           IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                               DIVISION ONE

THE STATE OF WASHINGTON,                           No. 75111-5-1
                                                   (Consolidated with No. 75116-6-1)
                           Respondent,                                                                 ti)Cs
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                                                    UNPUBLISHED OPINION
LORI BYLYNN LLOYD,                                                                                37-0
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                                                                                                  trirno
CHRISTOPHER JOEL SEFTON,                                                                      =IC
                                                                                                  =1›.
AND EACH OF THEM,                                                                                  mak

                           Appellants.              FILED: May 21, 2016

       SCHINDLER, J. — A jury convicted Christopher Joel Sefton and Lori Bylynn Lloyd

of assault of a child in the first degree and criminal mistreatment in the first degree of

six-year-old K.S. By special verdict, the jury found K.S. was a particularly vulnerable

victim, Sefton and Lloyd engaged in an ongoing pattern or practice of assault for a

prolonged period of time, and their conduct manifested deliberate cruelty against a

family or household member. The court imposed an exceptional sentence.

       Sefton seeks reversal of the conviction. Sefton argues (1) impermissible opinion

testimony deprived him of the right to a fair trial; (2) in the alternative, his attorney

provided ineffective assistance of counsel by failing to object to the opinion testimony;

(3) the court violated his right to a unanimous jury trial by failing to give a unanimity

instruction on assault of a child in the first degree;(4) sufficient evidence does not
No. 75111-5-1 (Consol. with No. 75116-6-1)/2

support the alternative means of committing criminal mistreatment in the first degree;

and (5) prosecutorial misconduct during closing argument deprived him of the right to a

fair trial. Sefton also challenges the order to obtain a mental health evaluation as a

condition of community custody and imposition of the no-contact order with his child

D.S.

       Lloyd seeks reversal of the conviction, arguing (1) sufficient evidence does not

support the jury finding her guilty of assault in the first degree of K.S.,(2)the conviction

for assault in the first degree and criminal mistreatment violates double jeopardy,(3)the

term "torture" to define the crime of assault of a child in the first degree is

unconstitutionally vague,(4)the aggravating factors of deliberate cruelty and a

particularly vulnerable victim are unconstitutionally vague,(5)the evidence does not

support imposition of an exceptional sentence, and (6) her attorney provided ineffective

assistance by failing to argue that assault of a child in the first degree and criminal

mistreatment constitute the same criminal conduct.

       We affirm the convictions of assault of a child in the first degree and criminal

mistreatment in the first degree. We remand to determine whether to order a mental

health evaluation of Sefton and if so, enter findings, and to determine whether to impose

a no-contact order with D.S. and if so, address the scope and duration of the no-contact

order with D.S.

                                            FACTS

       Lori Bylynn Lloyd and Wesley Lloyd married in 2005 and lived in Florida. On

January 15, 2006, Lloyd gave birth to a daughter, R.L. Wesley Lloyd died in July 2010.

In August 2010, Lloyd moved to Auburn, Washington with four-and-a-half-year-old R.L.



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       Christopher Joel Sefton and Genevieve Jacobs began dating in late 2006. On

May 3, 2007, Jacobs gave birth to their son, K.S. Sefton and Jacobs separated in 2008.

Sefton and K.S. lived with Sefton's mother from 2008 until 2011.

       Lloyd and Sefton started dating in 2011. In November 2011, Lloyd was pregnant

and the couple got engaged. In December 2011, Sefton, his four-and-a-half-year-old

child K.S., Lloyd, and her six-year-old child R.L. started living together in a two-bedroom

apartment. On June 14, 2012, Lloyd gave birth to D.S. Lloyd worked during the week

and weekends. Sefton stayed home with the children.

