                                                                       FILED 

                                                                    MARCH 17,2015 

                                                              In the Office of the Clerk of Court 

                                                             WA State Court of Appeals, Division III 





           IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON 

                              DIVISION THREE 


STATE OF WASHINGTON,                        )
                                            )         No. 32232-7-111
                    Respondent,             )
                                            )
      v.                                    )
                                            )
DAVID EMORY MANLOVE,                        )         OPINION PUBLISHED IN PART
                                            )
                    Appellant.              )

      FEARING, J. - RCW 9.94A.535(3)(a) allows a sentencing enhancement ifajury

finds an aggravating factor that "[t]he defendant's conduct during the commission of the

current offense manifested deliberate cruelty to the victim." David Manlove argues that

this enhancement may not apply to a property crime, and, in particular, to burglary. We

disagree and affirm his sentence.

                                        FACTS

      In 2005, Paula Parker and her then-husband purchased a remote cabin on forty

acres in Stevens County, Washington. The couple became acquainted with their

neighbor, David Manlove, whose home lay a half mile from Parker's cabin. As

neighbors, Manlove once helped the Parkers install a wind turbine, and Paula Parker

would stop at Manlove's residence on her way to town to ask ifhe needed anything.
No. 32232-7-111
State v. Manlove


Paula Parker divorced in 2011, and she retained sole custody of the cabin. Parker and

Manlove occasionally joined one another at each other's homes for dinner. The two

enjoyed a pastoral, idyllic, and platonic relationship until ...

       On April 13, 2011, the Spokane County Superior Court ordered David Manlove

into involuntary inpatient treatment for up to fourteen days at Eastern State Hospital. The

order barred Manlove from possessing a firearm. The order also read that counsel

represented Manlove and Manlove agreed to the order. On April 22, 2011, the Spokane

County Superior Court sent a Notice of Ineligibility to Possess a Firearm to the

Department of Licensing. Following this involuntary treatment, David Manlove returned

to his Stevens County home.

       Paula Parker went on vacation from June 19 to July 2, 2013 and returned to her

cabin the morning of July 3. Once inside her home, Parker found pictures of her children

torn and lying on her kitchen table. The pictures came from a box that Parker stored

under her bed. A rocking chair, which usually sat next to Parker's bed, rested at the top

of the stairs. The butt of a thick hand-rolled cigarette, recognized by Parker to be

Manlove's cigarette, lay in an ashtray. A frightened Paula Parker left her home, drove to

a nearby campground, and called the sheriff.

       Stevens County Sheriff Deputy David Baskin responded to Paula Parker's July 3

emergency call. Parker met Baskin at the cabin. Parker told Deputy Baskin that she

suspected David Manlove of the mischief, but remained reluctant of accusing Manlove of

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No. 32232-7-111
State v. Manlove


the crime because she was not sure of his involvement. While Parker spoke with Deputy

Baskin outside her cabin, Manlove drove by but did not stop. Beginning on July 3, Paula

Parker stayed with friends.

      Paula Parker returned to her cabin home on July 7, 2013. As Parker approached

her home, she noticed a hole cut into a large tree and eight of eleven cabin windows

smashed. The front door was open. At trial, Paula Parker described, while showing

photographs to the jury, the mayhem she discovered in her living room on July 7:

             This is my stereo that should have been in this corner on top of a
      shelf. This is my couch on top of everything 1 own that would have been
      up against that back window. And-and these are all books that came offa
      shelf that's right here. The Rubbermaid tub was full of.-some of this stuff
      and underneath that couch. There's the other half of my stereo. There's
      part of my sewing machine. The rest of it is books that were torn in half
      and covers torn off it and pages torn up and puzzles thrown everywhere and
      food and clothing and tools and 1 can't even begin to tell you what all
      because it was pretty much my home.

Report of Proceedings (RP) at 129. Parker continued:

               That is a knitting needle that was poked in the seat of my reclining
      chair. I've-I found them poked in the seat, in the back of it. That's my
      couch turned upside down with all of my stuffon it. There's a multitude of
      glass. There's my wood stove that was broke. More glass. Anything that
      was glass or mirror was broke and that is in my back bedroom. There's the
      back window that was broke out and this is the bathroom. That was an old
      window that had twenty-eight panes in it. All of the windows broke out.
      The mirrors were broke off the walls, the tall mirror, all of it. And that's
      the kitchen and back end of my front room with just everything just stacked
      on top of everything and this is going up the stairs to my bedroom. And
      this is the floor in my upstairs bedroom and this is all of the stuff that was
      under my bed. Just hatchet holes, more hatchet holes, more broken
      windows. Monster holes pounded in the wall. Anything that was glass or

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No. 32232-7-111
State v. Manlove


       mirror was pretty much destroyed and broken. It's just chaos.

