `should have known better' and that he had exercised poor judgment. CP (28632-7-II) at 30. He asserted that he did not intend to hurt the victim; that he was remorseful because the victim was young, he liked her parents, and he knew he had hurt them by betraying their trust in him; and that he had pleaded guilty because he did not want the victim to have to go through a trial. But he also asserted that the sexual contact was consensual and that the victim had been `flirt[ing]' with him. CP (28632-7-II) at 30.
In addition, the report indicated that Zwart alleged he had been a victim of sexual abuse and rape as a child. It further indicated that Zwart had previously failed to register on two occasions and had previously been convicted for child molestation and several juvenile misdemeanor offenses, including indecent exposure. The report also stated that Zwart had received drug and alcohol counseling and two and one-half years of sex offender treatment prior to the current offenses.
The report indicates that Zwart failed to register twice, but the judgment and sentence reveals only one prior conviction for failure to register. At the sentencing hearing, the State indicated that Zwart had failed to register twice but that one of these instances was considered a violation rather than a new charge.
The investigator who interviewed Zwart concluded that his expressions of remorse were not sincere and observed that he `never showed any emotions or expressed any intrinsic feelings toward the victim.' CP (28632-7-II) at 31. The investigator recommended that the trial court impose the maximum standard range sentence of 43 months because these were not Zwart's first molestation or failure to register offenses and because he continued to commit new sex crimes despite treatment.
In his sentencing memorandum and at the sentencing hearing, Zwart admitted that the molestation victim was the daughter of the minister of his church, that he and his wife had been receiving counseling from the victim's parents, and that he had kissed and fondled the victim several times while her parents were not at home. He apologized for his actions, stated that he recognized that his actions were inappropriate and that he had abused the victim's parents' trust, asked for forgiveness, and stated that he understood that he had `done something that can totally affect somebody's life and the rest of their life.' Report of Proceedings (RP) at 8. But, apart from asserting that he was remorseful, Zwart did not object to the presentence investigation report.
Zwart also emphasized, as he did in his interview with the presentence investigator, that during his childhood he had been exposed to inappropriate sexual behavior and sexually assaulted. He argued that the current offenses `reflect[ed] the syndrome of promiscuity known to those who have been child sexual abuse victims[,]' and asserted that the abuse he had experienced and society's failure to protect him contributed to his behavior. CP (28631-9-II) at 23-24. He further argued that the therapy he had received was inadequate because it failed to address his own abuse: `Indeed, all of the therapy he has ever experienced has accentuated issues of sexual deviancy with little or no analysis of his own experiences of sexual abuse as a boy at the hands of adults never charged.' CP (28631-9-II) at 24.
In its sentencing memorandum and at the sentencing hearing, the State described the offenses in substantially the same way as the presentence report, but it also told the trial court that the facts related to the molestation charge would have supported several additional charges. Additionally, the State informed the trial court that Zwart had admitted to inappropriately touching his own infant child, but it indicated that it did not charge Zwart with this offense because there were no witnesses.
Zwart now alleges that this is a reference to `an incomplete police investigation related to his stepdaughter.' Br. of Appellant at 8 n. 2.
The State further asserted that Zwart had failed to register because he had fled to California to avoid being arrested on the molestation charge and that the plea was reached only after the victim's family made it clear that they did not want the victim to testify at trial. The State recommended concurrent sentences of 6 months on the failure to register charge and 36 months on the molestation charge.
The trial court imposed consecutive exceptional sentences of 36 months on the failure to register charge and 60 months on the molestation charge. The trial court entered the following findings of fact in support of the exceptional sentence on the failure to register charge:
I.
The defendant began committing crimes in 1994. The defendant has on at least three separate occasions received treatment for his alcohol and/or drug use. The defendant also received 2 — years of sex offender treatment while on juvenile parole for his previous sex conviction. With all this help given to the defendant over the years, he still continues to commit crimes and in particular, sex crimes.
II.
Not counting the current offenses, since the defendant was first convicted for crimes in 1994, he has at least thirteen misdemeanor and felony convictions.
III.
The defendant continues to fail to register as a sex offender showing a total disregard for the registration requirement and has shown no remorse at all for violating this law.
IV.
The defendant has ten prior unscored juvenile misdemeanor crimes on his record including: Vehicle Prowl, 3 counts; Minor in Possession of Alcohol, 2 counts; Theft in the Third Degree, 2 counts; Assault in the Fourth Degree, 1 count; and Indecent Exposure, 2 counts.
CP (28631-9-II) at 40-41. The trial court's findings on the molestation charge were identical to findings I, II, and IV on the failure to register charge. In addition, the trial court also made the following findings:
III.
The Court does not believe the defendant is truly remorseful for the damage he has done to victim . . . and her family. . . . .
V.