Gildo Rey Elementary School 2012 until January 2014

       K.S. attended Gildo Rey Elementary School (Gildo Rey) beginning in the fall of

2012 through January 2014. At the beginning of kindergarten in September 2012, five-

year-old K.S. had "rosy... chubby cheeks," "shiny" brown hair, and "big eyes." Auburn

School District physical therapist Samantha Laskey began working with K.S. in

September to improve his motor skills and coordination. Laskey described K.S. as "a

really sweet kid" with "a lot of creativity and energy." K.S. often talked to Laskey and

told her "how his day was going."

       Near the end of the school year in 2013, the kindergarten teacher reported

concerns about K.S. to school counselor Shannon Durnin. K.S. ate food from the

garbage can and picked crumbs off the floor to eat. Durnin contacted Sefton. Durnin

told Sefton the school could provide food to K.S. Sefton said K.S. had "psychological

issues around food" and instructed Durnin not to give K.S. "extra food." Sefton told

Durnin that K.S.'s biological mother withheld food from him when he was an infant,

resulting in a failure to thrive.



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       At the beginning of the next school year in September 2013, Sefton filled out the

student health information sheet for K.S. Sefton checked the box indicating K.S. had

food allergies) Sefton noted K.S. was allergic to "artificial colors and flavors" and not

allowed to have "added sugar." School nurse Carrie Sasser sent a "diet prescription

form" home with K.S. to learn what foods to avoid and what foods to substitute. The

form is to be filled out by a doctor. Neither Sefton nor Lloyd ever returned the diet

prescription form to the schoo1.2

       According to Gildo Rey first-grade teacher Tammy Boom, K.S. followed

expectations and did not "act out" in class. But K.S. often appeared "unkempt" with

"patchy" hair and he usually was not clean when he came to school. K.S. wore clothes

with holes and "didn't always have a coat." Boom said K.S. was always hungry. Gildo

Rey provided free breakfast and lunch to students. When K.S. was still hungry after

eating lunch, Boom n let K.S. take leftover food out of the "share bin."

        Physical therapist Laskey continued working with K.S. during first grade. Laskey

noticed a significant change from the previous year. K.S.'s hair was "thin and kind of

patchy," his face "sallow," his cheeks were "sunken in," and he had bags under his

eyes. His demeanor had also changed. K.S. was "withdrawn," did not make eye

contact, and acted "skittish." K.S. complained of being hungry and talked about food

regularly. Laskey began bringing oranges to their therapy sessions. On one occasion,

Laskey raised her voice "just a little" to tell K.S. not to climb on a table. K.S. "shut

down" and hid under the table for 20 minutes "before he would even look" at her.



        1 The 2012 student health information sheet for K.S. did not indicate any food allergies.
        2 Sasser had over 20 years' experience working in the medical profession and was not "familiar
with food allergies concerning added sugar."


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       On October 28, 2013, Boom reported to school nurse Sasser that K.S. was

"hungry in class and hoarding food." K.S. said he was given only crackers to eat at

home. Sasser called Lloyd. Lloyd told Sasser that K.S. was on a "BRAT"3 diet because

he had been sick. Sasser expressed concern about the diet. Sasser told Sefton,"You

don't want to give it very long because kids. . . get protein deficient fairly quickly." Lloyd

"got really defensive." Lloyd said, "I know what gastroenteritis is, I've had kids before, I

know what this is." Lloyd told Sasser K.S. had issues with food because of his

biological mother "starving him when he was younger."

       When K.S. was absent from school the next day on October 29, Sasser called

Sefton. Sasser told Sefton K.S. looked like he was losing weight. Sasser asked Sefton

if the family needed assistance with food. Sefton assured Sasser that "there was no

problem with ... having enough food." Sasser contacted Child Protective Services

(CPS)to report possible neglect.

       When K.S. returned to school on October 30, first-grade teacher Boom noticed

he had scabs on his face and was noticeably thin. Boom called Sefton. Sefton told

Boom n that K.S. had been sick. When Boomn asked what type of illness it was, Sefton

replied, "I don't remember,. . .[K.S.] was probably lying about[being sick]" because

"he's a liar." Boom n told Sefton that even if K.S. had stomach flu, he could still eat foods

like rice and bananas. Sefton claimed K.S."was starved as a baby by his mother" and

"compared [K.S.] to a drug addict when it came to high fructose corn syrup." Sasser

started regularly recording K.S.'s height and weight.




