No. 48572-5-I.The Court of Appeals of Washington, Division One.
Filed: April 22, 2002. DO NOT CITE. SEE RAP 10.4(h). UNPUBLISHED OPINION.
Appeal from Superior Court of Snohomish County, No. 011004241, Hon. Gerald L. Knight, May 18, 2001, Judgment or order under review.
Counsel for Appellant(s), David B. Koch, Nielsen Broman Koch Pllc, 810 3rd Ave Ste 320, Seattle, WA 98104.
Catherine L. Floit, Attorney At Law, P.O. Box 25678, Seattle, WA 98125-1178.
Counsel for Respondent(s), Seth A. Fine, Snohomish Co. Prosecutor’s Office, Snohomish Co Pros Office, 3000 Rockefeller, Everett, WA 98201.
Charles F. Blackman, Snohomish County Prosecutors Office, 3000 Rockefeller Ave, Everett, WA 98201.
PER CURIAM.
Raymond Adams appeals his conviction for residential burglary, arguing that the trial court erred in denying his mid-trial motion for a continuance. Mr. Adams was given an opportunity to request a continuance prior to trial and insisted on proceeding on the scheduled trial date, even though he was advised that his attorney had not had time to interview or subpoena witnesses. The trial court did not abuse its discretion in denying Mr. Adams’ later motion. Nor did the trial court abuse its discretion in imposing an exceptional sentence, as the facts of this case present substantial and compelling reasons justifying an upward departure from the standard range. We therefore reject both of Mr. Adams’ contentions and affirm.
FACTS
The State charged Mr. Adams with residential burglary for an incident in which Mr. Adams gained entry into his ex-girlfriend Lisa Adams’ house by smashing open her sliding glass door, and then took a carton of cigarettes from her kitchen. Mr. Adams was arraigned on March 8, 2001, four days after the incident took place. His trial was scheduled for April 18, 2001.
On the date of trial, Mr. Adams’ attorney advised the court that his client wished to proceed to trial as scheduled even though little preparation had been done on the case. As Mr. Adams’ attorney explained, he had only received the case approximately two weeks before trial and, although he had been able to interview Ms. Adams, he had not yet had time to interview or subpoena two potential defense witnesses. Mr. Adams’ attorney told the court that he believed Mr. Adams was `fully advised as to what the testimony will be and what the consequences of possible conviction are.’[1]
The court then engaged in a lengthy colloquy with Mr. Adams about the advisability of proceeding to trial that day. Mr. Adams stated that he would prefer to go to trial as scheduled rather than have a continuance to potentially have the two defense witnesses present. He also stated that he understood that if he were convicted the State would be seeking an exceptional sentence.
During pretrial motions, while Mr. Adams was present, the prosecutor summarized the expected testimony for the court:
I believe the defense is going to be Mr. Adams was actually living at the house at the time, and I think [it] is relevant that Ms. Adams be able to explain to the jury why it is absolutely not true, because of the prior assaultive behavior and because of the drug usage on Mr. Adams’s part. Mr. Adams, my understanding, is going to claim he lived there. And I think that if it’s just going to be she’s saying no he didn’t, and he saying yes he did, she should be able to explain why it is she didn’t want him in the house so the jury can understand and give the proper weight to her statements.[2] Mr. Adams’ attorney also summarized what he expected the victim’s testimony to be:
The witness — the victim in an interview yesterday said Mr. Adams had visited her for most of the day about nine or ten times in the last several months before this incident. She denied that he’d ever stayed overnight, but he would get a ride to her home and then she would take him back to Seattle at night. So there’s evidence of an ongoing relationship here.[3]
After hearing these statements, Mr. Adams still did not seek a continuance. Trial therefore began that day.
Ms. Adams testified that she and Mr. Adams had met in November 1998.
They had a child together who suffers a stomach disorder called gastroparesis. As Ms. Adams explained, `most of her nutrition comes from I.V. pumps, so she’s on pumps about 16, 20 hours a day.’[4] Mr. and Ms. Adams began living together in Lynnwood, and later moved to South Seattle and then to California. The two separated after approximately a month in California, and both moved back to Washington. After moving to Everett in late 2000, Ms. Adams ran into Mr. Adams while at an AA meeting and the two began seeing each other intermittently. According to Ms. Adams, she and Mr. Adams had not lived together since November 2000. Mr. Adams was in inpatient treatment in December and when he had daylong passes, he would spend the day with Ms. Adams and their child. But Ms. Adams testified that Mr. Adams never spent the night at her home and did not have a key.
Regarding the incident in question, Ms. Adams’ testimony was somewhat contradictory, as had been her earlier statements to the police. Ms. Adams initially testified that she had been on a walk with a friend and upon returning home she saw that someone had broken her car’s front windshield and the front window of her house. She then changed her story and claimed that she was home that morning when Mr. Adams arrived and asked to come in.
Because she would not let him come in, he broke her windshield and threw a rock through her front window. Ms. Adams called the police, but did not tell them that Mr. Adams had caused the damage. She testified that she had been trying to cover for Mr. Adams at first.