The victim in this case is the daughter of a family that had been providing the defendant and his wife with guidance and counseling. The defendant had built up a position of trust with the family (he was a frequent guest at their house). The victim allowed the defendant into the residence while her parents were out of town because of the trust the defendant had built up with the victim and her family.
VI.
During the interview with the corrections officer who prepared the presentence investigation report, the defendant `never showed any emotions or expressed any intrinsic feelings towards the victim.' The Court does not believe the defendant's self-serving statements concerning remorse for his crime.
CP (28632-7-II) at 51.
Based on these findings, the trial court concluded that (1) despite receiving treatment, Zwart had failed to rehabilitate himself; (2) his multiple convictions since 1994 demonstrated that he had engaged in `continuous criminal behavior;' (3) he had shown no remorse for failing to register or for the molestation; (4) the molestation was a violation of a position of trust; and (5) his unscored juvenile misdemeanor convictions resulted in a prior sentence that was clearly too lenient. CP (28631-9-II) at 41-42; CP (28632-7-II) at 52. In each case, the trial court concluded that '[e]ach of the above listed aggravating factors independently supports the exceptional sentence[.]' CP (28631-9-II) at 42; CP (28632-7-II) at 52.
ANALYSIS
Exceptional Sentence
A. Standard of Review
We will reverse an exceptional sentence only if (1) the record does not support the trial court's reasons; (2) the reasons do not justify an exceptional sentence; or (3) the length of the sentence is clearly excessive. RCW 9.94A.585(4) (formerly RCW 9.94A.210(4)); State v. Russell, 69 Wn. App. 237, 250, 848 P.2d 743, review denied, 122 Wn.2d 1003 (1993). We review the trial court's factual findings to determine whether they are supported by substantial evidence. Russell, 69 Wn. App. at 250. To determine whether the findings justify the exceptional sentence, we ask whether (1) the Legislature considered the factor in setting the standard range for the offense; and (2) the aggravating factor is "sufficiently substantial and compelling to distinguish the crime in question from others in the same category." Russell, 69 Wn. App. at 250 (quoting State v. Grewe, 117 Wn.2d 211, 216, 813 P.2d 1238 (1991)). A sentence is clearly excessive if it is "clearly unreasonable, i.e., exercised on untenable grounds or for untenable reasons, or an action that no reasonable person would have taken." State v. Stephens, 116 Wn.2d 238, 245, 803 P.2d 319 (1991) (quoting State v. Oxborrow, 106 Wn.2d 525, 531, 723 P.2d 1123 (1986)).
The Legislature recodified former RCW 9.94A.210 in 2001. Laws of 2001, ch. 10, § 6.
B. Abuse of a Position of Trust
Zwart first contends that the trial court's finding that he abused a position of trust is not supported by substantial evidence. Relying on Grewe and State v. Fisher, 108 Wn.2d 419, 427, 739 P.2d 683 (1987), he argues that the facts do not demonstrate the necessary `duration and degree of the relationship,' and that the key inquiry here is whether the victim was particularly vulnerable or incapable of resistance because of her extreme youth. Br. of Appellant at 6. We disagree.
Zwart does not assert that this factor does not justify an exceptional sentence.
Relying on State v. Allert, 117 Wn.2d 156, 815 P.2d 752 (1991), the State asserts that Zwart cannot challenge this finding on appeal because he did not do so during sentencing. Allert states only that factual findings not challenged on appeal are verities on appeal. 117 Wn.2d at 168. Allert does not stand for the proposition that the defendant must object to the trial court's findings below in order to preserve the issue for appeal.
The aggravating factor of abuse of a position of trust, `refers primarily to the trust relationship between the perpetrator and the victim which renders the victim particularly vulnerable to the crime[.]' Russell, 69 Wn. App. at 252. Contrary to Zwart's assertions, the key inquiry is not the age or inherent vulnerability of the victim. Rather, we must determine whether the evidence shows that he was in a position of trust and whether he used the trust relationship to increase the vulnerability of the victim and facilitate the commission of the offense. See Russell, 69 Wn. App. at 252; State v. Garibay, 67 Wn. App. 773, 779, 841 P.2d 49 (1992). Although a trust relationship often involves the relationship between a young child and a caregiver, it is the duration and the degree of the relationship that is determinative, not the age or inherent vulnerability of the victim. See Grewe, 117 Wn.2d at 218-19; State v. Garnica, 105 Wn. App. 762, 772, 20 P.3d 1069 (2001).
Here, the record supports the trial court's conclusion that Zwart placed himself in a position of trust with the victim's family and then used that position to gain access to the victim while she was alone and to facilitate the offense. The record shows that Zwart was a frequent visitor at the victim's parents' home over a period of approximately 16 months. He had also apparently previously been allowed to stay at the home, and the victim stated that she relied on this fact when she told him that he could stay over after he told her that his vehicle had broken down and he needed a place to stay.