       3 Bananas, rice, applesauce, and   toast.


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       On October 31, CPS social service specialist Heather Prescott interviewed K.S.

at Gildo Rey. Prescott asked K.S. why he thought she was there to talk to him. K.S.

responded,"My parents always spank me." K.S. told Prescott he ate crackers and

water at home and he was on a "new diet" with "no high fruit corn syrup," candy, ice

cream, or sugar. When Prescott asked what K.S. ate for dinner the night before, K.S.

said, "Nothing. I did my homework. I asked for food last night and dad didn't have

enough time." K.S. said,"Dad normally doesn't feed me at home until I do my

homework right." K.S. told Prescott his stepsister R.L. gets to eat "[c]hicken, corn, and

mashed potatoes" but he "can't have those things" because his doctor says he is

allergic to sugar. When Prescott asked,"Do you ever eat bananas at home," K.S.

responded,"No."

       On November 8, Sound Mental Health therapist Amy McMahan began

counseling sessions with K.S. McMahan met with K.S. at school during the lunch hour.

K.S."was very fixated on his food." He "ate quickly, very quickly"; would not talk to

anyone while there was food around; and ate crumbs off the table. McMahan described

K.S. as "little, small for his age, it seems like, very sweet, quiet, never saw any anger or

outbursts or anything like that."

       On November 19, CPS social worker Prescott met with Lloyd and Sefton at their

home. Lloyd and Sefton said the CPS report was related to putting K.S. on a BRAT

diet. Lloyd said she fed K.S. bananas and offered him stew but he "refused it." Lloyd

expressed concern about giving K.S. other food because it could upset his stomach.

Lloyd told Prescott they had known Sasser for three years and they did not get along

well with her because Sasser wanted to feed K.S. "processed foods. . . like hot dogs."



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Lloyd said they tried following Sasser's advice to feed K.S. what he wanted to eat but

K.S. got sick after eating three peanut butter sandwiches. Lloyd told Prescott K.S. had

issues with food that "stemmed from him being starved by his mother when he was

younger."

       Prescott interviewed R.L. in private. R.L. told Prescott that she and K.S. did not

always eat the same food. R.L. said, "I eat bacon and he doesn't. I eat Jack-in-the-Box

and he doesn't sometimes." When Prescott asked why K.S. does not eat those foods,

R.L. responded,"He doesn't behave. It's something he can't have or it's too messy or

greasy."

       School counselor Durnin was on maternity leave during the fall of 2013 and

Melodie Kieswether took her place. Boom told Kieswether she was "concerned about

[K.S.] because he was taking food out of the garbage." Kieswether and Sasser were

concerned K.S. was suffering from malnutrition. K.S. told Kieswether he "took food out

of the trash because he was hungry." K.S. said he was not allowed to eat the same

food as the rest of his family and he usually just ate soup for dinner. Lloyd told

Kieswether what food K.S. could eat. According to Kieswether, it seemed that "[e]very

week there was different things [Lloyd] didn't want him to have."

       Kieswether said K.S. often came to school "really, really fatigued." When she

asked why he was so tired, K.S. explained, "[VV]ell, I didn't do my homework right, so my

dad would make me stay up and do my homework." Both Sefton and Lloyd contacted

Kieswether "really concerned about the quality of[K.S.'s] homework." According to

Kieswether, "they would make him do it over and over again until it was better." Sefton

and Lloyd wanted K.S. to stay inside at recess as "punishment" because he was not



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"working hard enough" or "doing a good enough job" on his homework. Kieswether said

K.S. "just stole my heart. ... He was always just really sweet. . . .[B]ut he was also just

really sad." Kieswether called CPS at least twice about K.S.

