State v. Creekmore
| Decision Date | 06 November 1989 |
| Docket Number | No. 20493-9-I,20493-9-I |
| Citation | 55 Wn.App. 852,783 P.2d 1068 |
| Parties | STATE of Washington, Respondent, v. Darren C. CREEKMORE, Appellant. |
| Court | Washington Court of Appeals |
Eric Nielsen, Julie Kesler, Washington Appellate Defender, for Darren C. Creekmore.
Paul Stern, Ken Cowsert, S. Aaron Fine, Kevin M. Korsmo, Deputies, Everett, for State.
Darren Creekmore appeals his conviction of second degree felony murder, based on underlying felonies of second degree assault and second degree criminal mistreatment. Creekmore contends the felony murder rule should not apply to these felonies. He also argues that his 720-month sentence is "clearly excessive" under the Sentencing Reform Act of 1981 (SRA) and that it constitutes cruel and unusual punishment under the state and federal constitutions. We affirm.
Creekmore kicked his 3-year-old son Eli in the stomach on the evening of September 26, 1986. Eli's bowel ruptured, and he died several hours later. The fatal assault culminated a history of child abuse.
For example, on May 1, 1986, a day-care worker noticed extensive welts and bruises on the back of Eli's legs and buttocks.
A: He had welts all over the back of his legs, both legs, a bruise behind his right knee.... [H]e had welts all over both buttocks and bruises. He had a bruise on his left forehead, on the inside of his right arm, and on his left elbow.
. . . . .
They were narrow and went across both buttocks and ... both of the legs. They were red, and they had the white markings of breaking through the first layer of skin.
. . . . .
Another worker noticed these injuries as well as bruises around Eli's penis and along his testicles.
A: He had welts on his legs, and in his groin area it was bruised above his penis and along the sides of his penis and down along the testicles.
. . . . .
They were welts, ... and it looked like almost like a pinch where it was red on each side and white in the center.
. . . . .
It was all black and blue above his groin area, and on each side of his testicles there were big black and blue marks also, bruises.
. . . . .
I called CPS.
The workers asked Creekmore about Eli's injuries. Creekmore initially denied, but later he admitted inflicting them.
. . . . .
... [and] that he whipped him.
Creekmore said Eli "deserved" the injuries, because Eli "deliberately defied" him by messing his pants. Creekmore explained to a friend in grisly detail how the injuries occurred and why he used a yardstick.
Creekmore's wife, Mary, testified that whenever Eli messed his pants Creekmore would get angry. He would spank Eli and push him to the floor. He would then make Eli stand up and push him down again. He would also kick Eli in the buttocks. Mary was afraid to leave Creekmore because he had hit her in the past.
A week before Eli died, Creekmore made him eat a jalapeno pepper until Eli threw up. Creekmore hoped to "potty train" Eli in this way; he told Mary that when Eli pooped, it would burn him. Mary took Eli to a doctor who prescribed clear fluids and bland foods. Eli was ill for several days but he gradually got better. Mary suggested taking Eli to a doctor again, but Creekmore opposed the idea.
Mary explained the events of September 26, 1986, which led to Eli's death. Eli was eating dinner alone. Creekmore sat next to him, and Eli started to cry. Creekmore ordered Eli to go to his room, which Eli did, but he continued crying. Creekmore rushed into the bedroom. From the living room, Mary heard "a gasp and a thud." When Creekmore came out of the bedroom, Mary asked him what he had done. Creekmore said, "Nothing."
A few minutes later, Eli came out of his bedroom and told Mary he pooped his pants. Creekmore asked Eli, "Why did you poop your pants, boy?" Eli said, "Because you kicked me in the stomach." Creekmore yelled, "That's not true, and if you want me to make it true, I'll make it true." Creekmore then raised his foot as if to kick Eli. Creekmore was skilled in martial arts, and Mary knew this; she said, "No, don't kick him." Creekmore told her to go back into the living room, where she heard the rest.
Creekmore told Eli to wash his pants in the toilet. Eli said he peed his pants, and Creekmore said he was getting a belt. Mary tried to stop him, but he told her to stay out of it. She heard him whip Eli several times. "Eli was crying, and Darren was asking Eli if he wanted some more, and then he would hit him some more."
