State v. Brush
| Decision Date | 28 August 2018 |
| Docket Number | No. 49760-3-II,49760-3-II |
| Citation | 425 P.3d 545 |
| Parties | STATE of Washington, Respondent, v. Brian K. BRUSH, Appellant. |
| Court | Washington Court of Appeals |
Jodi R. Backlund, Backlund & Mistry, P.O. Box 6490, Olympia, WA, 98507-6490, for Appellant.
Mark D. McClain, Pacific County Prosecutor's Office, P.O. Box 45, South Bend, WA, 98586-0045, for Respondent.
PUBLISHED OPINION
¶ 1 Brian Brush appeals the trial court’s imposition of an exceptional sentence of 1,060 months for his first degree murder conviction. Brush murdered his former girlfriend, Lisa Bonney. The court imposed the exceptional sentence in part under RCW 9.94A.535(3)(h)(i), based on a finding that Brush had committed an aggravated domestic violence offense as part of an ongoing pattern of psychological abuse of Bonney manifested by multiple incidents over a prolonged period of time.
¶ 2 We hold that (1) the domestic violence/ongoing pattern of psychological abuse aggravator is not unconstitutionally overbroad; (2) under State v. Baldwin , 150 Wash.2d 448, 78 P.3d 1005 (2003), Brush cannot challenge the ongoing pattern of psychological abuse aggravator for being unconstitutionally vague; (3) the trial court did not err in finding that the ongoing pattern of psychological abuse occurred over a prolonged period of time based on Brush’s abuse of Bonney over nearly seven weeks; and (4) the trial court’s sentence was not clearly excessive because it does not shock the conscience in light of the nature of Brush’s crime.
¶ 3 Accordingly, we affirm Brush’s sentence.
¶ 4 For some time, Brush and Bonney had been in an on-and-off relationship. In April 2008, Bonney moved into Brush’s house in Oregon along with her daughter, Elizabeth Bonney.1 Following a fight, Brush excluded them from the house and prevented them from returning by changing the locks on the doors.
¶ 5 Brush and Bonney continued to have contact and later lived together in Long Beach, Washington. On July 25, 2009, an altercation at their house resulted in Brush smashing a wine bottle against the counter, throwing electronics and personal possessions belonging to Bonney out of the house, and using a hammer to dent the hood and roof of Bonney’s car.
¶ 6 When law enforcement responded, Brush alleged that Bonney had assaulted him by scratching him. The officers determined that Bonney was the primary aggressor, arrested her, and took her to jail. The following day, Brush withdrew his statement and stated that the assault had never occurred. Brush later admitted that his allegations against Bonney were untrue. After that night, Bonney and Elizabeth moved into a different house in Long Beach.
¶ 7 Over the next month, on several occasions Brush appeared to be following Bonney.
Two incidents occurred when Bonney was with a friend, Dan Driscoll. On August 12, while Bonney was getting food with Driscoll, she saw a pickup truck drive by. Driscoll later testified that after Bonney saw the truck she became terrified. Bonney and Driscoll then went to the beach, where Driscoll saw the truck again. Bonney told him that the truck belonged to Brush. She said that she wanted to leave because she did not feel safe.
¶ 8 On August 16, Bonney and Driscoll went to a local festival where Bonney again saw Brush’s truck. She became scared, causing her and Driscoll to leave for Driscoll’s parents’ house. While Bonney and Driscoll were at the house, Bonney left to talk to Brush. After she returned, Brush came to the house and knocked on the door. Bonney told Driscoll to be quiet and not to answer, and she said that she did not want any contact with Brush.
¶ 9 Bonney left immediately afterwards and called Elizabeth. She told Elizabeth that Brush was stalking her and asked Elizabeth to meet her at their house. Elizabeth testified that Bonney sounded scared on the phone and that she was crying. Bonney and Elizabeth went to a friend’s house while they tried to figure out what to do.
¶ 10 Later that night, Bonney and Elizabeth thought it would be safe to go to the beach, a few blocks away. Before leaving the apartment, Elizabeth looked to see if Brush’s truck was nearby—she testified that several times before he had been watching them from around the corner. Elizabeth testified that as they walked along the edge of the road, she heard a truck and saw the lights of the truck behind them. As Elizabeth heard the truck accelerating, she turned around and saw that the truck was not stopping. She thought either that they would be hit by the truck or that there would be some other altercation.
¶ 11 Bonney and Elizabeth ran to a nearby parking lot and hid. As the truck drove past, Elizabeth saw that Brush was inside. Bonney and Elizabeth were both shaken up and crying. Bonney was so scared that she began throwing up.