       In November, K.S. waited without a coat for the school bus for an hour and a half

in the rain. When he arrived at school, K.S. was "shaking and he was blue."

Kieswether gave K.S. dry clothes and a coat. K.S. returned to school after the winter

break from mid-December 2013 to January 6, 2014 "noticeably thinner" with "dark

circles under his eyes." Boom saw K.S. try to eat food out of the trash in the classroom

and the "dump station" where children throw away uneaten food. Boom sent K.S. to

Sasser. K.S. had lost four pounds over the winter break. Sasser contacted CPS.

       School counselor Durnin returned to Gildo Rey from maternity leave in early

January 2014. Durnin said K.S. looked significantly different. K.S. "looked really tired

all the time," he "had bags under his eyes," and he seemed to have lost weight. Durnin

believed K.S. appeared to be suffering from malnutrition. K.S. told Durnin his parents

"were keeping him up at night" and "[t]here were lots of nights where he... didn't get

dinner." K.S. said he was not allowed to eat when his family went to restaurants

because he was "bad" or "allergic to the food." K.S. told Durnin that "as punishment,"

he had to do push-ups while wearing a backpack that contained cans of food or stand

with his nose touching the wall for long periods of time. K.S. believed his father hated

him and told Durnin, "I'd be better off if I wasn't here. My dad just doesn't like me."

       Gildo Rey students were encouraged to wear Seahawks colors for "blue Friday"

on January 10. K.S. came to school without a coat and wearing only a T-shirt. K.S.

said his father took his coat away because he bragged to R.L. about the Seahawks



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colors of the coat. Durnin made a referral to CPS about the weight loss and coming to

school without a coat.

      CPS social worker Nina Gonzalez met with K.S. at Gildo Rey on January 10.

K.S. told Gonzalez that "when he is bad," his father and stepmother gave him cold

showers, spanked him, and made him do push-ups wearing a backpack. K.S. said if he

did not finish his homework,"he did not get to eat dinner and is sent to bed." K.S. told

Gonzalez he "did not feel safe in the home with his father and stepmother because he is

not allowed to eat sometimes."

       On January 14, Sefton brought K.S. to school late. When they arrived at the

classroom, K.S. asked if he could have breakfast. Sefton said, "[N]o, you already ate

breakfast. .. .[P]ut your head down." When K.S. began sobbing, Boom asked Sefton

to leave. Boom spoke with Sefton in the hallway. Sefton told Boom K.S "needed to be

punished" because he pushed his sister. Boom described Sefton's behavior as

"alarming" and "his tone was very aggravated." Boom was "frightened" and insisted

Sefton not come to her classroom. When Boom returned to the classroom, she gave

K.S. a peanut butter and jelly sandwich, an apple, and milk.

       On January 15, CPS social worker Gonzalez met with Sefton and Lloyd at their

home. Sefton and Lloyd told Gonzalez that when K.S. does not do his homework, he

does not get dessert. Sefton and Lloyd said they made K.S. do 15 push-ups "as a way

to blow off steam" but denied making him do push-ups with weights. The social worker

accompanying Gonzalez observed a heavy backpack with cans in it. Sefton and Lloyd

told Gonzalez that K.S. has behavioral problems at home and other methods of




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punishment were unsuccessful. Gonzalez instructed Sefton and Lloyd to take the

children to the doctor.

         On January 16, a school social worker called Gonzalez about K.S. The social

worker reported that K.S. was punished the night before with push-ups and time out and

was not allowed to have breakfast that morning. The social worker reported K.S. said

that "his father hit him in the face as punishment." Gonzalez did not contact Sefton or

Lloyd.

