No. 30601-8-II.The Court of Appeals of Washington, Division Two.
Filed: June 22, 2004. UNPUBLISHED OPINION
Appeal from Superior Court of Pierce County. Docket No. 02-1-01079-4. Judgment or order under review. Date filed: 06/27/2003. Judge signing: Hon. Katherine M. Stolz.
Counsel for Appellant(s), Rita Joan Griffith, Attorney at Law, 1305 NE 45th St. Ste 205, Seattle, WA 98105-4523.
Counsel for Respondent(s), Kathleen Proctor, Pierce County Prosecuting Atty Ofc, Rm 946, 930 Tacoma Ave S, Tacoma, WA 98402-2102.
HOUGHTON, J.
Frank Owens appeals his conviction of four counts of second degree incest, arguing that the evidence was insufficient to support more than three counts and that the trial court erred in imposing an exceptional sentence. We affirm.
Facts
On October 22, 2001, K.O. moved in with Owens, who is her biological father. K.O. was 22 years old at the time and mentally disabled. K.O. had been raised by her grandmother and had no real relationship with Owens. Her move into his home was prompted by her grandmother’s terminal illness and by her inability to find anyone else to take her in.
On November 2, 2001, social worker Susan Hoffman from Adult Protective Services went to Owens’s home on a routine referral to assess K.O.’s status. Hoffman noted that K.O. was `very childlike, appeared very vulnerable, a little bit lost, uncertain what was going to happen to her next’ and `unable to know what to do when anything out of the ordinary happens.’ Report of Proceedings (RP) at 11, 12-13. On December 20, Hoffman received a referral from another social worker concerning allegations K.O. had made about Owens. After talking to K.O., Hoffman contacted law enforcement.
On January 30, 2002, Owens met with two detectives from the Pierce County Sheriff’s Department. Owens said that during the two weeks K.O. stayed with him, they slept in the same bed. He admitted kissing K.O. on her mouth and breasts and touching her vagina. He said she had touched his penis a couple of times and that he might have asked her to masturbate him. He told the detectives he touched K.O. in a fatherly way and that she was mentally incompetent.
The State charged Owens by amended information with four counts of second degree incest. During the bench trial that followed, Hoffman testified to the facts cited above. Nancy Senn, who was a neighbor of K.O.’s grandmother, testified that K.O. stayed with Owens for more than a week, and that she took K.O. and Owens to visit K.O.’s grandmother almost every day.
K.O. testified that when she left her grandmother’s house and needed a place to stay, she spent the day with a neighbor. That evening, her neighbor told her she would need to stay elsewhere. K.O. thought of her sister, but did not know her phone number, so her neighbor took her to Owens’s house.
K.O. thought she stayed with Owens `[a]bout four days,’ although it could have been longer. RP at 24. She testified that on her first night with Owens, he unzipped his pants and asked her to touch and suck his penis. When she ignored him, Owens grabbed her by the neck and attempted to pull her head down toward his groin. K.O. refused and pulled away, but said she felt `like [she] had to’ on the second day. RP at 27. She said Owens sucked on her breasts when she was unclothed on two separate occasions or `almost every day’ or `every day,’ and that he touched her vagina once. RP at 28. She said she sucked on his penis on the second, third, and fourth days she stayed with him, and added that he kissed her on the mouth and that the touching happened after he undressed her every night.
Sergeant Keith Barnes, who took Owens’s statement, testified that Owens acknowledged kissing K.O. on the mouth and breast and touching her vagina. Owens also said he had K.O. hold his penis. Following Barnes’s testimony, the trial court admitted Owens’s taped statement and its transcript.
During his testimony, Owens denied undressing K.O. or seeing her unclothed. He admitted asking if she wanted to touch his penis, but he denied asking her to kiss or suck it. He testified that he kissed her breast once, over her shirt, and said he stopped his touching when she said `no.’ He also testified that K.O. stayed with him for two weeks after attempts to stay with her sister and mother did not work out. Owens knew of K.O.’s mental problems and described her as `not exactly normal.’ RP at 59.
