State v. Owens
| Decision Date | 10 May 1999 |
| Docket Number | No. 41758-4-I,41758-4-I |
| Citation | 95 Wn.App. 619,976 P.2d 656 |
| Parties | STATE of Washington, Respondent, v. Lawrence J. OWENS, Appellant. |
| Court | Washington Court of Appeals |
Gregory C. Link, Seattle, for Appellant.
Kristin Chandler, King County Pros. Atty., Seattle, for Respondent.
Lawrence Owens appeals the exceptional sentences imposed after he was convicted of unlawful possession of a firearm and two counts of second degree assault. He contends the findings supporting the sentences are clearly erroneous and legally insufficient. He also argues that the exceptional sentence statutes, as applied to his conduct, are unconstitutionally vague and his sentence violates the equal protection clause. We affirm the trial court's exceptional sentence based on an assault that was more egregious than typical, rejecting Owens' challenge to that sentence on vagueness grounds. We also reject Owens' other constitutional challenges, but vacate the exceptional sentence for the firearm offense because it was an element of the assault conviction.
Owens was convicted of second degree kidnapping in 1994. After his release from prison, he became Mary Rodenbaugh's roommate. A few weeks later, on December 7, 1994, they went to a friend's house in Spokane. Owens was drinking and made several unwanted sexual advances towards Ms. Rodenbaugh. He told her to "give it up," threatened to shoot her with heroin, and told her he would make her work as a prostitute. Enraged that she refused his advances, Owens punched Ms. Rodenbaugh in the nose, knocked her to the ground, and kicked her in the chest. Ms. Rodenbaugh bled heavily from her nose.
When she tried to leave the house, Owens blocked her path, pushed her backwards, and told her to "give it up." As he became more hostile and aggressive, Ms. Rodenbaugh was afraid he would attack her again. She pulled down her pants and told Owens to " 'go ahead and just get it over with so I can go home.' " He had intercourse with her then took her home.
When she arrived home, Ms. Rodenbaugh told her brother that she had been raped. She went to the hospital and learned that Owens had broken her nose. Owens was arrested and admitted having intercourse with Ms. Rodenbaugh after punching her in the nose.
Owens dated Linda Nelson briefly. On July 7, 1997, they had dinner at Owens' apartment with some of his friends. During the evening, Owens became angry with Ms. Nelson, insulted her, then left with one of his friends. Later that evening, he returned and continued to insult her. Owens punched Ms. Nelson in her face with a closed fist so hard that he knocked her to the ground. When Ms. Nelson stood up and tried to leave, Owens grabbed her by the hair and punched her in the eye, again knocking her to the ground. He then reached into a dresser drawer, took out a semi-automatic .40 caliber handgun, and held it to Ms. Nelson's head. With his other hand, he put a clip into the gun and said, " '[y]ou leave, I'm killing you.' " Ms. Nelson was terrified and lost control of her bowels. Soon afterwards, she was able to get to the front door of the apartment, opened the door and started screaming. As she called for help, she grasped the doorframe with her hand. Owens walked up, grabbed the door, and slammed it repeatedly on Ms. Nelson's hand. As she continued trying to escape, Owens punched her in the face repeatedly, knocking her to the ground several more times. When she was on the floor, Owens kicked her in her back.
Officers arrived, and Owens eventually let Ms. Nelson out of his apartment. When she came out, the officers saw she had a bleeding lip, a cut on her face, and broken blood vessels in her eye. While waiting for Owens to release Ms. Nelson, some of the officers heard a gun slide being operated. After they arrested Owens, they found the handgun, an empty gun case, and two boxes of .40 caliber ammunition.
The State charged Owens with four crimes: Count I - Assault in the Second Degree, Count II - Unlawful Imprisonment, Count III - Unlawful Possession of a Firearm in the First Degree, and Count IV - Assault in the Second Degree, Sexual Motivation. 1 1 Owens entered an Alford plea to all charges. 2 As part of the plea agreement, the State recommended a sentence within the standard sentence range of 70 months. At sentencing, the court reviewed the State's Certifications for Determination of Probable Cause and imposed an exceptional sentence: Count I - 105 months Count III - 112 months, Count IV - 105 months. 3 In imposing exceptional sentences for two of the counts arising from the Nelson incident, the court reasoned:
The Court finds as to Count I there are indeed substantial and compelling reasons to impose a sentence beyond the standard range ... First, the combined factors of this offense make this a more egregious case than the typical Assault in the Second Degree, and thus the factors that exist in this case were not necessarily considered in setting the standard range for this offense.
