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State v. Butterfield

Court of Appeals of Washington, Division 2

August 27, 2019

STATE OF WASHINGTON, Respondent,
v.
JEFFREY L. BUTTERFIELD, Appellant.

          Melnick, P.J.

         Jeffrey Butterfield appeals his eight convictions for two counts each of rape of a child in the first degree, rape of a child in the second degree, rape of a child in the third degree, and incest in the first degree. The crimes relate to the sexual abuse of Butterfield's twin daughters, AB1 and AB2, over the course of their childhood.

         In the published portion of this opinion, we address Butterfield's argument that the trial court erred in imposing an exceptional sentence. We agree that the court imposed a sentence unauthorized by the jury's findings. In the unpublished portion of this opinion, we address Butterfield's other arguments, in which he contends that he received ineffective assistance of counsel and that the trial court imposed unauthorized legal financial obligations (LFOs).

         We reverse Butterfield's exceptional sentence and remand for resentencing. We otherwise affirm.

         FACTS

         Born in 1989, AB1 and AB2 are twins. Butterfield, their biological father, sexually abused them from the time they were four or five years old until they were sixteen years old.

         The State charged Butterfield with two counts each of rape of a child in the first degree, rape of a child in the second degree, rape of a child in the third degree, and incest in the first degree. For each of the four crimes, one count related to AB1 and one count related to AB2.

         For each count, the State alleged an aggravating factor in the information that the "offense was part of an ongoing pattern of psychological, physical, or sexual abuse of the same victim manifested by multiple incidents over a prolonged period of time and [that it would] ask for an exceptional sentence outside the standard range upon [Butterfield's] conviction." Clerk's Papers (CP) at 64-68. The State cited RCW 9.94A.535(i); however, the language followed RCW 9.94A.535(3)(h)(i)[1] but omitted that the offense involved domestic violence or stalking.

         Butterfield pled not guilty, and the case proceeded to trial. At the conclusion of trial, the court instructed the jury on all eight counts. It also gave the jury special verdict forms for all counts, which asked the question: "Was the crime part of an ongoing pattern of psychological, physical, or sexual abuse of the same victim manifested by multiple incidents over a prolonged period of time?" CP at 86-100. This language also followed RCW 9.94A.535(3)(h)(i), but again omitted that the offense involved domestic violence or stalking.

         The jury convicted Butterfield on all counts. Additionally, the jury answered in the affirmative on each of the special verdict forms.

         The court sentenced Butterfield to an exceptional sentence of 1, 520 months. It sentenced Butterfield to the statutory maximum on each count and ran the counts consecutive to each other.

         The court entered findings of fact and conclusions of law supporting the exceptional sentence. One finding stated, "The jury unanimously found beyond a reasonable doubt that [each count] . . . was part of an ongoing pattern of sexual abuse of the same victim under the age of eighteen years manifested by multiple incidents over a prolonged period of time." CP at 131-32. The court cited RCW 9.94A.535(2)(g).[2] Butterfield appeals.

         ANALYSIS

         I. Exceptional Sentence

         Butterfield argues that we should reverse his exceptional sentence because the trial court, not the jury, made the factual finding necessary to impose the exceptional sentence. We agree.

         RCW 9.94A.535 includes numerous aggravating factors that, if found, allow the trial court to impose an exceptional sentence. Most of these circumstances must be "prove[n] to a jury beyond a reasonable doubt." RCW 9.94A.537(3); see RCW 9.94A.535(3)(g)-(h); Blakely v. Washington, 542 U.S. 296, 301, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004). "[U]nder both the Sixth Amendment to the United States Constitution and article I, sections 21 and 22 of the Washington Constitution, the jury trial right requires that [the sentence imposed by the trial court] be authorized by the jury's verdict." State v. Williams-Walker, 167 Wn.2d 889, 896, 225 P.3d 913 (2010).

         RCW 9.94A.535(3) is an exclusive list of aggravating factors that must be submitted to and found by a jury before a court may consider imposing an exceptional sentence. One aggravating factor requires a jury to find that an "offense was part of an ongoing pattern of sexual abuse of the same victim under the age of eighteen years manifested by multiple incidents over a prolonged period of time." RCW 9.94A.535(3)(g). Another aggravating factor requires a jury to find that an "offense involved domestic violence, as defined in RCW 10.99.020, or stalking, as defined in RCW 9A.46.110, and ... [t]he offense was part of an ongoing pattern of psychological, physical, or sexual abuse of a victim or multiple victims manifested by multiple incidents over a prolonged period of time." RCW 9.94A.535(3)(h)(i).

         Here, the State alleged that Butterfield's "crime[s were] part of an ongoing pattern of psychological, physical, or sexual abuse of the same victim manifested by multiple incidents over a prolonged period of time." CP at 64-68. This allegation largely followed RCW 9.94A.535(3)(h)(i). However, the charging language omitted a statutory element, which requires a jury to find, along with the above, that the offense involved "domestic violence" as defined in RCW 10.99.020 or "stalking" as defined in RCW 9A.46.110. RCW 9.94A.535(3)(h).

         Like the charging document, the jury instructions and special verdict forms also omitted the domestic violence or stalking element. The court instructed the jury that if it found Butterfield guilty, then it must determine "[w]hether the crime was part of an ongoing pattern of psychological, physical, or sexual abuse of the same victim manifested by multiple incidents over a prolonged period of time." CP at 77-80, 82. The court then provided the jury with special verdict forms, which asked the question: "Was the crime part of an ongoing pattern of psychological, physical, or sexual abuse of the same victim manifested by multiple incidents over a prolonged period of time?" CP at 86-100. The jury answered in the affirmative.

         Because the court instructed the jury using an incorrect instruction, the jury never found that Butterfield's crimes constituted domestic violence or stalking. As a result, the jury did not find all of the elements of a statutory aggravating factor beyond a reasonable doubt. RCW 9.94A.535(3)(h).

         In imposing the exceptional sentence, the trial court's findings of fact and conclusions contained a different error from that contained in the information, jury instructions, and special verdicts. The court found: "The jury unanimously found beyond a reasonable doubt that [each count] . . . was part of an ongoing pattern of sexual abuse of the same victim under the age of eighteen years manifested by multiple incidents over a prolonged period of time." CP at 131-32. This language followed RCW 9.94A.535(3)(g), not (3)(h)(i). Thus, in imposing the exceptional sentence, the court relied on a different statutory aggravating factor than the incomplete one charged by the State and the incomplete one on which it instructed the jury and which the jury found.

         In short, the charging documents, jury instructions, and special verdict forms each contained errors. Another error occurred at sentencing when the court gave Butterfield an exceptional sentence based on findings the jury did not make. As a result of these errors, the court did not have the authority to impose an exceptional sentence and erred by imposing one.

         Although the State concedes that all of the above errors occurred, it argues that the errors were harmless. The State applies its harmless error analysis without first discussing whether harmless error applies at all. We conclude that a ...


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