The trial court found Owens guilty as charged and imposed an exceptional sentence of 120 months after running the 60-month sentences for the first two counts consecutively. The court entered the following findings of fact to support the exceptional sentence:
FINDINGS OF FACT I.
The defendant was found guilty of four counts of incest in the second degree at trial on May 13, 2003. The standard range sentence for the defendant is 60 months incarceration at the Department of Corrections.
II.
First, the aggravating factor of particular vulnerability of the victim is applicable to each of the four counts. The evidence of this aggravating factor is as follows:
(1) The victim, [K.O.], was raised by her paternal grandmother. In late October 2001, [K.O.’s] grandmother grew ill; ultimately, she passed away in early November 2001. [K.O.] contacted her mother and sister in hopes of staying with them at this time. However, neither [K.O.’s] mother nor her sister would take [K.O.] in to their homes in late October 2001. As a result, [K.O.’s] only option was to reside with her father, the defendant;
(2) [K.O.] suffered from significant mental disabilities. Adult Protective Services Social Worker Susan Hoffman described [K.O.’s] demeanor as `childlike, vulnerable, lost, and uncertain.’ Hoffman described [K.O.’s] mental abilities as `impaired and unable to cope.’ [K.O.] suffered a head injury at a very young age, causing her grandmother to keep her out of school during her youth. The defendant described [K.O.] as `mentally incompetent;’ and
(3) Defendant was aware of [K.O.’s] mental disabilities and the fact that she had no where else to stay when he took her in and sexually abused her in late October and early November, 2001. The legislature did not consider this factor in determining the standard range sentence.
Second, the aggravating factor of abuse of trust applies to each of the four counts in this case. The evidence supporting this aggravating factor consists of the fact that [K.O.], a mentally disabled person, had no place to go, other than to the defendant, when her grandmother (and care-provider) became ill in late October, 2001. [K.O.] lacked the intellectual skills and common sense to find a suitable alternative living arrangement. The defendant was [K.O.’s] biological father, and she had no choice but to trust him for her care. Under these circumstances, the defendant sexually abused [K.O.] for more than ten days. The legislature did not consider this factor in determining the standard range.
III.
Because of the presence of the above-referenced aggravating factors, and considering the purposes of the Sentencing Reform Act, sentencing within the standard range is not an appropriate sentence. This Court finds that 60 months per count, with count II running consecutively to count I, and counts III and IV running concurrently with count I, is an appropriate sentence. Clerk’s Papers (CP) at 54-56.
Owens now appeals his convictions and sentence.
Analysis I. Findings of Fact
Owens argues first that two of the court’s findings of fact in support of its guilty verdict are not supported by the record.
Following a bench trial, our review is limited to determining whether substantial evidence supports the trial court’s findings and, if so, whether the findings in turn support the conclusions of law. State v. Alvarez, 105 Wn. App. 215, 220, 19 P.3d 485 (2001). Substantial evidence exists where there is a sufficient quantity of evidence in the record to persuade a fair-minded, rational person of the truth of the finding. State v. Hill, 123 Wn.2d 641, 644, 870 P.2d 313 (1994).
Owens challenges the sufficiency of the evidence supporting Findings of Fact V and VI, which read in pertinent part as follows:
V.
[K.O.] has mental disabilities that impair her ability to live and act independently as an adult. She was in this same condition during October and November 2001.
[K.O.’s] mental abilities are childlike. [K.O.] suffered a head injury as a young child, and her grandmother kept her out of school. [K.O.] has been described by the defendant as `mentally incompetent.’ On January 30, 2002, defendant told Detective-Sergeant Barnes of the Pierce County Sheriff’s Department that [K.O.] had `been sheltered all her, all her life and she just doesn’t understand things.’ Susan Hoffman of Adult Protective Services testified that [K.O.’s] demeanor in November 2001 was `childlike, vulnerable, lost, and uncertain.’ Hoffman characterized [K.O.’s] mental abilities as `impaired and unable to cope.’
