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State v. Brown

December 16, 1996

STATE OF WASHINGTON, RESPONDENT,
v.
EDWARD BROWN, APPELLANT.



Appeal from Superior Court of Snohomish County. Docket No: 95-1-00012-1. Date filed: 04/24/95. Judge signing: Hon. James H. Allendoerfer.

PER CURIAM. Edward Brown pleaded guilty to 1 count of second degree assault. The sentencing court imposed an exceptional sentence of 96 months, based primarily on the 23-month-old victim's particular vulnerability and on Brown's abuse of a position of trust. On appeal, Brown contends that the record fails to support the sentencing court's reasons, that the reasons did not justify an exceptional sentence, and that the sentence was clearly excessive. We disagree and affirm.

Brown was initially charged with 1 count of assault of a child in the second degree. RCW 9A.36.130. He subsequently entered a plea of guilty to 1 count of second degree assault. RCW 9A.36.021(1)(a). Based on Brown's criminal history, the standard range for the offense was 42 to 57 months, and the State recommended that Brown be sentenced to 57 months. As part of the agreement, Brown stipulated that the court could consider the information contained in the affidavit of probable cause "as real and material facts" for purposes of sentencing.

According to the affidavit of probable cause, appellant Brown was left in charge of his daughter B.S. on the evening of December 28, 1994.

Jennifer S., the girl's mother, had gone to the hospital at about 6:45 p.m. to have her injured foot examined. B.S., who was 23 months old, was in the bathtub when Jennifer left. Jennifer later telephoned Brown from the hospital, and he told her that she needed to return home as soon as possible, but would not say why.

When Jennifer returned home at about 7:30 or 8:00 p.m., B.S. was asleep and Jennifer did not see her. Jennifer visited with several acquaintances during the course of the evening and did not get up until 2:00 p.m. the following day. When she checked on B.S., Jennifer found that her face was "all black and blue and scratched and swollen." According to the affidavit of probable cause, B.S. was admitted to the hospital with her face badly bruised on both sides, blood in her right ear, both ears badly bruised, small lacerations to her cheeks, and a blood-filled raised welt on her bottom about seven inches long. Photos taken of [B.S.] on December 29, 1994, also show long parallel scratches on her back and buttocks.

Brown told police that he had taken B.S. out of the bathtub and then dried and diapered her. The next thing he knew, he was standing with his back to the door and B.S. was lying on the floor with a "hollow look." Her face was "swollen and red and had a cut on her cheek. She looked hurt."

After describing B.S.'s injuries, Brown told police, "I know I did wrong."

Brown, a methamphetamine user, claimed that he had suffered from blackouts in the previous months.

At the sentencing hearing, both the investigating officer and B.S.'s guardian ad litem were permitted to address the court in support of an exceptional sentence. Counsel for Brown objected to the extent that the remarks included information that was not contained in either the probable cause affidavit or the presentence investigation report (PSI).

The court found that the circumstances justified an exceptional sentence and subsequently entered the following findings:

[1] The defendant knew the victim was particularly vulnerable due to her extreme youth (23 months).

[2] The defendant used his position of trust and confidence to facilitate the commission of this assault.

[3] These factors, plus the extreme violence and extreme injury inflicted upon the victim make this assault 2 significantly more ...


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