RP at 139-40. The home suffered hatchet holes in the walls. The destroyed woodstove

served as the cabin's only source of heat. The intruder shredded Paula Parker's medical

records, high school diploma, and college degree. Parker kept her mother's ashes in an

urn, and the prowler dumped the ashes onto the floor.

       After surveying the damage at Paula Parker's cabin on July 8, 2013, Stevens

County Sergeant Brad Manke, Sergeant Timothy Blackman, and Deputy William Britton

traveled to David Manlove's home. When asked why he damaged Paula Parker's home,

Manlove responded, "It's my mountain." RP at 242. When arrested, Manlove repeated

several times: "It's my mountain so there's no crime." RP at 243.

       Law enforcement obtained two search warrants for David Manlove's home.

Officers seized from inside Manlove's home many items that belonged to Paula Parker,

including a hatchet, a chainsaw, a veil for a belly dancing costume, a mortar and pestle,

journals, and jewelry. Officers also found marijuana plants and a rifle.

                                      PROCEDURE

       The State of Washington charged David Manlove with residential burglary,

unlawful possession of a firearm in the second degree, possession of more than forty

grams of marijuana, possession of stolen property in the third degree, and malicious

mischief in the first degree. The State further alleged that Manlove committed residential




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No. 32232-7-111
State v. Manlove


burglary with deliberate cruelty in violation ofRCW 9.94A.535(3)(a). The trial court

found Manlove competent to stand trial after an evaluation by Eastern State Hospital.

       At the close of trial, the trial court instructed the jury that:

             "Deliberate cruelty" means gratuitous violence ,or other conduct
       which inflicts physical, psychological, or emotional pain as an end in itself,
       and which goes beyond what is inherent in the elements of the crime or is
       normally associated with the commission of the crime.

Clerk's Papers (CP) at 177. The jury found David Manlove guilty as charged. The jury

also found by special verdict that Manlove's conduct during the commission of

residential burglary manifested deliberate cruelty to the victim.

       The trial court sentenced David Manlove to 120 months of incarceration for

committing residential burglary with deliberate cruelty. The court imposed shorter

sentences for the remaining four counts, and ordered all five counts to run concurrently.

                                   LA W AND ANALYSIS

       RCW 9.94A.535, a portion of the 1981 Sentencing Reform Act (SRA), permits a

trial court to sentence one convicted of a crime either below or above the standard range

imposed under sentencing guidelines. The statute lists mitigating circumstances that may

lower the sentence and aggravating factors that may raise the sentence. We quote that

portion ofRCW 9.94A.535 at issue, subsection (3)(a), plus other portions that assist us in

interpreting subsection (3)(a):

              The court may impose a sentence outside the standard sentence
       range for an offense if it finds, considering the purpose of this chapter, that

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No. 32232-7-III
State v. Manlove


      there are substantial and compelling reasons justifying an exceptional
      sentence. Facts supporting aggravated sentences, other than the fact of a
      prior conviction, shall be determined pursuant to the provisions ofRCW
      9.94A.537.

             (3) Aggravating Circumstances-Considered by a Jury-Imposed
      by the Court
             Except for circumstances listed in subsection (2) of this section, the
      following circumstances are an exclusive list of factors that can support a
      sentence above the standard range. Such facts should be determined by
      procedures specified in RCW 9.94A.537.
             (a) The defendant's conduct during the commission of the current
      offense manifested deliberate cruelty to the victim.

            (c) The current offense was a violent offense, and the defendant
      knew that the victim of the current offense was pregnant.

              (e) The current offense was a major violation of the Uniform
      Controlled Substances Act, chapter 69.50 RCW (VUCSA), related to
      trafficking in controlled substances, which was more onerous than the
      typical offense of its statutory definition: The presence of ANY of the
      following may identify a current offense as a major VUCSA:

             (h) The current offense involved domestic violence, as defined in
      RCW 10.99.020, or stalking, as defined in RCW 9A.46.l10, and one or
      more of the following was present:
             (i) The 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;

            (u) The current offense is a burglary and the victim of the burglary
      was present in the building or residence when the crime was committed.