VI.
That during October 2001, Kimiyo Owens became gravely ill and could no longer care for [K.O.]. [K.O.] attempted to take shelter at a neighbor’s residence, but she was turned away. [K.O.] requested help from her mother and her sister; both persons declined to take [K.O.] into their home. [K.O.] had no other choice but to move in with the defendant at his apartment in Lakewood, Washington.
. . . .
Starting on the second night, and every night thereafter until [K.O.] moved out, defendant kissed and sucked [K.O.’s] breasts, made [K.O.] touch his penis with her hand and mouth, kissed [K.O.] on the mouth, and, on one occasion, touched [K.O.’s] vagina with his fingers.
CP at 59-60.
Owens alleges that Finding V improperly suggests that K.O. functioned below the 12-year-old level and that such a suggestion has no support in the record. This argument apparently is based on defense counsel’s assertion during sentencing that K.O. functioned at the 12-year-old level. There was no direct testimony regarding K.O.’s mental age. Rather, the witnesses described her mental capacity as set forth in the court’s finding. The court’s characterization of K.O.’s mental abilities as `childlike’ is supported by substantial evidence.
Owens argues that Finding VI erroneously states that K.O. had no choice but to go to her father’s house after her neighbor, mother, and sister turned her away. The record shows that on the night that K.O. went to her neighbor, the neighbor asked her to go elsewhere, and her sister and mother did not take her in. K.O. then thought of her father. Owens’s current assertion that there were other options available to K.O. when she went to her father’s home is not supported by the record.
Owens further contends that Finding VI errs in stating that he kissed and sucked K.O.’s breasts and made her touch his penis with her hands and mouth every night after the first night. K.O. testified that Owens sucked her breasts `every day,’ that he kissed her on the mouth every night, and that she sucked on his penis the second, third and fourth days. In Owens’s statement, he admitted that he had K.O. touch his penis more than once, that he kissed her on the mouth and breast, and that he touched her vagina. The finding at issue provides that `[s]tarting on the second night, and every night thereafter until [K.O.] moved out, defendant kissed and sucked [K.O.’s] breasts, made [K.O.] touch his penis with her hand and mouth, kissed [K.O.] on the mouth, and, on one occasion, touched [K.O.’s] vagina with his fingers.’ CP at 60. We find sufficient evidence to support every part of this finding except for the statement that Owens made K.O. touch his penis with her hand every night until she moved out. We do not find this deficiency material to Owens’s convictions of four counts of second degree incest, however, as the following discussion illustrates.[1]
II. Sufficiency of the Evidence
Owens argues further that the evidence was insufficient to support four counts of second degree incest.
Evidence is sufficient if, when viewed in the light most favorable to the prosecution, it permits a rational trier of fact to find each essential element of the crime beyond a reasonable doubt. State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992). Credibility determinations are for the trier of fact. State v. Camarillo, 115 Wn.2d 60, 71, 794 P.2d 850 (1990).
A person is guilty of second degree incest if he engages in sexual contact with a person whom he knows to be related to him. RCW 9A.64.020(2). Owens argues that K.O. unambiguously testified that she stayed with him for only four days and that nothing happened on the first night. He contends that the record thus supports only three incidents of incest and not four.
We read the record differently. K.O. was not unambiguous in her testimony regarding the length of her stay. She said she stayed `about four days’ and perhaps longer. Hoffman testified that before she went to see K.O. at Owens’s apartment on November 2, 2001, she learned K.O. had been there since October 22. Senn testified that she thought K.O. stayed with Owens for more than a week, and Owens told the detectives and testified that K.O. stayed with him for two weeks.[2] Owens implies that we can consider only evidence produced by the State in assessing the sufficiency of the evidence, but this is not so. On appeal, we examine sufficiency based on all of the evidence admitted at trial. State v. Jackson, 82 Wn. App. 594, 608-09, 918 P.2d 945 (1996), review denied, 131 Wn.2d 1006 (1997).