         On January 23, after eating breakfast at school, K.S. ate a muffin from the dump

station and choked. After Boom performed the Heimlich maneuver, K.S. was fine for

the rest of the day. Sefton called later that day, upset the school did not notify him that

K.S. choked while eating food out of the garbage can. Sefton told Gildo Rey Principal

Jana Jo Uhlendorf that K.S. was "a manipulative little kid" and had been "soaking

himself in food" at school. Sefton threatened to file a lawsuit. The school principal

characterized Sefton as "[v]ery aggressive." Sefton called Auburn School District

Superintendent Dennis Kip Herren. Sefton was "very abusive," angry, and "threatening"

to school staff. Sefton told Herren the staff at Gildo Rey were putting his son's life in

danger. After his conversation with Sefton, Herren learned about the CPS referrals and

concerns for the safety of K.S. Herren decided to allow K.S. to transfer to Chinook

Elementary School (Chinook) mid-year because of "the same exact nursing staff' at

Chinook. School nurse Sasser worked at both Gildo Rey and at Chinook.

Chinook Elementary School January until March 2014

         In January 2014, Sefton enrolled K.S. at Chinook. First-grade teacher Jill

Hopkins said K.S. did not appear to "feel safe around his dad" and K.S. was shaky and



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timid. K.S. was not focused on lessons and sat with "a listless kind of blank kind of

stare." During class, K.S. was very focused on food and constantly "talking about it,

asking about when he could have food, when the next time he would be able to get

food, when we served food,[and] where we kept the food." K.S. told Hopkins he did not

have dinner at home "because he was bad" and he was not "allowed" to sleep. K.S.

had very little energy and often fell asleep in class, usually within two to three minutes

after sitting down at his desk, and while outside during recess.

       On January 30, Lloyd sent a handwritten letter to Hopkins. Lloyd identifies

herself as the stepmother of K.S. Lloyd states K.S. will eat "breakfast at home from now

on" and bring his lunch. Lloyd asked Hopkins to "please... not let him trade his food or

eat extra food that isn't fruits or vegetables except occasional classroom treats." Lloyd

and Sefton signed the letter she wrote.

       Hopkins spoke to Lloyd once when she picked up K.S. from school. Lloyd

warned Hopkins that K.S. would "want to try and get food from you, but don't let him

because he just will kind of manipulate you." K.S. brought only half a sandwich and four

carrot sticks for lunch. Sasser was concerned the lunch K.S. brought to school was

deficient in protein.

       On February 4, K.S. arrived at school "extremely upset" because he did not eat

breakfast at home. The school principal helped K.S. calm down and gave him an apple.

K.S. ate the entire apple, including the core. Hopkins e-mailed Sefton to tell him the

lack of breakfast was hindering K.S.'s education. Sefton responded that K.S."chose" to

eat only a few bites of breakfast that morning because K.S. did not want to stop playing.




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Sefton believed it was more important for K.S. to be on time for school than to finish

breakfast.

       On February 26, K.S. went to the school nurse's office. Health technician Karen

Knight noticed his ear was "purple and very sore" and had "nail marks" on it. School

counselor Jesse Rodriguez examined K.S. and noticed a large purple bruise on the top

of K.S.'s ear and small round bruises on his forearms. The inside of his ear "also had

some diagonal slash marks that looked like fingernail marks, as if somebody had

reached out and grabbed him by his ear." When Rodriguez asked K.S. what happened

to his ear, K.S. said he did not remember. K.S. told Rodriguez he had to sleep on the

floor with no pillow or blanket when his family went on vacation the previous weekend.

K.S. seemed "beaten down" and "defeated." Rodriguez called CPS to report physical

abuse of K.S.

       Sefton called Chinook the morning of February 27 and instructed office manager

Lisa Wilkinson to make sure K.S. did not get breakfast. Sefton said he offered K.S.

breakfast at home but K.S. refused to eat. Sefton said that when he dropped K.S. off at

school, K.S. was crying and misbehaving in the parking lot. When K.S. arrived at

school that day, he was "hysterical about not having any food." Hopkins gave K.S. a

few orange slices and string cheese. After K.S. ate, he calmed down.

