No. 21106-1-IIIThe Court of Appeals of Washington, Division Three. Panel Seven.
Filed: October 30, 2003 UNPUBLISHED OPINION
Appeal from Superior Court of Walla Walla County Docket No: 95-1-00297-5 Judgment or order under review Date filed: 04/22/2002
Counsel for Appellant(s), Gail Lyn Siemers, Law Ofc of Gail Lyn Siemers Inc, 26 E Main St. Ste 4, Walla Walla, WA 99362-1957.
Ronald F Valentine (Appearing Pro Se), #915575, 1313 N. 13th Ave, Walla Walla, WA 99362.
Counsel for Respondent(s), James Lyle Nagle, Office of the Pros Attorney, 240 W Alder St. Ste 201, Walla Walla, WA 99362-2807.
KURTZ, J.
Ronald F. Valentine appeals his exceptional sentence arising out of his first degree child molestation conviction. He argues that the court erred in relying upon the violation of the child’s zone of privacy because that element must be considered part of the definition of molestation and, therefore, cannot be considered an aggravating factor. He also argues that no evidence existed supporting the second aggravating factor used by the court, finding that he abused a position of trust to commit the crime. Mr. Valentine’s exceptional sentence is supported by facts in the record. Accordingly, we affirm his sentence.
FACTS
Ronald F. Valentine was convicted of child molestation in the first degree for an act that occurred on September 3, 1995. Mr. Valentine had a relationship with the victim’s mother. At the time he committed the crime, Mr. Valentine was visiting and staying in the same apartment with the victim’s mother and the victim. The victim was 11 years old at the time.
During his trial, Mr. Valentine testified that his victim referred to him as “the only dad I have ever known.” Clerk’s Papers (CP) at 20. He also stated that he believed that his victim wanted him to be `like a dad’ to her. CP at 31.
Mr. Valentine was sentenced to life imprisonment without parole under the Three Strikes Initiative 593. He later submitted a personal restraint petition to this court, arguing that State v. Cruz, 139 Wn.2d 186, 985 P.2d 384 (1999) allowed one of his strikes to be omitted. This court granted the petition and ordered Mr. Cruz resentenced for this crime.
On remand, the court gave Mr. Valentine an exceptional sentence of 180 months, or 78 months over the maximum standard range sentence. The court entered findings of fact supporting the exceptional sentence. The court found that Mr. Valentine violated the victim’s zone of privacy by committing the criminal act in her own home.
The court also found that Mr. Valentine lived in the victim’s home and occupied a position of trust as a babysitter, guardian, or adult resident in charge of the care, custody, and control of the victim, and he used that position of trust to commit the crime.
Mr. Valentine appeals.
ANALYSIS
Mr. Valentine argues that the court erred by imposing an exceptional sentence. A sentencing court may impose an exceptional sentence outside the standard range if it finds substantial and compelling reasons to support it and enters written findings and conclusions to that effect. State v. Gore, 143 Wn.2d 288, 315, 21 P.3d 262 (2001) (citing former RCW 9.94A.120(2), (3) (1995)[1] . We will only reverse the sentencing court’s imposition of an exceptional sentence when (1) there is insufficient evidence in the record to support the imposition of the exceptional sentence under a clearly erroneous standard, (2) an exceptional sentence is not justified as a matter of law, or (3) an exceptional sentence is clearly excessive under an abuse of discretion standard. Gore, 143 Wn.2d at 315 (citing former RCW 9.94A.210(4) (1989)[2] .
Mr. Valentine argues that a zone of privacy is not a proper aggravating factor because the zone should be considered a part of the definition of molestation. First degree child molestation occurs when the perpetrator has sexual contact with another who is less than 12 years old and not married to the perpetrator, and the perpetrator is at least 36 months older than the victim. RCW 9A.44.083. Sexual contact is `any touching of the sexual or other intimate parts of a person done for the purpose of gratifying sexual desire of either party or a third party.’ RCW 9A.44.010(2).
The definition of the crime does not contain any elements related to the location of the molestation. Nor does Mr. Valentine provide any authority to support his argument that the nature of the crime involves violating the zone of privacy and, therefore, this cannot be considered an aggravating factor.
The undisputed evidence indicates that Mr. Valentine molested the victim in her home. Additionally, the victim submitted a letter to the court prior to sentencing. She indicated that the crime had altered her life. She stated that her grades and social life suffered as a result of the incident and soon she began getting into trouble and experimenting with drugs as a result of the molestation and stated that ‘[a]ll of my relationships have suffered because of this event. I find it hard to trust and care for men as well as relate to them as people.’ CP at 48. The letter from the victim further indicates that she has suffered significantly as a result of the abuse and she continues to suffer, even more than 7 years after the molestation. The commission of the criminal act in the victim’s home and the resultant continuing psychological trauma support the imposition of an exceptional sentence. See, e.g., State v. Collicott, 118 Wn.2d 649, 662, 827 P.2d 263 (1992) (zone of privacy); State v. Lough, 70 Wn. App. 302, 336, 853 P.2d 920 (1993) (zone of privacy), aff’d, 125 Wn.2d 847, 889 P.2d 487 (1995); State v. Falling, 50 Wn. App. 47, 747 P.2d 1119 (1987).
Mr. Valentine also argues that the record does not contain evidence to support the court’s conclusion that he created a position of trust, and that an adult does not necessarily take on the responsibility of a child just by being in the home of the child by invitation. An abuse of a position of trust is a valid aggravating factor to support an exceptional sentence in crimes relating to sexual assault. State v. Grewe, 117 Wn.2d 211, 217-18, 813 P.2d 1238 (1991) (indecent liberties and statutory rape).
The two relevant factors a sentencing court considers in determining whether a defendant violated a position of trust include the duration and degree of the relationship between the perpetrator and the victim. Id. at 218. “A relationship extending over a longer period of time, or one within the same household, would indicate a more significant trust relationship, such that the offender’s abuse of that relationship would be a more substantial reason for imposing an exceptional sentence.” Id. at 219 (quoting State v. Fisher, 108 Wn.2d 419, 427, 739 P.2d 683
(1987)).
In this case, the record indicates that Mr. Valentine had a romantic relationship with the child’s mother and stayed in the home for days at a time, on several occasions. The record also reveals that the child considered Mr. Valentine as a father figure. Additionally, Mr. Valentine testified that the child was left in his care, while the mother was away from the home. Contrary to Mr. Valentine’s assertions, he was not merely occasionally present in the home. The evidence indicates that he developed a relationship with the child that included trust. Thus, this evidence supports the court’s finding that Mr. Valentine abused his position of trust with the child in the commission of the crime.
The court did not err in imposing an exceptional sentence.
Affirm.
The majority of the panel has determined this opinion will not be printed in the Washington Appellate Reports, but it will be filed for public record pursuant to RCW 2.06.040.
KATO, A.C.J. and SCHULTHEIS, J., concur.