Argued January 16, 2014.
Appeal from King County Superior Court. 10-1-08897-7. Honorable Mariane C. Spearman.
Oliver R. Davis (of Washington Appellate Project ), for petitioner.
Daniel T. Satterberg, Prosecuting Attorney, and Jeffrey C. Dernbach and James M. Whisman, Deputies, for respondent.
AUTHOR: Justice Steven C. González. WE CONCUR: Chief Justice Barbara A. Madsen, Justice Charles W. Johnson, Justice Susan Owens, Justice Mary E. Fairhurst, Justice James M. Johnson, Justice Debra L. Stephens, Justice Charles K. Wiggins, Justice Sheryl Gordon McCloud.
[180 Wn.2d 157] ¶ 1
Under RCW 9.94A.535(3)(h)(i), a court may impose an exceptional sentence for someone who has exhibited an ongoing pattern of domestic violence. Richard Sweat received such a sentence as part of his latest domestic violence conviction. He believes the trial court erred and argues that the catchall definition of " victim" in RCW 9.94A.030 must be used in interpreting RCW 9.94A.535(3)(h)(i), precluding the application of the aggravating factor when the pattern of abuse was not perpetrated against the victim or victims of the currently charged offense. We disagree and affirm.
¶ 2 Early on September 26, 2010, Sweat and Kellie Kenworthy, his girlfriend at the time, began to argue. During this argument, Sweat told Kenworthy that he would " 'smack her [180 Wn.2d 158] in the face if she didn't shut up.'" Clerk's Papers (CP) at 138. Shortly after, he followed through on this threat. Sweat hit Kenworthy in the face hard enough to cause significant swelling and a fracture of her left orbit.
¶ 3 Later that morning, Sweat and Kenworthy walked to a hospital. In the presence of Sweat, Kenworthy told a nurse she sustained the injury when she fell out of bed and hit her face on a dresser. Later, when Sweat was out of the room, the nurse asked Kenworthy whether she felt safe being with Sweat. Kenworthy broke down and said that she was not safe and the injury was a result of Sweat's abuse.
¶ 4 Ultimately, the King County Prosecutor's Office (KCPO) charged Sweat with assault in the second degree under RCW 9A.36.021(1)(a) and classified it as domestic violence under RCW 10.99.020(5). Given Sweat's history of domestic violence convictions, the KCPO also charged Sweat with a domestic violence aggravator under RCW 9.94A.535(3)(h)(i). Sweat opted to represent himself and waived trial by jury and his right not to testify.
¶ 5 At trial, Sweat argued that Kenworthy caused her own injury when she fell out of bed. The judge did not find Sweat's testimony credible and found Sweat guilty of second degree assault--domestic violence. She also found that there was an " ongoing pattern of psychological, physical or sexual abuse of multiple victims" under RCW 9.94A.535(3)(h)(i) justifying a deviation from a standard range sentence. CP at 144. Specifically, she found that Sweat's prior ...