After a while, the noises stopped. Eli said he had to poop, so Creekmore told him to get on the toilet. Creekmore came out of the bathroom saying Eli fell in the toilet. He said Eli would stay there until he could get himself out. Mary tried to help Eli, but Creekmore would not let her.
Eventually, a friend arrived. Mary then went to free Eli. She found him in the toilet with his butt in the water and his arms and legs hanging over the rim. He looked weak and limp. Eli had vomited on himself, so Mary took him out of the toilet and cleaned him up. He had "stripes" across his bottom and a 2- by 3-inch red mark on the left side of his abdomen. Creekmore came into the bathroom, and Eli started to vomit some more. Mary told him they should take Eli to a doctor. Creekmore said, "No, he's just throwing up because he's mad." Mary testified that Eli never threw up when he was mad.
Hoping to keep Creekmore away from Eli, Mary put Eli to bed and suggested that she, Creekmore, and their friend play a board game. While they were playing, Eli was moaning and vomiting. Mary checked on him several times and cleaned him up. At one point, Creekmore looked at her as if to say, "you better stay away from him." Creekmore then went into Eli's bedroom and told him to shut up and go to sleep.
Mary went to bed at about 10:45 p.m. She could hear Eli moaning, but she felt it was hopeless to try to get him to a doctor because Creekmore would not allow it.
Creekmore's friend testified that Eli came into the living room while Mary was sleeping. Eli looked "really white," and "he couldn't walk very well." Creekmore's friend said Eli should go to a hospital, but Creekmore said he would take care of it. Creekmore put Eli on his lap momentarily. Eli was shaking and sniffling. Creekmore then told Eli to go back to bed.
Creekmore checked on Eli at about midnight. A few minutes later, Creekmore came out of Eli's room and said Eli was dead. Creekmore's friend told him how to administer CPR. He called an ambulance, woke up Mary, and returned to help Creekmore. Paramedics arrived promptly but Eli was not breathing, and he had no pulse. They tried without success to revive Eli.
Mary rode in the ambulance to the hospital. Creekmore's friend ran there, as it was only 2 1/2 blocks away. Creekmore arrived 15 minutes later. They were told that Eli was dead. They returned to the Creekmore house and went to bed. Mary was crying. Creekmore told her to shut up and to go to sleep.
An autopsy revealed a ruptured bowel caused by blunt trauma. The rupture caused an infection which led to septic shock and cardiac arrest. The force required to cause the rupture was more consistent with a kick than a punch.
One of Creekmore's friends testified that Creekmore had a powerful kick. Creekmore hurt this person in a sparring match and "whooped" three others "pretty good." Creekmore's friend recalled a time when Creekmore kicked him in the arm and drew blood. He said it takes "pretty good control" to break the skin without breaking the bone as well.
A person is guilty of second degree felony murder if he commits any felony (other than those supporting a conviction of first degree felony murder) and in the course and in furtherance thereof he causes the death of another. RCW 9A.32.050(1)(b). Criminal mistreatment and second degree assault are both felonies. RCW 9A.42.030(2); 9A.36.021(2). As such, they will support a charge of second degree felony murder.
Creekmore contends that felony murder based on criminal mistreatment is the same as manslaughter. Felony murder is a class A felony with a seriousness level of 12; manslaughter is a class B felony with a seriousness level of 9. RCW 9A.32.050(2), .060; 9.94A.310-.320. When the same conduct constitutes different crimes with different punishments, the result is a denial of equal protection. State v. Zornes, 78 Wash.2d 9, 475 P.2d 109 (1970); Olsen v. Delmore, 48 Wash.2d 545, 295 P.2d 324 (1956). However, no constitutional defect exists when the crimes have different elements, or when one is a lesser included offense of the other. State v. Wanrow, 91 Wash.2d 301, 312, 588 P.2d 1320 (1978). That is the case here. Any recklessly caused death establishes first-degree manslaughter, RCW 9A.32.060(1)(a), whereas felony murder by criminal mistreatment depends on three additional elements: (1) the defendant must be a parent or custodian of the victim; (2) the victim must be a child or dependent; and (3) the death must be caused by withholding a basic necessity of life--in this case, health care. RCW 9A.42.030(1); .010(1). Because the elements of the two crimes are different, there is no denial of equal protection. In re Taylor, 105 Wash.2d 67, 68-69, 711 P.2d 345 (1985); State v. Wanrow, supra.
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