Although there is no evidence that Zwart ever acted in a caretaking capacity in respect to the victim, there is evidence that he integrated himself into the family to some extent and that the victim believed she could trust him. This supports the trial court's conclusion that Zwart violated a position of trust when he used his relationship with the victim's family to convince the victim that she could allow him into the home when her parents were not present. Thus, this argument fails.
C. Lack of Remorse
Zwart next asserts that the trial court's findings of lack of remorse are not supported by the record because he repeatedly expressed remorse for his conduct, acknowledged that his actions probably harmed the victim, and pleaded guilty so the victim would not have to go through a trial. Again, we disagree.
Zwart does not assert that this factor does not justify an exceptional sentence.
Additionally, relying on Garibay, Zwart also contends that any refusal to express remorse cannot justify an exceptional sentence because it would require him to admit his guilt and would therefore violate his right to remain silent. Because Zwart admitted to the offense, we need not address this argument.
`A defendant's lack of remorse may also be a sufficient aggravating factor to justify an exceptional sentence.' State v. Ross, 71 Wn. App. 556, 563, 861 P.2d 473, 883 P.2d 329 (1993), review denied, 123 Wn.2d 1019 (1994); see also State v. Wood, 57 Wn. App. 792, 800, 790 P.2d 220, review denied, 115 Wn.2d 1015 (1990). But, to serve as an aggravating factor, `the lack of remorse must be of an aggravated or egregious nature.' Ross, 71 Wn. App. at 563; see also Wood, 57 Wn. App. at 800.
`Whether a sufficient quantity or quality of remorse is present in any case depends on the facts.' Ross, 71 Wn. App. at 563. We have upheld an exceptional sentence based in part upon a finding of lack of remorse, where the defendant's conduct `demonstrated a lack of remorse for [his] crime and a lack of respect for the criminal justice system.' State v. Reynolds, 80 Wn. App. 851, 859, 912 P.2d 494 (1996). The record here reveals both.
First, the record shows that Zwart exhibited a lack of respect for the justice system because he repeatedly failed to comply with the registration requirements and intentionally left the state without notifying the proper authorities after he committed the current molestation. Additionally, his attempt to flee the state indicates that he was unwilling to accept the consequences of his behavior.
Second, the record shows that Zwart placed most, if not all, of the blame for his behavior on the prior abuse he suffered and on the system's failure to protect him. He also placed at least some portion of the blame on the victim when he contended that his acts were consensual and in response to her flirtatious behavior. Further, although Zwart asserted that he was remorseful, neither the presentence investigator nor the trial court found these assertions credible, and we do not question the trial court's credibility determinations. Ross, 71 Wn. App. at 564. Zwart's attempt to flee, his continued failure to register, and his continued attempts to avoid taking responsibility for his actions all support the trial court's lack of remorse findings. Accordingly, this argument fails.
D. Failure to Rehabilitate
Next, Zwart appears to contend that (1) the finding that he failed to rehabilitate was in error because the trial court failed to take into consideration whether his treatment was appropriate; and (2) the use of this factor did not justify the exceptional sentence because it was `arbitrary.'
`Mr. Zwart has not failed to rehabilitate himself, with the sentencing Court failing to account for the abuse he suffered as a victim by other perpetrators.' Br. of Appellant at 10.
`The sentencing Court's belief that he failed rehabilitation seems arbitrary as grounds on which to base an exceptional sentence.' Br. of Appellant at 11.
First, Zwart appears to argue that the trial court should not have found that he had failed to rehabilitate because it failed to investigate his prior experience as an abuse victim and '[t]he treatment he had previously received as a perpetrator did not account for his own victimization.' Br. of Appellant at 11. But throughout the sentencing proceedings, Zwart repeatedly informed the trial court that he had suffered abuse and asserted that his treatment did not take this history into account, and there is no indication in the record that the trial court did not consider this information.
Second, Zwart appears to contend that failure to rehabilitate is an `arbitrary' ground `on which to base an exceptional sentence.' Br. of Appellant at 11. But it appears that the trial court used this determination, in conjunction with its determination that Zwart had engaged in continuous criminal behavior, as a basis for finding that Zwart posed a threat of future dangerousness.
`Future dangerousness is a nonstatutory aggravating factor which may support an exceptional sentence in a sexual offense case.' State v. Halgren, 137 Wn.2d 340, 346, 971 P.2d 512 (1999). `To impose an exceptional sentence in a sexual offense case, two conditions must be satisfied: '(1) the defendant has a history of similar criminal acts; and (2) the defendant is not likely to be amenable to treatment." Halgren, 137 Wn.2d at 346 (quoting State v. Strauss, 119 Wn.2d 401, 414, 832 P.2d 78 (1992)). Lack of amenability to treatment may be established by showing that the offender continued committing sex offenses during or soon after treatment. State v. McNallie, 123 Wn.2d 585, 591, 870 P.2d 295 (1994) (`It is difficult to conceive of more reliable objective evidence of lack of amenability to treatment and future dangerousness than the fact that, despite being in treatment, the defendant continues to engage in the very criminal behavior for which he or she is being treated.').