             (dd) The current offense involved a felony crime against persons,
      except for assault in the third degree pursuant to RCW 9A.36.031(l)(k),
      that occurs in a courtroom, jury room, judge's chamber, or any waiting area
      or corridor immediately adjacent to a courtroom, jury room, or judge's
      chamber.


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No. 32232-7-111
State v. Manlove


The legislative intent of the SRA's exceptional sentence provision is to authorize courts

to tailor the sentence, as to both the length and the type of punishment imposed, to the

facts of the case, recognizing that not all individual cases fit the predetermined

structuring grid. State v. Davis, 146 Wn. App. 714,719-20,192 P.3d 29 (2008).

       David Manlove contends the aggravating factor of deliberate cruelty under RCW

9.94A.535(3)(a) is not applicable to residential burglary. Manlove does not argue that the

facts are insufficient to support a finding of deliberate cruelty, but rather that the

aggravating factor does not apply as a matter of law to a property crime. Therefore, we

do not discuss what constitutes "deliberate cruelty."

       We must read and reread RCW 9.94A.535(3)(a) to discern if the Washington State

Legislature wished the deliberate cruelty aggravator to apply to property crimes, such as

residential burglary. When interpreting a statute, this court's fundamental objective is to

determine and give effect to the intent of the legislature. State v. Sweany, 174 Wn.2d

909,914,281 P.3d 305 (2012). When possible, this court derives legislative intent solely

from the plain language enacted by the legislature, considering the text of the provision in

question, the context of the statute in which the provision is found, related provisions,

and the statutory scheme as a whole. State v. Evans, 177 Wn.2d 186, 192, 298 P.3d 724

(2013).

       We conclude the legislature intended the deliberate cruelty sentence enhancement

to be available for property crimes for two reasons. First, when the legislature desired to

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No. 32232-7-111
State v. Manlove


limit the application of an aggravating factor to certain offenses, it expressly provided

that limitation in the statute. For example, the legislature limited the aggravating factor

for a pregnant victim to instances when "[t]he current offense was a violent offense."

RCW 9.94A.535(3)(c). The legislature likewise limited the aggravating factor for

trafficking controlled substances to instances when "[t]he current offense was a major

violation of the Uniform Controlled Substances Act, chapter 69.50 RCW." RCW

9.94A.535(3)(e). And the legislature limited the aggravating factor for ongoing abuse to

instances when "[t]he current 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)(i). The

legislature could have limited the application ofRCW 9.94A.535(3)(a) to crimes against

a person if it so desired.

       Second, RCW 9.94A.535(3)(u) allows a sentence enhancement when the current

offense is a burglary and the victim of the burglary was present in the building or

residence when the crime was committed. This subsection of the statute shows a

legislative intent to allow an exceptional sentence in some property crimes and confirms

that some of the other enhancements could apply to crimes such as burglary. In turn, no

subsection ofRCW 9.94A.535 precludes an exceptional sentence under circumstances

when the victim of the burglary is away from the building.

       David Manlove committed residential burglary in violation ofRCW 9A.52.025(1),

which provides: "A person is guilty of residential burglary if, with intent to commit a

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No. 32232-7-III
State v. Manlove


crime against a person or property therein, the person enters or remains unlawfully in a

dwelling other than a vehicle." As this court noted in In re the Postsentence Review of

Childers, because residential burglary is not listed in RCW 9.94A.411, which enumerates

crimes against persons toward guiding prosecutorial discretion, the charge does not

qualifY as a crime against a person. 135 Wn. App. 37,40, 143 P.3d 831 (2006). Pointing

to Childers, David Manlove argues that the aggravating factor of "deliberate cruelty" is

limited to only crimes against a person. Nevertheless, the reasoning behind Childers

does not support this conclusion, and no authority supports such a limitation. Childers

involved whether the defendant could receive community custody.

       David Manlove emphasizes the word "to" in RCW 9.94A.535(3)(a)'s phrase

"manifested deliberate cruelty to the victim" to argue that the cruelty must be directed to

the victim. He argues that he directed his cruelty to the property he destroyed or the

home, not to Paula Parker. We reject this argument because the ordinary person and the

English language does not consider property to be the subject of cruelty. A torturer

directs cruelty to human beings and other sentient beings, not to inanimate objects. When

construing a statute, we consider the natural and contextual meanings that attach to a

term, giving words their usual, ordinary, and commonly accepted meaning. Greenhalgh

v. Dep't ofCorr., 180 Wn. App. 876, 884,324 P.3d 771, review denied, 337 P.3d 326

(2014).




