[Copyrighted Material Omitted]
Appeal from Clark Superior Court. Docket No: 11-1-01678-1. Judgment or order under review. Date filed: 03/20/2013. Judge signing: Honorable Barbara D Johnson.
Jodi R. Backlund (of Backlund & Mistry ); and Oliver R. Davis (of Washington Appellate Project ), for appellants.
Anthony F. Golik, Prosecuting Attorney, and Anne M. Cruser, Deputy, for respondent.
Authored by Bradley A. Maxa. Concurring: Jill M Johanson, Lisa Sutton.
[185 Wn.App. 917] Maxa,
¶ 1 Jeffrey Weller and Sandra Weller appeal their multiple convictions for various degrees of assault and unlawful imprisonment, as well as their exceptional sentences. The convictions arose from their abuse of their 16-year-old twins, which included multiple beatings with a board and food deprivation. The Wellers argue that the trial court erred in failing to suppress the board that officers seized from the Wellers' garage and that their exceptional sentences are invalid
because their convictions could have been based on accomplice liability.
¶ 2 We hold that the trial court did not err in failing to suppress the board that officers seized from the Wellers' garage because the community caretaking function and plain view exceptions to the warrant requirement were applicable. We also hold that the deliberate cruelty aggravating factor was valid to support the trial court's exceptional sentence but the ongoing pattern of abuse aggravating factor was not. Because the record does not reveal whether the trial court would have imposed the same exceptional sentences based only on the deliberate cruelty aggravating factor, we must remand for resentencing. In the unpublished portion of this opinion we address and reject the Wellers' additional arguments regarding their convictions and sentences.
¶ 3 Accordingly, we affirm the Wellers' convictions, but we remand to the trial court for resentencing.
Report of Abuse
¶ 4 Sandra and Jeffrey Weller had six children in their care and under their custody: 16-year-old twins (CW, a boy, [185 Wn.App. 918] and CG, a girl) adopted by Sandra and her former husband, two of Jeffrey's biological children, one of Sandra's biological children, and one biological child of Sandra and Jeffrey together. In early October 2011, the twins left their therapist a note reporting abuse from their parents, stating that they were fearful and asking for help. The therapist made a mandatory report to Child Protective Services (CPS).
¶ 5 On October 7, CPS investigator Margie Dunn visited the Weller residence and, after interviewing Jeffrey and Sandra, assessed that CW and CG were unsafe. Dunn left the Weller residence for safety reasons and called in the assistance of the Vancouver Police Department.
¶ 6 Officers Jensen and Aldridge and four other officers arrived at the Weller residence to conduct a welfare check. The officers believed their purpose was to evaluate the Weller home environment and the twins' credibility to determine whether the children should be removed and placed into protective custody. One of the officers knocked on the front door and explained to Sandra that the purpose of their visit was to perform a welfare check on the children. The officers did not have a search warrant. Officer Aldridge asked if they could come inside and speak with Sandra and the children. Sandra stepped back from the door and the officers entered the house.
¶ 7 The officers attempted to talk privately with the twins. Officer Jensen and CW talked in one room. Officer Aldridge and CG talked in another room, and ultimately [185 Wn.App. 919] moved into the garage for greater privacy. Both children described being beaten repeatedly with a board.
Discovery of the Board
¶ 8 Both officers and the twins ultimately went together into the garage to talk. The only purpose in going to the garage was for privacy. CG and CW started to look around for the board, although not at the officers' direction.
¶ 9 Officer Aldridge was standing in the same place as when she entered the garage when she looked around and saw a board leaning against the garage wall in plain view. She asked the children if that was the board used to beat them, and they replied that it was. Officers Jensen and Aldridge both reported that the board was in a position where they could clearly see it from where they were standing. Officer Jensen picked up the board, and both officers observed the board
had a long groove in it as well as discoloration that appeared to be consistent with dried blood. Officer Aldridge estimated that at that time the officers had been at the Weller residence for 20 minutes, and she testified that they " had no idea that this was heading toward a criminal investigation." J. Weller Report of Proceedings (RP) (Jan. 31, 2013) at 185.
¶ 10 Based on her observations, Officer Aldridge decided to remove the twins and the other children from the Weller residence. After speaking with the children, the State filed multiple charges against the Wellers, including several charges of second, third, and fourth degree assault, and several counts of unlawful imprisonment. The record is unclear on whether each was charged as both a principal and an accomplice. For most of the charges, the State alleged that each defendant's conduct manifested deliberate cruelty to the victims and was part of an ongoing pattern of abuse.
[185 Wn.App. 920]Motion to Suppress the Board
¶ 11 The Wellers moved to suppress the board, arguing that it was seized during an unlawful search of their residence without a warrant. They argued that the emergency aid exception to the warrant requirement was inapplicable because there was no immediate threat of injury to any persons and that entry into the house was a pretext for a search for evidence of a crime. The State responded that the officers' warrantless entry into the Weller residence was justified both by Sandra's consent and by law enforcement's community caretaking function, and that the seizure of the board from the Weller garage was justified under the plain view doctrine.
¶ 12 At the suppression hearing, Jeffrey assumed that the emergency aid exception applied, but argued that at the time the board was found the officers were conducting a criminal investigation rather than a welfare check. Sandra also argued that law enforcement had begun a criminal investigation by the time the officers had spotted the board in the Weller garage. The trial court denied the motion to suppress, concluding in a detailed oral ruling that the officers lawfully were in the garage under the community caretaking exception and that they were authorized to seize the board because it was in plain view. The trial court did not enter written findings of fact or conclusions of law following the suppression hearing.
Convictions and Sentences
¶ 13 The case proceeded to a jury trial. The jury found Jeffrey guilty on most counts, and the trial court sentenced him for five counts of second degree assault, one count of unlawful imprisonment, one count of third degree assault of a child, and two counts of fourth degree assault. The jury [185 Wn.App. 921] also found Sandra guilty on most counts, and the trial court sentenced her for four counts of second degree assault and one count of unlawful imprisonment. For all of Jeffrey's and Sandra's convictions, the jury returned a special verdict form answering yes to the questions " Did the defendant's conduct during the commission of the crime manifest deliberate cruelty to the victim?" and " Was the crime part of an ongoing pattern of psychological or physical abuse of the victim manifested by multiple incidents over a prolonged period of time?" J. Weller Clerk's Papers (CP) at 151; S. Weller CP at 106.
¶ 14 The trial court imposed exceptional sentences of 240 months' confinement for both Sandra and Jeffrey. Both of the exceptional sentences were based on the jury's findings that the Wellers' conduct manifested deliberate cruelty to the ...