State v. Brown

Decision Date31 December 1990
Docket NumberNo. 24914-2-I,24914-2-I
Citation60 Wn.App. 60,802 P.2d 803
CourtWashington Court of Appeals
PartiesSTATE of Washington, Respondent, v. Harold A. BROWN, Appellant. Division 1
Washington Appellate Defender, Rita Griffith, Seattle, for appellant

Seth Dawson, Snohomish County Pros. Atty., S. Aaron Fine, Everett, for respondent.


Harold A. Brown appeals his conviction for second degree assault. We remand for resentencing.


On May 12, 1989, Brown was charged by information with second degree assault upon his 11-year-old son, Jesse Brown. The charge arose from conduct occurring on March 22, 1989. On that morning, Jesse was sent to the school nurse after getting in a fight with several other boys. In addition to some marks on the child's face and shoulder, the nurse noticed bruises and marks on his buttocks that she did not believe came from the fight with the other boys. The nurse testified that she called Child Protective Services (CPS) after observing "massive bruising and damage ... with bright red colorings, swollen tissue and blue marks across the full width of the buttocks."

Jesse told the CPS worker that his father had made him remove his pants and had spanked him that morning after learning Jesse had misbehaved in school. The CPS worker also testified that she was surprised at Jesse's willingness to remove his pants in her presence, and she testified that boys of that age normally show more reticence.

Jesse was examined by medical personnel at the hospital, and according to their trial testimony, the bruises and marks on the buttocks were consistent with being hit with a Jesse's teacher testified that Jesse was a student who had difficulties with social skills and who engaged in name-calling, swearing, throwing things, and interfering with others' school work. The teachers had instituted a disciplinary/reward program for Jesse, but there were times when this was inadequate. At these times, the teacher or the principal would contact Brown, who would then go to the school to discuss Jesse's behavior. Brown testified that he had missed so much work that he was concerned that he might lose his job.

                belt or a stick.   One doctor estimated that at least eight or nine blows were inflicted.   Another doctor stated that she believed that the degree of severity of the bruises indicated that a significant amount of force was used

Jesse's teacher left a message on Brown's answering machine on March 21, 1989 because of Jesse's inappropriate behavior in resisting work and using crude language. The teacher and Brown spoke on the morning of March 22. Brown testified that after the conversation he spanked Jesse with a belt. Brown admitted that he "lost it" while spanking the child, and that he had used "a little too much force."

Although instructed on the lesser included offenses of third and fourth degree assault, the jury found Brown guilty of second degree assault. At sentencing, the prosecutor indicated that Brown's calculated offender score was 6, based on a 1966 burglary conviction, three concurrent 1967 convictions--one for burglary, one for strong arm robbery, and two counts of robbery which were counted as one and doubled as a violent offense--a 1975 possession of heroin conviction, and a 1982 assault conviction that was doubled as a violent offense. The defense argued that there was no documentation to prove the constitutional validity of the prior convictions and to determine whether they were class B or class C felonies, which might be subject to "washout" provisions. Brown was apparently discharged on the 1967 convictions in 1972 and served no time on the possession charge.

The court imposed an exceptional sentence of 90 months. The court's written exceptional sentence findings stated that the defendant knew that the victim was particularly vulnerable due to extreme youth and that the defendant used his position of trust and confidence as the child's father to facilitate the commission of the crime.

However, in its oral decision, the court stated as follows:

It's not just an isolated incidence of a spanking. The total reaction of the lad to all of the circumstances and the background here makes this Court feel that this was not some dad spanking a son; this was a, as he said, he lost it, and he loses it all the time. The habitual habits of violence and abuse are well documented, and the habitualness of his actions--the man is forty-four now--are such that the probability of rehabilitation is very slight.

I think Mr. Johnsen, who has been professionally acute over the years, best sums up the Court's thinking. "It would seem appropriate that Brown be confined until such time that this child is no longer a minor." On the basis of that I'm going to sentence Mr. Brown to ninety months ... so that when he is out the lad is eighteen plus.

When asked by the defense attorney what the court was finding as the standard range, the court stated that it was accepting the State's calculation of 33 to 43 months. However, the court further stated that the accuracy of the standard range was not really an issue because the exceptional sentence was based on when Jesse would reach majority: "I want the man behind bars until at least the majority is reached by the son."

This appeal timely followed.