       On February 28, CPS social worker Gonzalez interviewed K.S. at Chinook.

School counselor Rodriguez was present. Gonzalez asked K.S. what he had for dinner

the night before. K.S. said his father made "spaghetti with light sauce and chicken

nuggets" for R.L. and she had ice cream for dessert. K.S. said his father made him "a

special kind of medicine" for dinner that consisted of "a sandwich in a blender." When



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Gonzalez asked why Sefton put the sandwich in a blender, K.S. responded, "I normally

take big bites." K.S. said that unlike R.L., he was not allowed to eat spaghetti because

"I'm messy with it" and "my mom doesn't want to deal with me because I'm too messy."

Gonzalez asked K.S. if he eats breakfast every day before school. K.S. responded that

he was not allowed to eat breakfast at home the day before because he took too long to

get ready for school. K.S. said his father did not allow him to eat breakfast at school

because "[h]e knew I was going to get a peanut butter and jelly sandwich and a cheese

stick, and the peanut butter sandwich has food coloring in it."

       Gonzalez asked K.S. about the injury to his ear. K.S. told Gonzalez his family

went on vacation the week before and stayed at a hotel. K.S. said the hotel room had

two beds but he had to sleep on the floor. K.S. said the mark on his ear "might be a

carpet burn" from sleeping on the floor or from "a bunch of fleas biting my ear." K.S.

said he sleeps on the floor at home because "[w]e use stuff for [the bed]. There's

buckets in my bed." K.S. denied anyone grabbed his ear. Gonzalez asked K.S. if he

was afraid of telling the truth because he might get in trouble. K.S. said, "[Y]eah." But

K.S. insisted, "I don't know what happened."

       Gonzalez asked K.S. what happens when his parents put him on time-out. K.S.

told Gonzalez he has to do 15 or more push-ups, stand in the corner, or take cold

showers. K.S. said if he leaves the time-out corner, Sefton "hits me on the bottom" with

his hand "[m]ore than one time."

       Gonzalez took photographs of K.S. and sent them to Seattle Children's Hospital

for review. Child abuse pediatrician Dr. Rebecca Weister reviewed the photos. Dr.

Weister believed the ear injury was "very worrisome for inflicted trauma." Dr. Weister



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told Gonzalez that because the ear injury was not consistent with sleeping on the floor,

a doctor should evaluate K.S.

       Later that day, Gonzalez spoke to Sefton and Lloyd. Gonzalez told Sefton and

Lloyd to take K.S. to Seattle Children's Hospital "to check the bruise on his ear."

Because Sefton and Lloyd did not take K.S. to Seattle Children's Hospital, the hospital

made a referral to CPS.

       The next day, Saturday, March 1, CPS contacted the Auburn Police Department

to conduct a welfare check. Sefton and Lloyd refused to take K.S. to Seattle Children's

Hospital but agreed eventually to take K.S. to Auburn Medical Center. Sefton and Lloyd

did not allow the other children to be examined. At approximately 5:00 p.m., CPS social

worker Xiao Yu Jackson interviewed K.S. at the hospital. K.S. said he did not have

lunch that day and he was hungry. K.S. told Jackson his ear injury was from sleeping

on the floor.

       The Auburn Medical Center physician described K.S. as "thin" and noted K.S.

was "very hungry" and asked for food during the examination. The physician gave K.S.

a sandwich, yogurt, juice, and milk. K.S. appeared "shaky" and had "resting tremors."

       While waiting at Auburn Medical Center, Sefton and Lloyd exchanged a number

of text messages. Lloyd said K.S."managed to whine enough that they gave him food

... lots of food," and told Sefton that K.S. is "having a great time with all the attention

he's getting."4 Sefton responded,"Really? Looks like he gets nothing else tonight then.

