David Murray appeals his exceptional sentence for three
counts of indecent exposure. His appeal presents two
questions. First, we must decide whether the sexual
motivation aggravator, RCW 9.94A.535(3)(f), can apply to the
crime of indecent exposure, RCW 9A.88.010. We hold that
because indecent exposure lacks an inherent sexual motive,
the sexual motivation aggravator may apply. Second, we must
decide whether the rapid recidivism aggravator, RCW
9.94A.535(3)(f), was void for vagueness as applied to Murray.
Because a reasonable person would not have to guess that
reoffending 16 days after being released from jail is
"shortly after, " we hold that the rapid recidivism
aggravator was not void for vagueness as applied to Murray.
Consequently, we affirm the Court of Appeals.
AND PROCEDURAL HISTORY
early 2015, Murray was released from King County jail.
Sixteen days after being released, Murray exposed his penis
in public to four different women on three separate
occasions, touching himself in two of the incidences. First,
Murray exposed his penis and masturbated in front of S.L. in
a retirement home where she worked. The next day, Murray
exposed his penis to C.Y. while alone in an elevator with
her. Four days later, Murray exposed his penis and
masturbated in front of L.S. while she was cutting K.N.'s
State charged Murray with three counts of indecent exposure.
Because of a previous conviction for indecent liberties,
Murray's three counts of indecent exposure were elevated
from a misdemeanor to a class C felony. RCW 9A.88.010(2)(c).
Additionally, the State alleged two aggravating factors: that
the offenses were sexually motivated and that the offenses
were committed shortly after Murray's release from jail
(i.e., rapid recidivism).
trial, the State presented the testimony of three previous
victims to whom Murray had exposed his penis; he had also
masturbated during two of these previous incidents. These
testimonies were used for the purpose of proving motive,
intent, and absence of mistake or accident. In response,
Murray presented a defense of diminished capacity. He called
an expert to testify that he lacked inhibitive control
because of a previous brain injury.
jury rejected Murray's defense and found Murray guilty on
all three counts of indecent exposure. The jury also found
that the sexual motivation and rapid recidivism aggravators
were proved beyond a reasonable doubt. As a result, the trial
court imposed an exceptional sentence of 36 months'
imprisonment. Murray appealed his conviction to Division One
of the Court of Appeals.
appeal, Murray challenged his exceptional sentence, arguing
that it was clearly excessive because of his brain injury. He
also argued that the sexual motivation aggravator and rapid
recidivism aggravator did not apply. Alternatively, he argued
that the rapid recidivism aggravator was void for vagueness
under the Fifth Amendment to the United States Constitution.
The Court of Appeals rejected all of these arguments and
affirmed Murray's conviction and sentence. State v.
Murray, No. 74422-4-1, slip op. at 1, 14 (Wash.Ct.App.
Mar. 6, 2017) (unpublished),
appealed the Court of Appeals decision to this court. We
granted review on two issues: (1) whether the sexual
motivation aggravator can apply to indecent exposure and (2)
whether the rapid recidivism aggravator is unconstitutionally
review matters of statutory interpretation de novo. State
v. Armendariz, 160 Wn.2d 106, 110, 156 P.3d 201 (2007).
We also review questions of constitutional law de novo.
State v. Rice, 174 Wn.2d 884, 892, 279 P.3d 849
decide two issues. First, we hold that the sexual motivation
aggravator can apply to indecent exposure because indecent
exposure does not inherently require a sexual motive. Second,
we hold that the rapid recidivism aggravator was not
unconstitutionally vague as applied to Murray because a
person of reasonable understanding would not have to guess
that reoffending 16 days after being released from jail
qualifies as "shortly after being released from
incarceration." RCW 9.94A.535(3)(t). As a result, we
affirm the Court of Appeals.
Does the indecent exposure aggravator inherently require
a sexual motive?
indecent exposure does not inherently require a sexual
motive, we hold that the sexual ...