Police came to Ms. Adams home and took a statement, and her neighbor brought over someone to fix the glass. Shortly after they left, Ms. Adams saw Mr. Adams standing by her window. Ms. Adams was frightened `[b]ecause he looks just crazy, and he’s asking me if I’m going to call the cops again, so I know he’s apt to do something else.’[5] Ms. Adams ran upstairs, grabbed her daughter, and called 911. While on the phone, Ms. Adams heard glass breaking downstairs. As she soon discovered, Mr. Adams had thrown a rock through the sliding glass door leading into Ms. Adams’ kitchen. Ms. Adams heard her neighbor drive up and ran outside with her child. Mr. Adams fled on foot. The police found him hiding under a tarp in a neighbor’s yard. When police approached, Mr. Adams yelled, `I got a gun, I got a gun. Shoot me.’[6] While police did not find a gun, they did find an opened carton of `Nise’ cigarettes with one pack missing. Later, Ms. Adams discovered that a carton of Nise cigarettes was missing from her kitchen.
After the State rested, the defense also rested without calling any witnesses. The court then recessed for the afternoon. The next morning, Mr. Adams addressed the court, stating, `Basically, Your Honor, I’m losing this case.’[7] He told the court that he now wanted to call witnesses to testify on his behalf. According to Mr. Adams, he had two witnesses who would testify that they had seen him at Ms. Adams’ house early in the morning and when Ms. Adams was not home. Mr. Adams felt this testimony would support his theory of the case; namely, that he lived with Ms. Adams, and therefore had permission to be in her home.
When questioned about his earlier desire to proceed without the witnesses, Mr. Adams said that he `wasn’t expecting Lisa to lie on the stand.’[8] The judge pointed out that Ms. Adams had testified as expected, and asked whether Mr. Adams expected her to testify to something other than what she had told the police. Mr. Adams responded, `Well, yeah, because she already changed her story once. I didn’t think she would lie on the stand.’[9] Mr. Adams agreed that he knew Ms. Adams’ position was that he had entered her home unlawfully, and that, in retrospect, he should have listened to his attorney’s advice and sought a continuance. The trial court denied the continuance, stating,
What I’m not going to do, sir, is grant your continuance. That is not fair to anybody. It’s not something that was unanticipated, that could not be foreseen. What I’m really hearing is you would like to have a continuance because things don’t look good to you, and that’s not a ground for a continuance.[10]
The trial court did allow the defense to reopen so that Mr. Adams could testify.
Mr. Adams claimed that he had been living with Ms. Adams until two nights before the incident in question when they had gotten into a fight and he had left to stay with a friend. He came over to Ms. Adams’ home on the afternoon of March 4, and she threatened to call the police because he had an outstanding warrant. Mr. Adams admitted that he was drunk and angry, and that he broke Ms. Adams’ windshield and front window. He then left and hid in a neighbor’s yard because he knew the police would be coming. Shortly after the police left, Mr. Adams came back to Ms. Adams’ home, whereupon he threw a rock through her slider door because he was `drunk’ and `irritated.’[11] Mr. Adams also admitted taking the cigarettes: `I knew that I was in trouble. I did go in there. I grabbed the cigarettes and I left.’[12] Although the cigarettes had been purchased after he left the house two days earlier, he claimed that the cigarettes belonged to him as well as Ms. Adams: `They were ours. Basically everything together was ours, you know.’[13] Mr. Adams denied that the fact that Ms. Adams had called the police on him earlier was an indication that he was not allowed in her house: `The cops had been called in our relationship before and, you know, that’s — unfortunately common.’[14] He also denied the prosecutor’s suggestion that he would not be welcome in the home given that he had broken Ms. Adams’ windshield and the front window of her house earlier that day: `No. We argued before. Things get thrown, you know what I mean. We argue and — you know, a lot of times. You know, nobody leaves.’[15]
The jury convicted Mr. Adams of residential burglary. Mr. Adams’ standard range was three to nine months. As promised, the State sought an exceptional sentence on the grounds that Mr. Adams had an extensive misdemeanor history, and that the crime was a domestic violence offense that had occurred in the presence of the Adams’ child. The sentencing court agreed that an exceptional sentence was warranted on both grounds. As to the latter, the judge stated:
What I can’t understand is, you know, why — you got a child that wasn’t given a very good break coming into this world. And I can see you perhaps doing this with your girlfriend or to your girlfriend. Why you would do it to your child, that if something happened, this isn’t a child that you just pick up and go from place to place. The child needs a lot of help, takes more than a few minutes to move the child from one position to another. Why you would do that to your own child is beyond me. . . . I am, sir, of the belief that the sentence is an appropriate sentence to declare an exceptional sentence, and I do, on two grounds. One, the fragile child was present. Not that it had an impact on the child, because the child probably is too young to know that it was her father that did this and what’s going on, but the potential that it would have an impact. . . . [T]his is your child and you knew it was there and you don’t give a darn. So I think that’s a legitimate ground for an exceptional sentence.[16] The trial court imposed a sentence of fifteen months in prison. The court did not explicitly state that it would have imposed the same sentence if only one of the two grounds for an exceptional sentence existed.
