State v. Grewe

• Decision Date: 01 August 1991
• Docket Number: No. 57812-5,57812-5
• Court: Washington Supreme Court
• Parties: The STATE of Washington, Petitioner, v. Charles Steven GREWE, Respondent.

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117 Wn.2d 211 813 P.2d 1238 The STATE of Washington, Petitioner,
v.
Charles Steven GREWE, Respondent. No. 57812-5. Supreme Court of Washington,
En Banc. Aug. 1, 1991.

[813 P.2d 1239]

Page 213

Seth Dawson, Snohomish County Prosecutor and Seth Aaron Fine, Deputy County Prosecutor, Snohomish County Prosecutors Office, Everett, for petitioner.

Washington Appellate Defenders Ass'n, Eric G. Broman, Seattle, for respondent.

DOLLIVER, Justice.

Defendant, Charles S. Grewe, has been convicted of two counts of indecent liberties and one count of attempted first degree statutory rape. The trial court concluded defendant used a position of trust to commit the crimes and a sentence within the standard range would clearly be too lenient. Based on these aggravating factors, the trial court imposed an exceptional sentence of 60 months on each count to be served concurrently. This appeal focuses exclusively on the propriety of the exceptional sentences.

When defendant committed the acts leading to the indecent liberties convictions, he was employed as a school bus driver for Silver Lake Elementary School. Both instances of indecent liberties occurred when the victims were either waiting for or riding on defendant's school bus. The indecent liberties victims were both age 11 at the time of the incidents.

The attempted statutory rape victim was an 8-year-old girl who lived next door to defendant. The victim and

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other neighborhood children often went to defendant's house to play with his piano and computer. On one occasion when the victim was alone in the house with defendant, he placed his hand inside the victim's pants and attempted to put his finger into her vagina. The victim hit defendant in the face and ran away.

The Court of Appeals found the trial court improperly considered uncharged incidents in imposing the exceptional sentences and vacated the sentences and remanded defendant for resentencing. State v. Grewe, 59 Wash.App. 141, 796 P.2d 438 (1990). The State does not challenge this conclusion. The State does challenge the Court of Appeals' conclusion that abuse of a position of trust may not properly be considered as an aggravating factor for the indecent liberties convictions because it was already taken into consideration in establishing the standard sentence range. Grewe, 59 Wash.App. at 150, 796 P.2d 438. Defendant challenges the Court of Appeals' conclusion that with respect to the statutory rape conviction abuse of a position of trust was supported by the evidence. Grewe, 59 Wash.App. at 148, 796 P.2d 438.

Under the Sentencing Reform Act of 1981 (SRA), a trial court must impose a sentence within the standard range unless it finds substantial and compelling reasons to justify a departure. RCW 9.94A.120(2), (3); State v. Pryor, 115 Wash.2d 445, 450, 799 P.2d 244 (1990). Appellate review of an exceptional sentence involves a 3-step process: (1) are the trial court's reasons supported by the record, (2) do the stated reasons justify an exceptional sentence as a matter of law, and (3) did the trial court abuse its discretion by imposing a sentence that is "clearly excessive" or "clearly too lenient"? State v. Nordby, 106 Wash.2d 514, 517-18, 723 P.2d 1117 (1986); State v. Oxborrow, 106 Wash.2d 525, 529-30, 723 P.2d 1123 (1986). Either the defendant or the State may appeal an exceptional [813 P.2d 1240] sentence. RCW 9.94A.210(2). The State's

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challenge with respect to the indecent liberties sentences focuses on step 2. Defendant's challenge with respect to the statutory rape sentence focuses on step 1.

1. Indecent Liberties and Abuse of a Position of Trust

Defendant was convicted of indecent liberties under former RCW 9A.44.100(1), which provided four distinct means by which a person could commit the crime:

(a) By forcible compulsion; or

(b) When the other person is less than fourteen years of age; or

(c) When the other person is less than sixteen years of age and the perpetrator is more than forty-eight months older than the person and is in a position of authority over the person; or

(d) When the other person is incapable of consent by reason of being mentally defective, mentally incapacitated, or physically helpless.

(Italics ours.) Defendant was charged and convicted under former RCW 9A.44.100(1)(b). Nevertheless, the Court of Appeals concluded abuse of a position of trust was not an appropriate aggravating factor for sentencing. The Court of Appeals looked to former RCW 9A.44.100(1)(c), which did expressly require a position of authority, and concluded the Legislature had already considered the abuse of a position of trust when establishing the standard sentence range for the indecent liberties statute as a whole. Grewe, 59 Wash.App. at 149, 796 P.2d 438.

The Court of Appeals' ruling addresses the legal adequacy of the asserted aggravating factor. We review such a determination using a "matter of law" standard. State v. Dunaway, 109 Wash.2d 207, 218, 743 P.2d 1237, 749 P.2d 160 (1987).

In our review as to the legal adequacy of an aggravating factor, we employ a 2-part analysis. First, a trial court may not base an exceptional sentence on factors necessarily considered by the Legislature in establishing

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the standard sentence range. Second, the asserted aggravating factor must be sufficiently substantial and compelling to distinguish the crime in question from others in the same category. Dunaway, 109 Wash.2d at 218-19, 743 P.2d 1237; Nordby, 106 Wash.2d at 518, 723 P.2d 1117; State v. Dunivan, 57 Wash.App. 332, 337, 788 P.2d 576 (1990).

Defendant does not challenge the existence of a position of trust, nor that an abuse of a position of trust may be a proper aggravating factor in some situations. See State v. Oxborrow, 106 Wash.2d at 529, 723 P.2d 1123 (theft by deception); State v. Creekmore, 55 Wash.App. 852, 862, 783 P.2d 1068 (1989) (felony murder); State v. Strauss, 54 Wash.App. 408, 420-21, 773 P.2d 898 (1989) (rape). Abuse of a position of trust has been expressly extended to apply to sexual offense cases. Pryor, 115 Wash.2d at 451, 799 P.2d 244; State v. Harp, 43 Wash.App. 340, 343, 717 P.2d 282 (1986). Nevertheless, defendant argues abuse of a position of trust is not an appropriate aggravating factor for an indecent liberties conviction because one of the four alternative methods of committing the crime includes a position of authority as an element.

The essential question here is whether, in setting the standard sentencing range for indecent liberties, the Legislature considered the alternative forms of the crime individually or collectively. Defendant argues that because the Legislature established the same seriousness level for alternative...