Brown was charged under RCW 9A.36.021(1)(a) and (g). These subsections read in pertinent part as follows:

A person is guilty of assault in the second degree if he or she, under circumstances not amounting to assault in the first degree:

(a) Intentionally assaults another and thereby recklessly inflicts substantial bodily harm; or

. . . . .

(g) Knowingly inflicts bodily harm which by design causes such pain or agony as to be the equivalent of that produced by torture.

Brown argues that subsection (g) is unconstitutionally vague.

A statute is presumed constitutional, and the party challenging the legislative enactment has the burden of proving it is unconstitutional. State v. Rhodes, 92 Wash.2d 755, 600 P.2d 1264 (1979). "A statute is void for vagueness under the Fourteenth Amendment if it is framed in terms so vague that persons of common intelligence must necessarily guess at its meaning and differ as to its application." Myrick v. Board of Pierce Cy. Comm'rs, 102 Wash.2d 698, 707, 677 P.2d 140, 687 P.2d 1152 (1984). "[I]f men of ordinary intelligence can understand a penal statute, notwithstanding some possible areas of disagreement, it is not wanting in certainty." State v. Maciolek, 101 Wash.2d 259, 265, 676 P.2d 996 (1984).

In Bellevue v. Miller, 85 Wash.2d 539, 536 P.2d 603 (1975), the Washington Supreme Court set forth guidelines for determining constitutionality: The constitutional requirement of definiteness of statutes has two bases. The first is that citizens must have notice of what conduct is proscribed. Secondly, vague laws offend due process because they " 'leave judges and jurors free to decide, without any legally fixed standards, what is prohibited and what is not in each particular case.' " Miller, 85 Wash.2d at 544, 536 P.2d 603 (quoting Giaccio v. Pennsylvania, 382 U.S. 399, 402-03, 86 S.Ct. 518, 520-21, 15 L.Ed.2d 447 (1966)).

Brown's specific allegations of vagueness are that the terms "torture" and "by design" are not defined by the statute. With respect to the word "torture", the court's instructions defined the term as "the infliction of severe or intense pain as punishment or coercion, or for sheer cruelty." Instruction 9. The jury was not left to speculate as to Therefore, the only question is whether the term "torture" is one of common understanding, such that citizens have notice of what conduct is proscribed. The State contends that other jurisdictions have held that the word torture is not vague. In State v. Cornell, 304 Or. 27, 741 P.2d 501 (1987), the Oregon Supreme Court construed a statute that elevates murder to aggravated murder if it is committed " 'in the course of ... torture of the victim.' " Cornell, 741 P.2d at 502 (quoting ORS 163.095(1)(e)). The Cornell court held that the word "torture" may be commonly understood, and that while they might vary slightly, all definitions of the term contain sufficient common elements. Thus, the Cornell court determined that a fact-finder would not have unbridled discretion to apply the term, and that the word "torture" provides notice, with a reasonable degree of certainty, of what conduct is forbidden. Therefore, the Cornell court held that the term "torture" is not vague. Cornell, 741 P.2d at 504.

the meaning of this term, and Brown did not object to this instruction at trial.

Applying such reasoning to RCW 9A.36.021, we hold that the use of the term "torture" in this statute is not unconstitutionally vague. In addition, the phrase "by design" is a commonly understood term meaning "intentionally." Thus, we determine that Brown's void for vagueness challenge must fail.


Jury verdicts in criminal cases must be unanimous under Washington law. State v. Stephens, 93 Wash.2d 186, 607 P.2d 304 (1980). However, when alternative means of committing a single crime are charged and the State presents substantial evidence to support each alternative, jurors need not be unanimous as to the mode of commission. State v. Arndt, 87 Wash.2d 374, 553 P.2d 1328 (1976). In State v. Whitney, 108 Wash.2d 506, 739 P.2d 1150 (1987), the Washington Supreme Court set forth the appropriate test as to each alternative as being "supported by substantial Here, Brown only challenges the sufficiency of the evidence regarding RCW 9A.36.021(1)(g), the "torture" alternative. He argues that the State presented no evidence that his actions were designed to cause the kind of pain that would be the equivalent to that caused by torture.

                evidence such that any jury could find guilt beyond a reasonable doubt ..."  Whitney, 108 Wash.2d at 512, 739 P.2d 1150.

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