Because the molestation charge is classified as a sex offense, see former RCW 9.94A.030(37)(a)(i) (2000), Zwart had previously been convicted of first degree molestation as well as two counts of indecent exposure, Zwart continued to offend despite receiving treatment, and the trial court determined that Zwart had engaged in `continuous criminal behavior,' this aggravating factor clearly applies here.
E. Juvenile Misdemeanors
Zwart next contends that his prior juvenile misdemeanor adjudications cannot justify the exceptional sentence. He appears to argue that the Legislature already considered this factor in setting the standard range for the offense when it decided to include prior felonies but not prior misdemeanors in the offender score calculations.
Zwart does not assert that the record does not support this factor.
It is clear that the Legislature has considered whether uncounted misdemeanors may be a factor in sentencing. But, contrary to Zwart's assertions, the Legislature has expressly stated that these offenses may be the basis of an exceptional sentence.
Under RCW 9.94A.535(2)(j) (formerly RCW 9.94A.390(2)(j)), the trial court can consider unscored misdemeanors if the presumptive sentence is clearly too lenient in light of the purposes of the Sentencing Reform Act (SRA). RCW 9.94A.535(2)(j) demonstrates that the Legislature did intend the trial court to consider unscored misdemeanors under certain circumstances. Here, where Zwart had 10 unscored misdemeanors, we cannot say that the trial court erred in finding that the sentence was clearly too lenient in light of this history.
The Legislature recodified former RCW 9.94A.390, renumbering the statute as RCW 9.94A.535 in 2001. Laws of 2001, ch. 10, § 6.
F. Clearly Excessive
Finally, Zwart contends that the sentence on the failure to register charge was clearly excessive. To support his argument, he points out that the exceptional sentence on the failure to register charge was six times the sentence recommended by the State while the exceptional sentence on the molestation charge, which was based on many of the same aggravating factors, was less than twice the sentence recommended by the State.
Zwart does not appear to assert that the sentence on the molestation charge was clearly excessive.
A trial court abuses its discretion in determining the length of an exceptional sentence if it (1) `rel[ies] on an impermissible reason (the `untenable grounds/untenable reasons' prong of the standard)'; or (2) `impose[s] a sentence which is so long that, in light of the record, it shocks the conscience of the reviewing court (the `no reasonable person' prong of the standard).' Ross, 71 Wn. App. at 571; see also State v. Ritchie, 126 Wn.2d 388, 395-96, 894 P.2d 1308 (1995). As we reject Zwart's challenges to the grounds of the exceptional sentence above, we need only address whether the sentence `shocks the conscience' of this court.
The trial court imposed a three-year sentence on the failure to register charge, despite the State's recommendation of six months. We recognize that this sentence is substantially higher than that recommended by the State and that it is a proportionally greater increase than the trial court imposed on the molestation conviction. But we cannot say that this sentence goes beyond what a reasonable person would find appropriate in light of the numerous aggravating factors the trial court found, the relatively short standard range sentence allowed for this conviction, and Zwart's repeated failure to register as required.
Because we conclude that the challenged trial court findings are supported by substantial evidence, that these factors support the exceptional sentences, and that the sentences are not clearly excessive, Zwart's challenge to the exceptional sentences fail.
Real Facts Doctrine
Finally, Zwart contends that the real facts doctrine was violated when the State informed the trial court that it could have charged Zwart with additional offenses based on his contact with the current victim and that there was evidence suggesting that Zwart may have also molested his infant daughter. Again, we disagree.
The SRA prohibits consideration of facts that establish the elements of additional crimes in determining whether to impose an aggravated sentence: `Facts that establish the elements of a more serious crime or additional crimes may not be used to go outside the presumptive sentence range except upon stipulation or when specifically provided for in [the SRA].' Former RCW 9.94A.370(2) (1999). This principle is commonly known as the `real facts' doctrine. State v. Perez, 69 Wn. App. 133, 139-40, 847 P.2d 532, review denied, 122 Wn.2d 1015 (1993). But here, although it is arguable that the State introduced evidence that would fall under the real facts doctrine, there is no evidence in the record that the trial court considered the additional information. Thus, it follows that no violation of the real facts doctrine occurred and this argument fails.
The Legislature recodified RCW 9.94A.370 in 2001, renumbering it as RCW 9.94A.530. Laws of 2001, ch. 10, § 6.
We affirm.
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.
MORGAN and HUNT, JJ., concur.