First, there were numerous assaults over and above the one that was charged. At least six assaults are noted in the Certification for Determination of Probable cause, in that the defendant first punched the victim in the face and knocked her to the ground, he grabbed her by the hair, he then punched her in the eye, it was at that point he committed the charged offense when he pointed a gun to her head. After that, when the victim sought to escape and had her hand on the door frame he slammed the door on her hand repeatedly. Following that he knocked her to the ground several more times while punching her in the face, and following that he kicked her in the back.
Further, these assaults occurred over an extended period of time, during which the victim was held against her will.
Further, these assaults had the effect of causing the victim to suffer extreme fear and anxiety well beyond that normally suffered by the victim of an Assault in the Second Degree, as reflected by the victim's loss of her bowel movement during the assault.
....
Further, the defendant's assaults had the egregious effect of causing the victim extreme humiliation ... and this effect is not accounted for in the standard range....
Owens argues that the record does not support the trial court's findings that the 1997 assault was more egregious than typical, the "clearly too lenient" aggravating factor of the Sentencing Reform Act (SRA) does not apply to him, and the exceptional sentence statutes are unconstitutionally vague as applied to his conduct. Because we conclude that the 1997 assault was more egregious than the typical assault and the statute is not unconstitutional, we affirm the exceptional sentence for this assault. 4
A trial court may impose an exceptional sentence for "substantial and compelling reasons." 5 Review of an exceptional sentence requires an appellate court to conduct a three-part analysis. First, does the record support the reasons given for an exceptional sentence? The court applies a "clearly erroneous" standard to this review. 6 Second, are the reasons for the sentence legally sufficient? We conduct this review de novo. Third, was the sentence clearly too excessive? 7 Because Owens does not allege that his sentence was excessive, we restrict our analysis to its factual and legal sufficiency.
The sentencing court entered the following written finding of fact on Count I:
[The] Court finds substantial/compelling reasons for [an] excep[tional] sent [ence] based on: 1) Combined factors in this case are more egregious that [sic] is necessary to commit Assault 2 - a) multiple assaults (punched, hair pulled, punched in eye, gun held to her, door slammed on hand, knocked down, kicked in back)[.] b) Assaults over period of time - victim suffered[.] c) Victim suffered extreme fear/anxiety - exemplified by victim losing bowel control....
As the facts set out above demonstrate, substantial evidence supports this finding.
Owens' primary complaint is that the sentencing court did not define a "typical assault." Therefore, he argues, it improperly found his assault on Ms. Nelson was more egregious than typical. But the trial court is not required to define "typical assault." Instead, we use a two-part analysis to determine the validity of an aggravating factor:
First, a trial court may not base an exceptional sentence on factors necessarily considered by the Legislature in establishing 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.[ 8
Under the second prong of this analysis, a "typical" offense is defined by the elements of the charged crime. 9
The State charged Owens with and had to prove that he committed a "typical" second-degree assault: an intentional assault using a deadly weapon. Substantial evidence supports the sentencing court's determination that Owens committed more than a "typical" second degree assault of Ms. Nelson because he did much more than hold a gun to her head. The abusive nature of Owens' assault, with its accompanying terror, distinguishes the crime from other assaults in the same category. When the Legislature established the standard sentence range for second degree assault with a deadly weapon, it did not contemplate that the crime also included serial beatings. These egregious circumstances are substantial and compelling reasons to distinguish this case from other assaults in the same category. 10 We affirm the trial court's finding that Owens' behavior was "more egregious than necessary" to commit the charged assault.
Owens also argues that the "clearly too lenient" aggravating factor does not apply to his 1997 assault. We agree.
The sentencing court found:
SRA multiple offense policy clearly too lenient in this case [sic]; multiple assaults which were...
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