K.O. testified that during her stay, Owens sucked her breasts every day and touched her vagina once. She said she sucked on his penis on the second, third, and fourth days, and added that Owens kissed her on the mouth. She also testified that the touching happened after he undressed her every night. Owens admitted that the two slept in the same bed and told detectives that K.O. touched his penis a couple of times. He also told the detectives he kissed her breast and touched her vagina during the two-week period that she stayed with him. He denied most of this touching at trial, but the trial court found his testimony less than credible. The evidence is more than sufficient to support the trial court’s conclusion that Owens was guilty of four counts of second degree incest.
III. Exceptional Sentence
Owens next challenges the length of his exceptional sentence and the aggravating factors cited to support it.
A sentencing court may impose a sentence outside the standard range if it finds `substantial and compelling reasons justifying an exceptional sentence.’ RCW 9.94A.535. Upon review, we apply a clearly erroneous standard to determine whether the record supports the sentencing court’s reasons for the exceptional sentence. We then determine whether the sentencing court’s reasons justify the exceptional sentence as a matter of law. And finally, we apply an abuse of discretion standard to determine whether the sentence is clearly too lenient or too excessive. State v. Cardenas, 129 Wn.2d 1, 5-6, 914 P.2d 57 (1996). In reviewing the legal adequacy of an aggravating factor, we ask whether the legislature necessarily considered the factor in establishing the standard sentence range and whether the factor is sufficiently substantial and compelling to distinguish the crime in question from others in the same category. State v. Grewe, 117 Wn.2d 211, 215-16, 813 P.2d 1238 (1991).
Owens contends that his conduct consisted entirely of acts considered in setting the standard range sentence for second degree incest — sexual contact and a familial relationship — and that there was nothing to distinguish his conduct from that typically associated with the crime of incest. In analyzing this argument, we consider whether the record supports the aggravating factors of particular vulnerability and abuse of trust.
Particularly Vulnerable Victim
In exercising its discretion to impose an exceptional sentence, the trial court may consider that `[t]he defendant knew or should have known that the victim of the current offense was particularly vulnerable or incapable of resistance due to extreme youth, advanced age, disability, or ill health.’ RCW 9.94A.535(2)(b). When analyzing particular vulnerability, the focus is on the victim. State v. Bedker, 74 Wn. App. 87, 94, 871 P.2d 673, review denied, 125 Wn.2d 1004
(1994). The court determines if the victim is more vulnerable to the offense than other victims and if the defendant knew of that vulnerability. Bedker, 74 Wn. App. at 94. The vulnerability must be a substantial factor in the commission of the crime. State v. Gore, 143 Wn.2d 288, 318, 21 P.3d 262 (2001).
In the present context, vulnerability connotes some disability due to mental condition that renders the victim helpless, defenseless, or unable to resist. See State v. Wall, 46 Wn. App. 218, 222, 729 P.2d 656
(1986) (rejecting contention that high school students were particularly vulnerable). The record is replete with evidence that K.O. is mentally disabled and that Owens was aware of her disability when the improper contact occurred. Owens points out, however, that Division Three rejected the contention that a seven-year-old was particularly vulnerable and argues that K.O.’s mental capacity was at least that of a seven-year-old. See State v. Woody, 48 Wn. App. 772, 777, 742 P.2d 133
(1987),[3] review denied, 110 Wn.2d 1006 (1988). Even if this is true, this argument overlooks the fact that K.O. had been sheltered all of her life and was assessed as being `unable to know what to do when anything out of the ordinary happens.’ RP at 12-13. Although K.O. said she resisted Owens’s demands the first night that she stayed with him, she felt afterward that she had to acquiesce. The record shows that K.O.’s mental disability was a substantial factor in the commission of the crime and that her particular vulnerability distinguished Owens’s actions from typical acts of incest.