                                             9

No. 32232-7-III
State v. Manlove


       No previous case expressly holds that the deliberate cruelty enhancement is

available for a burglary or property crime. Nevertheless, we find support in three

Washington decisions: State v. Goodman, 108 Wn. App. 355, 30 P.3d 516 (2001);

State v. Tierney, 74 Wn. App. 346, 872 P.2d 1145 (1994); and State v. Sims, 67 Wn. App.

50, 834 P.2d 78 (1992). In each case, the defendant received a deliberate cruelty

enhancement for a property crime.

       In State v. Goodman, Lee Goodman torched his estranged wife's home, killing her

pet dog in the fire. Goodman pled guilty to first degree arson, residential burglary,

violating a protection order, and killing a pet. The sentencing court imposed an

exceptional sentence of360 months. Goodman, 108 Wn. App. at 357. This court

affirmed an exceptional sentence based, in part, on deliberate cruelty.

       In State v. Tierney, the court upheld an exceptional sentence based on deliberate

cruelty where the underlying conviction was arson, a property crime. The jury also found

Michael Tierney guilty of residential burglary. Tierney burned his former love's home

out of obsession for her. Tierney, 74 Wn. App. at 348. He also engaged in a pattern of

harassment against the girlfriend and her parents.

       In State v. Sims, the court upheld a deliberate cruelty enhancement upon a

conviction for first degree burglary. Michael Sims entered the home of a 78-year-old­

woman, took money and car keys from the woman, and slapped her. Sims, 67 Wn. App.

at 52. Although Sims assaulted the woman, he was charged only with burglary.

                                             10 

No. 32232-7-III
State v. Manlove


                                      CONCLUSION

       We hold that, under appropriate circumstances, the deliberate cruelty aggravating

factor may apply to a property crime. We affirm David Manlove's convictions and

sentence, including the enhancement for deliberate cruelty.

       The remainder of this opinion has no precedential value. Therefore, it will be filed

for public record in accordance with RCW 2.06.040, the rules governing unpublished

opinions.

                   STATEMENT OF ADDITIONAL GROUNDS (SAG)

       In his SAG, David Manlove asserts four arguments. Manlove first challenges his

conviction for residential burglary. Manlove cites State v. Mevis, 53 Wn.2d 377,333

P .2d 1095 (1959) for the proposition that mere proof of possession of recently stolen

property cannot in itself establish a prima facie case of larceny or burglary. But here,

Paula Parker identified many of the items found in Manlove's home as belonging to her.

The intruder used a hatchet to inflict much ofthe damage, which police found at

Manlove's home. Parker recognized the cigarette butt as from Manlove's cigarette.

Therefore, this challenge fails.

       David Manlove next challenges his conviction for unlawful possession of a

firearm. The instructions to the jury referenced involuntary commitment for "mental

health treatment." CP at 155. Manlove argues he was evaluated, but never treated, and

that only receiving treatment would bar him from possessing a firearm. Regardless, this

                                             11 

No. 32232-7-II1
State v. Manlove


argument belies exhibits 46 and 47, which show that Manlove was committed to Eastern

State Hospital for "[i]nvoluntary inpatient treatment." Ex. P-46, at 1.

         David Manlove also challenges the reinstating of his sentence in "case # 11-1­

00090-1." SAG at 10. Based on the conduct at Paula Parker's home, the trial court

determined that Manlove violated the terms of a 2011 suspended sentence. Defense

counsel expressly waived any objection to that determination. Manlove himself did not

object. Therefore, Manlove waived this assignment of error. RAP 2.5(a).

         Finally, David Manlove argues that being tried in a jumpsuit denied him a fair

trial. At sentencing, the trial court commented: "Now, the contempt that you show to the

Court has-has been consistent by your wearing jail clothes, not playing the game." RP

at 408. This comment indicates that Manlove refused to wear anything but the jumpsuit.

Regardless, because the record does not show that Manlove objected to wearing prison

garb at trial, the issue is waived. United States v. Rogers, 769 F.2d 1418, 1423 (9th Cir.

1985).


                                                     .3a
                                                      Fe~l
                                                          ~.
WE CONCUR:


  ~{Q,;r
         Siddoway,   ..                                Lawrence-Berr y, J.




                                              12 

