State v. O'Dell

• Decision Date: 13 August 2015
• Docket Number: No. 90337–9.,90337–9.
• Citation: 358 P.3d 359,183 Wash.2d 680
• Court: Washington Supreme Court
• Parties: STATE of Washington, Respondent, v. Sean Thompson O'DELL, Petitioner.

183 Wash.2d 680

358 P.3d 359

STATE of Washington, Respondent

v.Sean Thompson O'DELL, Petitioner.

No. 90337–9.

Supreme Court of Washington. En Banc.

Argued March 17, 2015.

Decided Aug. 13, 2015.

Gregory Charles Link, Washington Appellate Project, Seattle, WA, for Petitioner.

Island Co. Prosecuting Atty., Attorney at Law, Coupeville, WA, David Carman, Attorney at Law, Langley, WA, for Respondent.

Nicholas Broten Straley, Columbia Legal Services, Seattle, WA, amicus counsel for Black Prisoners Caucus.

Nicholas Broten Straley, Columbia Legal Services, Seattle, WA, amicus counsel for Columbia Legal Services.

Cindy Arends Elsberry, Washington Defender Association, Seattle, WA, amicus counsel for Washington Defender Association.

Nancy Lynn Talner, Attorney at Law, Lenell Rae Nussbaum, Attorney at Law, Seattle, WA, amicus counsel for ACLU.

George Yeannakis, Office of Public Defense, Olympia, WA, amicus counsel for Teamchild.

Robert S. Chang, Seattle University School of Law, Seattle, WA, amicus counsel for Fred T. Korematsu Center for Law & Equality.

Hickory Maimonides Gateless, Center For Children & Youth Justice, Seattle, WA, amicus counsel for Center for Children & Youth Justice.

Suzanne Lee Elliott, Attorney at Law, Seattle, WA, amicus counsel for Wash Assoc. of Criminal Defense Lawyers.

Opinion

GORDON McCLOUD, J.

¶ 1 Sean O'Dell was convicted of second degree rape of a child and given a standard range sentence of 95 months. O'Dell committed this offense 10 days after his 18th birthday.

¶ 2 O'Dell raises two issues in this appeal: one challenge to his conviction and one challenge to his sentence. With respect to the conviction, he argues that the trial court erred by refusing to instruct the jury on the affirmative defense of reasonable belief that the victim—here, a 12–year–old girl—was at least 14 years old or less than 36 months younger than O'Dell, based on the victim's declarations as to age. With respect to the sentence, he argues that the trial court abused its discretion when it refused to consider O'Dell's own relative youth as a basis to depart from the standard sentence range.

¶ 3 For the reasons given below, we reject O'Dell's challenge to his conviction but remand for a new sentencing hearing at which the trial court can consider whether youth diminished O'Dell's culpability for his offense.

FACTS

¶ 4 About 10 days after his 18th birthday, O'Dell had sex with 12–year–old A.N. According to A.N., the two met up on Sunday afternoon, along with a mutual friend, to drink wine and smoke cigars in the woods. Verbatim Report of Proceedings (VRP) (Jan. 16, 2013) at 254–59. A.N. testified that she, the friend, and O'Dell made plans to meet up again later that night but that the friend did not join them as planned. Id. at 268–75. She testified that she and O'Dell sat in the woods to wait for their friend and, after a few minutes of talking, O'Dell forcibly raped her.Id. at 280–87. A.N. also testified that she told O'Dell when they first met that she was 12 years old. Id. at 256–57.

¶ 5 O'Dell testified that he met A.N. at their mutual friend's house on Saturday night, where A.N. and others were drinking wine. VRP (Jan. 18, 2013) at 538. According to O'Dell, he commented that A.N. looked too young to be drinking and she responded, “ ‘I get that a lot.’ ” Id. at 542. He testified that A.N. wanted to go swimming at the beach, that she left the party with O'Dell to do this, and that the two had consensual sex on the walk to the beach. Id. at 544–48. He also testified that he first learned A.N.'s age when A.N.'s mother called him, the Monday after he had sex with A.N., and told him that her daughter was only 12. Id. at 572–74.

¶ 6 The State charged O'Dell with second degree rape of a child. With no objection from the State, the trial court instructed the jury that “[i]t is ... a defense to the charge of Rape of a Child in the Second Degree that at the time of the acts the defendant reasonably believed that [A.N.] ... was at least fourteen years of age, or was less than thirty-six months younger than the defendant based upon declarations as to age by [A.N.].” Clerk's Papers (CP) at 104. While deliberating, the jurors sent a question to the court regarding this instruction: “As to declarations as to age: Must it be verbal or can it be nonverbal?” VRP (Nov. 9, 2012) at 533. Ultimately, the jury was unable to reach a verdict and the court declared a mistrial. Id. at 542–43.

¶ 7 In the second trial, O'Dell again requested a jury instruction on the affirmative defense that he reasonably believed A.N. was “at least fourteen years of age, or was less then thirty-six months younger than the defendant, based upon declarations as to age by [A.N.].” CP at 79. This time the State objected. O'Dell argued that A.N.'s statement “I get that a lot” was an assertion that A.N. was older than she looked. VRP (Jan. 18, 2013) at 605–06; CP at 80–81. The trial court rejected that reasoning and denied the requested instruction. VRP (Jan. 18, 2013) at 607–08. The jury convicted O'Dell as charged. CP at 62.