Abuse of Trust
Courts have found abuse of a position of trust to be a legally adequate factor in sexual offense cases. Grewe, 117 Wn.2d at 218; State v. Quigg, 72 Wn. App. 828, 842-43, 866 P.2d 655 (1994). In deciding whether the record supports this factor, the court considers the duration and the degree of the relationship, and whether the defendant used the position of trust to facilitate the crime. Grewe, 117 Wn.2d at 218; State v. P.B.T., 67 Wn. App. 292, 303, 834 P.2d 1051 (1992), review denied, 120 Wn.2d 1021 (1993).
Owens argues here that he did not use any position of trust to facilitate his crime and that he had no real father-daughter relationship with K.O. When the defendant is in a position that one would expect to engender trust, the length of the relationship is relatively unimportant. P.B.T., 67 Wn. App. at 303. In P.B.T., Division One held that a senior patrol leader occupied a position of trust when he molested a boy scout on the day the two met. 67 Wn. App. at 302-03. Because the defendant’s position was of a type where trust and respect would automatically be expected from the younger scouts, the length of the relationship was not significant. P.B.T., 67 Wn. App. at 303.
It would be expected that K.O. would trust her father even though she had not lived with him previously. That trust is shown by the fact that K.O. turned to him when her sister and mother could not take her in. The fact that a crime was committed while the trust relationship existed permits the inference that the defendant used the position of trust to facilitate the crime. P.B.T., 67 Wn. App. at 304-05. Owens knew K.O. had no other family member to turn to when she came to stay with him, and this factor strengthens the inference that he used his position of trust to facilitate the sexual contact. See P.B.T., 67 Wn. App. at 304 (direct evidence that the position of trust was relied on to commit the crime is unnecessary if there is evidence that could lead to a conclusion that the position of trust facilitated the crime). We find the aggravating factor of abuse of trust supported by the record, and we do not find this factor subsumed in the definition of second degree incest. See State v. Collins, 69 Wn. App. 110, 116, 847 P.2d 528 (1993) (incest case may present facts that would support abuse of trust as aggravating factor).
Excessive Sentence
The trial court imposed an exceptional sentence by running the 60-month sentences for counts I and II consecutively. See RCW 9.94A.589(1)(a) (consecutive sentences for current offenses may be imposed only under the exceptional sentencing provisions of RCW 9.94A.535). Owens argues that his 120-month sentence is excessive because it is twice the length of the statutory maximum sentence for the offense.
Second degree incest is a Class C felony punishable by up to five years or 60 months in prison. See RCW 9A.64.020(7); RCW 9A.20.021(1)(c). This offense has a seriousness level of five, and Owens had an offender score of nine. RCW 9.94A.515. The standard sentencing range for a `level five’ offense with an offender score of nine is 72-96 months. RCW 9.94A.510(1). If the standard range for an offense exceeds the statutory maximum sentence for the offense, the statutory maximum sentence shall be the presumptive sentence, unless the offender is a persistent offender. RCW 9.94A.510(4)(g).
Following these guidelines, the trial court found that the standard range for Owens’s offenses was 60 months. The Supreme Court rejected a rule that would limit exceptional sentences to no more than twice the presumptive sentence range. State v. Oxborrow, 106 Wn.2d 525, 531, 723 P.2d 1123 (1986). Here, the trial court imposed a 120-month sentence that was twice the presumptive range even though the State and the presentence report recommended an exceptional sentence of 240 months. The court’s sentence does not `shock the conscience’ and is not excessive. See State v. Ritchie, 126 Wn.2d 388, 395-96, 894 P.2d 1308 (1995). We therefore find no error in the giving or the duration of Owens’s exceptional sentence.
Affirmed.
A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.06.040, it is so ordered.
MORGAN, J. and QUINN-BRINTNALL, C.J., concur.