¶ 12 When Bonney and Elizabeth returned to their house, there were voice messages on their phone in which Brush stated, Report of Proceedings (RP) (Nov. 15, 2016) at 219. He also threatened to turn her in for improperly collecting unemployment and for committing tax fraud.
¶ 13 Brush made a second assault complaint against Bonney with the police. Again, the complaint was false.
¶ 14 Another of Bonney’s friends, Steven Berglund, later testified about two more incidents in which Brush appeared to be following Bonney. On August 31, Berglund was helping Bonney move a bed to her new house when he saw Brush sitting in his truck two blocks away. Brush left when Berglund saw him, but returned to the same area a little while later.
¶ 15 On September 4, Berglund and a friend were talking with Bonney in a parking lot when Brush drove by very slowly and looked at them. Berglund testified that when he pointed Brush out to Bonney, she seemed frightened and fearful that Brush was there.
¶ 16 On September 11, Brush and Bonney had been discussing various financial issues by text message and they agreed to meet in person. Bonney suggested meeting at a park. When they met, Brush and Bonney began to argue. As the argument escalated, Brush got a shotgun from his nearby truck.
¶ 17 Brush used the shotgun to shoot Bonney four times at a short distance, killing her. The last shot, to Bonney’s head, was at a distance of three or four feet. Three law enforcement officers were walking nearby and witnessed the shooting.
¶ 18 A jury found Brush guilty of first degree murder. The jury also found a number of aggravating factors under RCW 9.94A.535(3) for purposes of sentencing, including that the crime was an aggravated domestic violence offense. The trial court’s jury instruction defined "aggravated domestic violence offense" to include an offense that involved domestic violence and was part of an ongoing pattern of psychological abuse over a prolonged period of time.
¶ 19 Brush’s standard range sentence was between 240 and 320 months, plus a 60 month firearm enhancement. However, the trial court imposed a 1,000 month exceptional sentence with the 60 month firearm enhancement.
¶ 20 Brush appealed his sentence, arguing that the jury instruction on the domestic violence/ ongoing pattern of psychological abuse aggravator, RCW 9.94A.535(3)(h), provided an improper definition of "prolonged period of time." See State v. Brush , 183 Wash.2d 550, 552-53, 556, 353 P.3d 213 (2015). The Supreme Court held that the instruction was improper and reversed Brush’s exceptional sentence. Id. at 561, 353 P.3d 213. The court remanded to the trial court for consideration of evidence of a prolonged pattern of abuse. Id.
¶ 21 On remand, Brush waived a jury trial on whether his crime was an aggravated domestic violence offense and the issue was tried to the bench. The trial court admitted testimony regarding Brush’s stalking of Bonney and their interactions, as described above.
¶ 22 The trial court entered written findings of fact and conclusions of law, including the following conclusions:
Clerk’s Papers (CP) at 244. The court concluded beyond a reasonable doubt that the crime was an aggravated domestic violence offense under RCW 9.94A.535(3)(h).
¶ 23 The trial court attached a similar statement to its judgment and sentence. The court found that Brush’s offense involved domestic violence and the offense was part of an ongoing pattern of psychological abuse manifested by multiple incidents over a prolonged period of time and that Brush’s conduct manifested deliberate cruelty. Based on its findings and the jury’s prior finding, the court again imposed a 1,000 month exceptional sentence plus an additional 60 month firearm enhancement. The court did not state that it would have imposed the same sentence if only one of the aggravators had been present.
¶ 24 Brush appeals his exceptional sentence.
¶ 25 RCW 9.94A.535(3) provides a list of factors that can support a sentence above the standard range. If the trier of fact finds one of these factors, the trial court is allowed but not required to impose an exceptional sentence. RCW 9.94A.535 ; see State v. Weller , 197 Wash.App. 731, 735, 391 P.3d 527, review denied , 188 Wash.2d 1017, 396 P.3d 337 (2017).
¶ 26 The domestic...
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...DeVore, 2 Wn.App. 2d 651, 413 P.3d 58 (2018) (Division Three), review denied, 191 Wn.2d 1005 (2018); State v. Brush, 5 Wn.App. 2d 40, 425 P.3d 545 (2018) (Division Two), review denied, 192 Wn.2d (2019); State v. Lloyd, 3 Wn.App. 2d 1060, 2018 WL 8642839 (Division One), (unpublished) http://......
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...precluded from challenging the sentencing aggravators in RCW 9.94A.535(3) on vagueness grounds. State v. Brush, 5 Wn. App. 2d 40, 59, 425 P.3d 545 (2018), review denied, 192 Wn.2d 1012, 432 P.3d 792 (2019). Santiago Santos recognizes Baldwin but argues that the decision does not constitute ......
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