¶ 8 At sentencing, the defense asked the court to impose an exceptional sentence below the standard range because “[t]he defendant's capacity to appreciate the wrongfulness of his conduct, or to conform his conduct to the requirements of the law, was significantly impaired by youth.” CP at 37. The defense argued that when O'Dell committed his offense, he “was still in high school, associating with school age persons” and “was not some mid-twenties man hanging out at the local high school or trolling the internet for young people.” Id. at 40. Counsel also pointed out that “[h]ad the incident happened two weeks prior, and assuming the State could not convince the Court to prosecute [O'Dell] as an adult, he would be facing 15–36 weeks in a well-guarded juvenile detention facility ... rather than 78–102 months in an adult prison.” CP at 39. Finally, the defense quoted portions of the United States Supreme Court's decision in Roper v. Simmons, 543 U.S. 551, 569–70, 125 S.Ct. 1183, 161 L.Ed.2d 1 (2005), which held that it is unconstitutional to impose the death penalty on a juvenile. CP at 38–39. Roper relied on research, by various medical and psychiatric associations, indicating that juveniles are more susceptible to negative influences and impulsive behavior and therefore less morally culpable for their crimes relative to adults. 543 U.S. at 570, 125 S.Ct. 1183.

¶ 9 The trial court acknowledged this argument but ruled that it could not consider age as a mitigating circumstance under the Court of Appeals' decision in State v. Ha'mim, 82 Wash.App. 139, 916 P.2d 971 (1996), aff'd, 132 Wash.2d 834, 940 P.2d 633 (1997) :

The other [mitigating factor] that is relied upon is (e), “The Defendant's capacity to apprec—appreciate the wrongfulness of his or her conduct or to conform his or her conduct to the requirements of the law was significantly impaired....”

So I—I've looked over, of course, this—this mitigating circumstance as well. And, really, I guess it comes down to the statement that Mr. O'Dell made, and that is, “I'm just a boy who made a mistake.”

....

So we're talking about his age. He's just a week past 18. Or he was not mature yet. Or whatever it is.

But then I looked up State v. Ha'mim, I think it is. H–A–hyphen–M–I–M. It is 82 Wash.App. 139, (1996). And that it talks about RCW 9.94A.390(1)(e), that factor I was saying, that capacity to appreciate the wrongfulness.

And it specifically says that “... a defendant's incapacity to appreciate the wrongfulness of the criminal conduct cannot be based on the youthfulness of the Defendant ... ” The particular judge in that case based it on that and was overturned.

So it is what it is.

VRP (Mar. 6, 2013) at 73–75 (emphasis added) (third and fourth alterations in original).

¶ 10 O'Dell appealed his conviction and sentence. State v. O'Dell, noted at 180 Wash.App. 1044, 2014 WL 1711548, at * 1. He argued that he was entitled to the jury instruction on the affirmative defense of reasonable belief and that the trial court should have considered his relative youth as a basis for an exceptional sentence below the standard range.

¶ 11 The Court of Appeals held that the trial court properly rejected the affirmative defense instruction because there was no evidence that A.N. made any declarations as to her age. 2014 WL 1711548, at *2. It also rejected O'Dell's challenge to his sentence. Id. at *3. First, the Court of Appeals concluded that this court's decision in Ha'mim, 132 Wash.2d 834, 940 P.2d 633, barred the trial court from considering youth as a basis for an exceptional downward departure under the Sentencing Reform Act of 1981 (SRA), chapter 9.94A RCW. 2014 WL 1711548, at *3. This court's decision in Ha'mim, like the Court of Appeals' decision that the trial court relied on at O'Dell's sentencing hearing, held that a young adult offender's age is not, in and of itself, a mitigating circumstance justifying an exceptional lowered sentence. Ha'mim, 132 Wash.2d at 846, 940 P.2d 633.

¶ 12 The Court of Appeals also rejected O'Dell's argument that Roper and recent research on adolescent brain development have abrogated Ha'mim:¹

Following the United States Supreme Court's decision in Roper v. Simmons, our legislature found that “adolescent brains, and thus adolescent intellectual and emotional capabilities, differ significantly from those of mature adults. It is appropriate to take these differences into consideration when sentencing juveniles tried as adults, ” and amended RCW 9.94A.540 prospectively. But this exception does not apply to O'Dell, who was an adult and not a juvenile tried as an adult.

O'Dell, 2014 WL 1711548, at *3 (footnotes omitted) (quoting Laws of 2005, ch. 437, § 1).

¶ 13 We granted review. State v. O'Dell, ––– Wash.2d ––––, 337 P.3d 327 (2014).

ANALYSIS

I. The Trial Court Properly Declined To Instruct the Jury on the Affirmative Defense That the Defendant Reasonably Believed That the Victim Was at Least Fourteen Years of...