Appeal from Superior Court of King County. Docket No: 94-1-04619-1. Date filed: 04/17/95. Judge signing: Hon. Arthur E. Piehler.
Authored by Susan R. Agid. Concurring: Mary K. Becker, Ann L. Ellington.
The opinion of the court was delivered by: Agid
AGID, J. -- John H. Lewis was convicted of two counts of first degree rape and one count of first degree kidnapping. He appeals his 800-month exceptional sentence, arguing that the court erroneously found that he abused a position of trust and was deliberately cruel to his victim. He also contends that his sentence is clearly excessive and that the trial court miscalculated his offender score. While the trial court properly relied on the two aggravating factors, it erred in calculating Lewis' offender score. Because it is unclear whether he would have imposed the same sentence absent this error, we remand to the trial Judge.
In the summer of 1994, Dale Wheeler and his 12-year-old daughter, T.W., were living in a camper in the back yard of John Lewis' Sumner home. On July 21, Lewis and Wheeler had been drinking heavily. Sometime after midnight, Lewis came home and asked T.W. to help him fix the taillights on his truck. T.W. sat in the front of the truck and pushed on the gas and brake pedals, while Lewis was behind a camper attached to the truck to work on the lights. Lewis got into the front seat of the truck, told T.W. to move over, and drove a short distance to a parking lot and resumed work on the truck.
After a short time, Lewis asked T.W. to get a candle from the camper. He followed her into the camper and locked the back door. Once inside, Lewis told T.W. to take off her clothes. She protested and cried. When T.W. attempted to leave the camper, Lewis hit her over the head. Lewis then removed T.W.'s clothes and his own and raped her vaginally. T.W. told Lewis that he was hurting her, and he told her to "shut up." Lewis eventually stopped and put something in T.W.'s mouth which made it go numb and injected a substance into his arm. T.W. fell asleep and has no further memory of the events that night.
When she awoke the next morning, Lewis was still in the camper with her. He threw her clothes at her and told her to get dressed. He also told her that he was taking her home, but that he had to get gas first. T.W. remained in the back of the camper, and Lewis drove to a gas station in Sumner. After leaving the gas station, he drove the truck to another parking lot and returned to the camper. He again ordered her to take her pants off and lie down on the bed. Lewis then anally raped T.W. He left the back of the truck, making sure the doors were locked, and drove to a Bonney Lake store where he purchased a roll of duct tape. He took T.W. to Roegner Park in Auburn where he used the duct tape to cover her mouth and tape her hands, ankles, and knees together. Lewis left her there, telling her that he was going home but would be back.
After Lewis departed, T.W. was able to free herself by spitting around the tape covering her mouth until it fell off and chewing through the tape which bound her wrists. Lewis returned about three minutes later with a length of wire and tied T.W. to a tree so that she was laying face down on the ground. Lewis brought her a cup of water and untied her but said that he could not take her home because he did not want to "go back to prison."
He briefly brought her to a park in Lake Tapps because he wanted to find a place closer to home to restrain her but eventually returned to Roegner Park and again tied her to a tree. Lewis left her there, telling her that he would return in a few hours. T.W. again untied herself and ran to the road where she flagged down a passing car driven by Ronald Jorgansen. He took her to Auburn General Hospital after she told him she had been raped. Physicians at Auburn General examined T.W. and recovered semen from her vagina and rectum. They found a bump about the size of a robin's egg on her head and multiple abrasions on her trunk and extremities, especially around her wrists where she had been tied with wire.
Lewis was arrested the same day and charged with two counts of first degree rape and one count of first degree kidnapping. On January 18, 1995, a jury convicted him of all three counts. At his sentencing, the trial court imposed an 800-month exceptional sentence.
Lewis argues that his exceptional sentence must be reversed because the sentencing court erred in finding that he was deliberately cruel to his victim and that he abused a position of trust. The Sentencing Reform Act (SRA) states that, 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. RCW 9.94A.210(4). The trial court's reasons for imposing an exceptional sentence are questions of fact and will not be reversed unless they are clearly erroneous and not supported by substantial evidence. State v. Post, 118 Wash. 2d 596, 614, 826 P.2d 172, 837 P.2d 599 (1992); State v. Grewe, 117 Wash. 2d 211, 218, 813 P.2d 1238 (1991). Whether the sentencing court's findings support a sentence outside the standard range is a question of law. Post, 118 Wash. 2d at 614. The reasons must not take into account factors already considered by the Legislature in computing the ...