DECISION
Mr. Adams’ first argues that the trial court erred in denying his mid-trial motion for a continuance. We review a trial court’s denial of a continuance for an abuse of discretion. State v. Hurd, 127 Wn.2d 592, 594, 902 P.2d 651 (1995). In exercising its discretion, the trial court may consider various factors including diligence, due process, the need for an orderly procedure, the possible effect on the trial, and whether prior continuances were granted. City of Tacoma v. Bishop, 82 Wn. App. 850, 861, 920 P.2d 214 (1996). Here, Mr. Adams clearly failed to exercise due diligence by waiting until midway through the trial to seek a continuance. Ms. Adams testified as both the prosecutor and defense counsel expected she would. The fact that Mr. Adams apparently believed that she would change her testimony at trial did not require the court to grant his untimely motion to continue. Mr. Adams was give ample opportunity to seek a continuance before trial. As the trial court noted, the fact that things did not look good for Mr. Adams is not a basis for a continuance.
Moreover, granting a continuance would not have had an effect on the outcome of the trial. The sole stated basis for the motion to continue was to call two witnesses who, at best, would have testified that Mr. Adams sometimes spent the night at Ms. Adams’ house, which may have corroborated Mr. Adams’ claim that he lived in the house. But Mr. Adams’ own testimony was that he had a fight with Ms. Adams two days earlier and moved out.
When he came to the house the first time on March 4, Ms. Adams threatened to call the police, which made him so angry that he broke Ms. Adams’ windshield and the window of her house. The notion that Mr. Adams nonetheless believed that he was privileged to enter, even after Ms. Adams followed through on her threat to call the police, after he later appeared in her window asking if she would call the police again, after she ran terrified up the stairs to call the police a second time, and after he threw a rock through her sliding glass door, defies logic. The trial court did not abuse its discretion in denying Mr. Adams’ mid-trial motion to continue. Mr. Adams’ conviction is affirmed.
Mr. Adams next argues that the trial court erred in imposing an exceptional sentence. Mr. Adams does not contend that his misdemeanor convictions do not justify an exceptional sentence, or that his crime was not a domestic violence offense. His sole contention is that the trial court erred as a matter of law by imposing an exceptional sentence based on the presence of Ms. Adams’ fragile child. Former RCW 9.94A.390(2)(h), recodified as RCW 9.94A.535(2)(h) by Laws, 2001, ch. 10, § 6, specifically provides that the court may impose an exceptional sentence upwards if the crime was a domestic violence offense that occurred within sight or sound of the victim’s or the offender’s minor children. Here, the record reflects that the crime occurred while Mr. and Ms. Adams’ minor child was upstairs. The crime therefore occurred outside the sight of the child, and the record is silent as to whether the crime occurred within the child’s earshot.
While the trial court found that the fragile child was `present,’ the court did not enter a finding that the offense occurred within `sight or sound’ of the child. Applied in its strictest sense, this statute therefore may not apply. But even assuming for the sake of argument that the statute does not apply, the trial court did not err in imposing an exceptional sentence under these circumstances. The factors listed in former RCW 9.94A.390 are merely illustrative and are not intended to be exclusive reasons for exceptional sentences. Rather, a trial court may impose an exceptional sentence for `substantial and compelling reasons.’ Former RCW 9.94A.120(2), recodified as RCW 9.94A.505 by Laws, 2001, ch. 10, § 6. An exceptional sentence is appropriate when the circumstances of a particular crime distinguish it from other crimes within the same statutory definition. State v. Fisher, 108 Wn.2d 419, 424, 739 P.2d 683
(1987), citing David Boerner, Sentencing in Washington § 9.6 (1985).
Prior to the enactment of former RCW 9.94A.390(2)(h), this court held that the psychological trauma suffered by a victim based on her child’s presence formed a valid basis for imposition of an exceptional sentence. State v. Tuitoelau, 64 Wn. App. 65, 822 P.2d 1222 (1992). Washington courts have also upheld exceptional sentences when the crime had an adverse effect on the child. See, e.g., State v. Barnes, 58 Wn. App. 465, 475, 794 P.2d 52 (1990), affirmed in part, reversed in part, 177 Wn.2d 701 (1991). Contrary to Mr. Adams’ contention on appeal, the record does demonstrate that Ms. Adams and her daughter were traumatized. As neighbor Greg Brindle testified, both Ms. Adams and her daughter were `scared’ and `agitated’ as they fled from the house.[17]
The facts on which the trial court relied in imposing an exceptional sentence clearly distinguish this crime from other residential burglaries.
Mr. Adams knew that his daughter had a serious medical condition that required her to be hooked up to tubes and I.V.’s. After the police were already called to the home once that day, Mr. Adams threw a rock through Ms. Adams’ sliding glass door and entered her residence. This created a risk of harm to the child, as Ms. Adams was so frightened that she had to quickly gather up her ill child and leave the residence. The facts of this case present substantial and compelling reasons justifying a departure from the standard range, and the trial court did not abuse its discretion in imposing an exceptional sentence.
Affirmed.