     IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON,                      )      No. 66836-6-1
                                          )
                     Respondent,         )       DIVISION ONE
                                         )
             v.                          )       PUBLISHED OPINION
                                         )
RICHARD DEDE SWEAT,                      )
                                         )
                    Appellant.           )       FILED: March 18, 2013


       GROSSE, J.- The aggravating factor set forth in RCW 9.94A.535(3)(h)(i) that a

defendant has engaged in a pattern of psychological, physical, or sexual abuse "of a

victim or multiple victims manifested by multiple incidents over a prolonged period of

time" does not require proof that the prior incidents of abuse involved the same victim in

the current offense. Thus, evidence that the defendant had multiple domestic violence

convictions over a period of 15 years involving different victims was sufficient to support

the trial court's finding that this aggravating factor had been established. Accordingly,

we affirm.

                                         FACTS

       In September 2010, Richard Sweat began dating Kellie Kenworthy and

Kenworthy moved in with Sweat. On September 26, 2010, the two had an argument

during which Sweat struck Kenworthy in the eye with his hand. She lost consciousness

from the blow and when she awoke could not see out of her left eye for about 30

minutes. She was later diagnosed with a fractured orbital socket.

       The State charged Sweat with second degree assault - domestic violence. The

State also charged as an aggravating factor that Sweat had a pattern of domestic
No. 66836-6-1/ 2


violence against multiple victims. Sweat elected to waive his right to a jury trial and

proceed to trial before the court.

        The court found him guilty as charged. The court also found that the State had

established the aggravating factor of an ongoing pattern of psychological, physical, or

sexual abuse of multiple victims over a prolonged period of time, based on five prior

convictions for offenses involving domestic violence and physical and/or sexual abuse.

The court imposed an exceptional sentence of 84 months' confinement. Sweat appeals

his sentence.
                                       ANALYSIS

        Sweat contends that his exceptional sentence must be reversed because the

evidence was insufficient to prove the aggravating factor that he had engaged in a

pattern of abuse. He asserts that because the prior convictions upon which the court

relied to support this finding did not involve the same victim involved in the charged

offense, the State failed to establish that aggravating factor for his current offense. We

disagree.

        A trial court may impose a sentence outside of the standard range for an offense

if the court finds that there are substantial and compelling reasons justifying an

exceptional sentence. 1 The legislature has set forth a list of aggravating factors that

may justify an exceptional sentence above the standard range, one of which is a pattern

of domestic violence abuse, as provided in RCW 9.94A.535(3)(h)(i):

             (h) The current offense involved domestic violence, as defined in
        RCW 10.99.020, and one or more of the following was present:

                (i) The offense was part of an ongoing pattern of psychological,

1
    RCW 9.94A.535.
                                            2
No. 66836-6-1/3

       physical, or sexual abuse of a victim or multiple victims manifested by
       multiple incidents over a prolonged period of time.

       Here, the trial court considered five prior convictions from 1996 to 2006 involving

domestic violence and physical and/or sexual abuse and made the following findings of

fact in support of the aggravating factor:

       2.     In 1995 the defendant committed the crime of Assault in the
       Second Degree. He was convicted in 1996. The victim was Jeanette
       Wainer. This was not designated as a crime of domestic violence. In this
       case the Assault in the Second Degree was charged, and the defendants
       plead, under the prong that with the intent to commit the crime of rape and
       indecent liberties the defendant did assault Jeanette Wainer. This is
       relevant to show an ongoing pattern of physical, psychological, and sexual
       abuse.

       3.     In 1998 the defendant was convicted of Unlawful Imprisonment and
       Assault in the Third Degree. The victim was Julia Harter. While this case
       was not specifically designated as a crime of domestic violence, the court
       is considering this conviction for the purpose of the aggravating factor.
       The Assault in the Third Degree was charged, and the defendant plead,
       under the prong that the defendant had caused bodily harm accompanied
       by substantial pain that extended for a period sufficient to cause
       considerable suffering to Julia Harter. This is relevant to show an ongoing
       pattern of physical, psychological, and sexual abuse.

       4.    The defendant was convicted of Unlawful Imprisonment- Domestic
       Violence and Assault in the Fourth Degree - Domestic Violence in 2005.
       The defendant was ordered to participate in a Domestic Violence
       perpetrator treatment program. The victim of that crime was Angelique
       Montes.

       5.     The defendant was convicted of felony Riot - Domestic Violence
       and Assault in the Fourth Degree - Domestic Violence in 2006. The
       victim of the crimes was Nina Northington.

       6.     In 2006 the defendant was convicted of felony Riot - Domestic
       Violence. The victim was Cheryl Mainer.

       7.    The defendant's first offense considered by the court occurred in
       1995. The most recent event occurred September 26, 2010. This is a
       prolonged period of time.

       8.     Each of the six separate convictions involved distinct victims. Each

                                             3
No. 66836-6-1/ 4

       conviction also involved physical, psychological and or sexual abuse. The
       six separate incidents constitute multiple incidents. Together the events
       show a pattern of ongoing physical, psychological and or sexual abuse.

       Sweat contends that this aggravating factor is limited to circumstances where the

current offense is part of an ongoing pattern of abuse of the same victim and that the

State failed to establish this by relying on incidents involving victims other than the one

involved in the current offense. He relies on the definition of "victim" in the Sentencing

Reform Act of 1981, which provides: "'Victim' means any person who has sustained

emotional, psychological, physical, or financial injury to person or property as a direct

result of the crime charged." 2

       We review issues of statutory construction de novo. 3 While Sweat contends that

the definition of "victim" contemplates only those who suffered injury from the charged

crime, the statute read as a whole indicates otherwise. RCW 9.94A.030 provides that

the definitions in this section apply throughout the chapter, "[u]nless the context clearly

requires otherwise." Here, the context does otherwise require: the statute contemplates

abuse that was not the direct result of the charged crime by referring to abuse

"manifested by multiple incidents over a prolonged period of time," and stating that the

current offense was "part of an ongoing pattern" of abuse. 4 The legislative history also

makes abundantly clear that the intent of the statute was to address the serial domestic

violence offender and consider additional victims who suffered past abuse by the


2
  RCW 9.94A.030(53).
3
  State v. Lilyblad, 163 Wn.2d 1, 6, 177 P.3d 686 (2008). If the plain words of a statute
are unambiguous, the court need not inquire further. State v. Gonzalez, 168 Wn.2d
256, 263, 226 P.3d 131 (2010). But if the language is ambiguous, the rule of lenity
applies and requires the statute to be interpreted in the defendant's favor unless there is
legislative intent to the contrary. State v. Jacobs, 154 Wn.2d 596, 601, 115 P.3d 281
12005).
  RCW 9.94A.535(3)(h)(i) (emphasis added).
                                             4
No. 66836-6-1 I 5

            5
offender.       As set forth above in the trial court's findings, the evidence here was

sufficient to support a finding of this aggravating factor.

       We affirm the judgment and sentence.




WE CONCUR:




                                                                                   '




5
  As the State notes, Attorney General Rob McKenna's proposed legislation to increase
sentencing for repeat felony domestic violence offenders included an aggravating factor
for serial domestic violence batterers with different victims, which was ultimately
adopted as the "multiple victims" language in the statute. The Senate Bill Report also
evidences an intent to modify the aggravating factor "so that it applies in situations with
different victims," and testimony before the Senate Judiciary Committee urged
punishment for the chronic and serial offender because it was not available under the
old version of the aggravating factor that was limited to a single victim. S.B. REP. on
S.B. 5208, at 3-4, 61st Leg., Reg. Sess. (Wash. 2009).
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