Superior Court County: Snohomish. Superior Court Cause No: 94-1-00245-1. Date filed in Superior Court: 7-21-94. Superior Court Judge Signing: Ronald L. Castleberry.
Motion for Reconsideration Denied November 13, 1996, Petition for Review Denied April 2, 1997,
Written by: Agid, J. Concurred by: Kennedy, A.c.j., Concurred separately by: Ellington, J. Dissent by: Ellington, J.
The opinion of the court was delivered by: Agid
AGID, J. -- David Vaughn appeals his sentence for his convictions of first degree kidnapping and rape of a child, arguing that the court erred in imposing an exceptional sentence upward of 21 years. He also argues that the two convictions either violate double jeopardy, merge, or both and, therefore, he could be sentenced only for kidnapping. The State cross-appeals. If the exceptional sentence is vacated, it asks this court to rule that the kidnapping and rape did not encompass the same criminal conduct. *fn1 We hold that the trial court properly imposed an exceptional sentence that the convictions do not constitute double jeopardy, and that, even if the two charges merged, the merger would not affect the sentence. We therefore affirm the trial court and do not reach the State's cross-appeal.
Vaughn pled guilty to first degree kidnapping and rape of a child. The trial court found that Vaughn committed the two crimes against the same victim at the same time for the same objective purpose, i.e., to effectuate the rape, and concluded that they constituted the same criminal conduct. Because Vaughn's offender score was 0, the presumptive range for rape of a child was 78 to 102 months. Vaughn stipulated that the court could consider facts contained in the affidavit of probable cause for sentencing. The sentencing court also heard live testimony from C, Vaughn and others and considered the presentence investigation report (PSI), a stipulation about Vaughn's attempts to create an alibi and an evaluation by a sexual deviancy therapist. After Vaughn's counsel reviewed the State's proposed findings and Conclusions supporting the exceptional sentence, he submitted written objections, which the court also considered.
On February 10, 1994, at 4 p.m., Vaughn abducted 7-year-old C in Everett, drove her an hour away to a wooded area he had chosen for the crime, and raped her by inserting his fingers, tongue and penis into her vagina. C reported that the penile rape "hurt really bad and [that] he did it for a long time." C also reported that Vaughn made her touch his penis with her hands and put his penis in her mouth and described Vaughn ejaculating on her face. The defendant estimated he assaulted C for 45 to 50 minutes. After Vaughn completed his sexual assaults, he drove C to Woodinville, some distance from her home in Everett, and released her at 8 p.m. that night.
John Nolte, a Community Corrections Officer (CCO), prepared the PSI. Nolte testified that Vaughn had told him he had fantasized about having sex with a child for nearly 2 years while watching and reading pornographic material on his computer. He began planning to have sex with a child 11 months before the crime. During that time, he had visited C's neighborhood six times, where he had also lived at one time, watching children at playgrounds in the area. Vaughn told Nolte that, after he returned home from the assaults, he altered his computer to make it appear that he had been composing a letter on it while the assaults were going on. He deleted the pornographic material to hide it from police but backed it up so he would not lose the material. During the 18 years Nolte has been a CCO, he has investigated more than 100 sex offender cases. In the course of these investigations, Nolte has never met a perpetrator who had not fantasized about his or her crime prior to committing it. He testified that it was somewhat unusual for the fantasizing to continue as long as it had in Vaughn's case. Nolte attached an evaluation by a certified sex offender treatment provider, Dr. Douglas Allmon, which concluded that Vaughn was amenable to inpatient treatment at the Twin Rivers facility. The State conceded that there was no evidence of future dangerousness.
The court found that the facts justified an exceptional sentence based on the crimes' sophistication and planning and the number and different types of sexual contact Vaughn had with the victim, both because they involved multiple penetrations and because the variety of types of sexual contact reflected a level of cruelty and psychological and emotional violation significantly more egregious than that necessary to commit rape of a child. On July 19, 1994, the trial court entered the findings and Conclusions which are the subject of this appeal. It rejected two of the State's proposed grounds for an exceptional sentence, but found that the admitted multiple sexual acts and the defendant's sophistication and planning before and after the crime justified a sentence 2.5 times the top of the standard range.
Under the Sentencing Reform Act of 1981, a trial court must impose a sentence within the standard range unless it finds substantial and compelling reasons to justify a departure. RCW 9.94A.120(2); State v. Grewe, 117 Wash. 2d 211, 214, 813 P.2d 1238 (1991). RCW 9.94A.210(4), which governs appellate review of an exceptional sentence, provides:
To reverse a sentence which is outside the sentence range, the reviewing court must find: (a) Either that the reasons supplied by the sentencing Judge are not supported by the record which was before the Judge or that those reasons do not justify a sentence outside the standard range for that offense; or (b) that the sentence imposed was clearly excessive or clearly too lenient.
See also State v. Johnson, 124 Wash. 2d 57, 65-66, 873 P.2d 514 (1994).
Because the question whether a trial court's reasons for imposing an exceptional sentence are supported by the record is a factual determination, we will uphold those reasons so long as they are not clearly erroneous. State v. Nordby, 106 Wash. 2d 514 517-18, 723 P.2d 1117 (1986). Thus, we will reverse a trial court's finding that there is an aggravating factor only if substantial evidence does not support its Conclusion. State v. Scott, 72 Wash. App. 207, 213, 866 P.2d 1258 (1993) (citing Grewe, 117 Wash. 2d at 218), aff'd, 126 Wash. 2d 388, 894 P.2d 1308 (1995). On the other hand we independently determine as a matter of law whether the trial court's reasons justify imposing a sentence outside the presumptive range. Nordby, 106 Wash. 2d at 518. The reasons must be "substantial and compelling" and must take into account factors other than those which are necessarily considered in computing the presumptive range for the offense. Nordby, 106 Wash. 2d at 518; RCW 9.94A.120(2). A court cannot base an exceptional sentence on a factor that does not distinguish the defendant's behavior from that inherent in all crimes of that type. State v. Tierney, 74 Wash. App. 346, 354, 872 P.2d 1145 (1994), cert. denied, 130 L. Ed. 2d 1107, 115 S. Ct. 1149 (1995). We may uphold an exceptional sentence if we find any of the sentencing ...