No. 46996-7-I.The Court of Appeals of Washington, Division One.
Filed: April 30, 2001. DO NOT CITE. SEE RAP 10.4(h). UNPUBLISHED OPINION.
Appeal from Superior Court of Snohomish County, No. 001006904, Hon. Kenneth Cowsert, June 29, 2000, Judgment or order under review.
Counsel for Appellant(s), Nielsen Broman Associates Pllc, 810 Third Avenue, 320 Central Building, Seattle, WA 98104.
David B. Koch, Nielsen Broman Associates Pllc, 810 3rd Ave Ste 320, Seattle, WA 98104.
Counsel for Respondent(s), Seth A. Fine, Snohomish Co. Prosecutor’s Office, Snohomish Co Pros Office, 3000 Rockefeller, Everett, WA 98201.
George F. Appel II, Sno Cty Pros Atty M/S 504, 3000 Rockefeller Ave, Everett, WA 98201-4060.
PER CURIAM.
John Wilson appeals an exceptional sentence on one count of second degree assault of a child. Because the trial court properly based its exceptional sentence on the aggravating factors of abuse of trust and serious nature of the injuries, we affirm. After Wilson pled guilty to second degree assault of his seven-year-old son, the trial court imposed a sentence of 84 months, more than twice the 41 month sentence jointly recommended by the prosecution and the defense.
The judge relied for this sentence on the recommendation of the guardian ad litem and other letters and reports describing the devastating physical and psychological effects of Wilson’s repeated threats and attacks on the boy. Wilson appeals.
Our review of an exceptional sentence is governed by RCW 9.94A.210(4), which provides that to reverse an exceptional sentence, we must conclude that:
1) the reasons are not supported by the record; or
2) the reasons do not justify a sentence outside the standard range for that offense; or
3) the sentence is clearly excessive or too lenient.[1]
Wilson challenges his sentence under the first prong of appellate review. Whether a trial court’s findings are supported by the record is a factual inquiry that will not be disturbed on appeal unless the findings are clearly erroneous.[2]
Wilson argues that the quality of his son’s injuries do not support an exceptional sentence. To justify an exceptional sentence based on the seriousness of a victim’s injuries, the injuries must be of a different nature or more severe quality than those contemplated by the Legislature in defining the crime itself.[3] A court may also consider the effects on the victim if they are significantly more serious than would normally be encountered.[4] Wilson contends that his son’s injuries were no greater than as defined in the crime of second degree assault of a child, which encompass either:
1) Infliction of substantial bodily harm, which is injury involving temporary but substantial disfigurement, impairment of bodily function, or fracture; or
2) Bodily harm that is greater than transient physical pain or minor temporary marks, caused by a person engaging in a pattern of inflicting such harm or causing physical pain equivalent to torture.[5]
His claim fails. In State v. Wilson, we upheld an exceptional sentence for second degree assault of a woman where it was uncertain if injuries to her finger would fully recover and she suffered psychological trauma as a result of the sexually motivated attack. Likewise, in State v. Kidd,[6] the court affirmed an exceptional sentence for second degree assault where the victims suffered psychological trauma as a result of being shot with a gun at close range.
In this case, ample evidence showed that Wilson’s son suffered harm greater than `transient physical pain or minor temporary marks.’ The child’s injuries included bruised ribs and abdomen, bleeding from his ear, infection in both ears, and a perforated ear drum. The boy’s eyes were so swollen he could hardly see out of them. He had bruising around his face and `battle signs’ behind his ears. He was bruised and swollen over his entire scalp, most of his face and down his neck. He had a bruise so large it ran from hip to hip and covered all of his buttocks, penis, scrotum and pubic area. Two swollen figure eight shapes were tender to the touch in his groin area. He had lacerations on his foreskin, which was quite swollen and bled easily, a consequence of Wilson’s repeated pinching, poking, and twisting of the boy’s penis. But this was not all. Wilson repeatedly threatened his son with physical injury or death if he told anyone about the abuse. He told the boy that his friends at the police station would let him know if the boy tattled and he showed the child where he would bury him if he ever divulged his father’s conduct. The guardian ad litem reported that as a consequence of this extreme emotional and physical abuse, the seven-year-old is hyper-vigilant and has suffered devastating and permanent psychological damage.
The trial court did not err in considering the seriousness of the injuries as one factor in imposing Wilson’s exceptional sentence. Affirmed.