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Washington v. Parker

filed: May 28, 1996.

STATE OF WASHINGTON, RESPONDENT,
v.
LARRY D. PARKER, APPELLANT.



Superior Court County: Skagit. Superior Court Cause No: 92-1-00446-1. Date filed in Superior Court: February 18, 1994. Superior Court Judge Signing: Hon. George E. McIntosh.

Written by: Judge Agid, Concurred by: Judge Coleman, Judge Cox

Author: Agid

AGID, J. -- Larry Parker appeals his exceptional sentence for first degree rape of a child in violation of RCW 9A.44.073 and first degree child molestation in violation of RCW 9A.44.083. He contends the trial court miscalculated both the seriousness level of his crimes and his offender score by calculating his standard ranges based on statutory amendments to the Sentencing Reform Act (SRA) that became effective after the beginning of the charging period. He also argues that because it is not clear whether the jury relied upon incidents that occurred before or after the amendments became effective, he may have received a more severe sentence for his crimes than was authorized at the time he committed them. We hold that, where the trial court has not used the standard range as a basis for deciding the length of the exceptional sentence, the length is not excessive and the decision to impose an exceptional sentence is justified by the reasons

given, any error in calculating the standard range is harmless. As that was the case here, we affirm.

FACTS

On September 1, 1993, the State charged Parker with one count of first degree rape and two counts of first degree child molestation based on allegations of ongoing sexual abuse of three of D.W.'s children between 1987 and 1991. D.W. has four children: M, J, K and N. When D.W. met Parker in 1989, she and her children were living in a house in Skagit County. In the summer of 1989, they moved to a shelter in Mount Vernon for about a month and then moved to a house in Burlington. Parker spent the night at these places on a regular basis and often watched D.W.'s children for her. In July 1990, D.W. and her children moved into Parker's house outside of Sedro Woolley. They lived with him until May 1991. The State produced evidence at trial that Parker began sexually molesting M, J and K early in his relationship with their mother.

The first degree rape of a child charge involved M (count 1) and the first degree child molestation charges involved both K (count 2) and J (count 3). The trial court instructed the jury that to find Parker guilty of these crimes, it must find that he committed these acts between 1987 and 1991. The trial court gave a "multiple acts" instruction directing the jury that, to convict Parker, it did not need to "find all of the acts have been proven, but that it [was] necessary that the jury unanimously agree that the same underlying criminal act has been proved." The State did not elect which incidents it was relying on to prove the charges and argued to the jury that it could convict based on any of the incidents in the charging period. By general verdict, the jury found Parker guilty of counts 1 and 2. It did not reach a verdict on count 3.

At sentencing, the State presented a presentence investigation report (PSI) listing Parker's offender score as

3, the seriousness level of count 1 as 11 and the seriousness level of count 2 as 10. The PSI recited the standard ranges as 102-136 months for count I and 67-89 months for count 2. The community corrections officer who prepared the PSI recommended an exceptional sentence of 204 months for count 1 and 134 months for count 2, twice the bottom of the standard range for each offense, to be served concurrently. The State relied on the same standard range at sentencing. It asked the court to sentence Parker to the top of the standard range for each offense and to impose an exceptional sentence by running the terms consecutively, for a total of 225 months. The court sentenced Parker to 132 months for count 1 and 84 months for count 2 and imposed an exceptional sentence by ordering that the sentences run consecutively, for a total of 216 months. See RCW 9.94A.400 (consecutive sentences may only be imposed under the exceptional sentence provisions).

Discussion

The State charged Parker with ongoing acts of sexual abuse between 1987 and 1991. In 1990, the Legislature enacted several amendments to the SRA that increased the seriousness level of Parker's crimes and also increased his offender score. Those amendments became effective on July 1, 1990. Parker contends the trial court miscalculated both the seriousness level of his crime and his offender score because it improperly relied on the 1990 amendments even though the State introduced evidence of acts occurring before the effective date of the amendment upon which the jury could have based its verdict. He contends that ...


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