. .. We'll have to deflate his ego.... 1 was going to suggest getting him something while

we were out if he behaved while we were dealing with this shit. . . Not anymore."5


       4 Alteration   in original.
       5   Last alteration in original.


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Lloyd said the doctors took K.S. to get juice and K.S. "whined about being hungry and

came back with his mouth already crammed full as well as an arm load of stuff." Lloyd

told Sefton that K.S. ate the "junk" while the doctor was there but decided to save the

sandwich for later. Sefton responded, "Bastard . . . . That figures. .. . First thing I'm

doing in the car? Eating the sandwich." Lloyd told hospital staff they were going to

dinner as soon as K.S. was discharged. The hospital released K.S. into Lloyd's care.

          The following Monday, March 3, K.S. was absent from school. Sefton called and

spoke to school counselor Rodriguez. Sefton was "really, really agitated and mad."

Sefton told Rodriguez that K.S."was trying to manipulate school personnel into giving

him food." Sefton said K.S. had "mental health issues" and "should not be believed that

anything was happening unless he was bleeding." Sefton remarked that CPS was

discriminating against him as a single father. Sefton told Rodriguez he wanted all

HIPAA6 waivers revoked then hung up.

          K.S. returned to school the next day, March 4. Nurse Sasser noticed his "nose

was red, his lips were dry and cracked, and he had dark circles under his eyes." K.S.

told Sasser his nose was red from sleeping on the floor. Sasser had to make a belt for

K.S. because his pants kept falling down. Sasser asked K.S. if he had been eating.

K.S. told Sasser his father put his sandwich in a blender but he did not like his food that

way. Sasser gave K.S. a cheese stick and yogurt. Sasser e-mailed CPS social worker

Gonzalez about her concern that K.S. was not eating enough and his parents were

depriving him of sleep.




          6   Health Insurance Portability and Accountability Act of 1996, Pub. L. 104-191, 110 Stat. 1936
(1996).


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       The school principal waited with K.S. until he was picked up from school that day.

While waiting, the principal gave K.S. a bag of Goldfish crackers as a snack. Afterward,

both Lloyd and Sefton called Chinook and spoke to office assistant Karen McCabe.

Sefton was angry the school principal gave K.S. crackers and said K.S. "cannot have

food other than what he's given at lunch." Lloyd said KS. had issues with artificial color

and sweeteners. Lloyd said she did not want K.S. to receive foods containing artificial

colors or sweeteners because they "affected his behavior." According to Lloyd, K.S.'s

behavior had been "off the charts the last couple weeks" because of the snacks he

received at school.

       In a letter dated March 4, Sefton told Sasser she was no longer allowed to

examine K.S. Sasser characterized the letter as "threatening." Sefton also met with the

Chinook principal. Sefton did not want Sasser communicating with K.S. and wanted to

revoke K.S.'s IEP7 and all HIPPA waivers. Sefton also insisted the teachers should

have "eyes on [K.S.] all the time" to make sure he did not eat any food with artificial food

coloring. During the meeting, Sefton became "more and more agitated" and "started

rambling about just that [K.S.]'s not doing what he's supposed to be doing at home."

Sefton had "nothing positive" to say about K.S. The principal said K.S seemed like a

"kind hearted" boy. Sefton disagreed. When the principal tried to get Sefton to focus on

K.S.'s strengths, "it was an awkward moment."

       I'd asked [Sefton], could you tell me any strength about [K.S.]. And it was
       an awkward moment, and I think he finally just kind of said, yeah, he's
       smart enough, you know, and — but I'm super positive, I really work with
       parents. And it was odd. It was — it was the only I would say
       conversation I've ever had with a parent where I even had to ask them to
       tell me something, tell me something great about your kid, or tell me


      7 Individualized   education program.


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No. 75111-5-1 (Consol. with No. 75116-6-1)/17

       something that's positive about your student. That was a big red flag for
       me.

       Sasser told the Chinook school officials that if K.S."showed any signs of distress

at school," she had to provide assistance; and as a mandatory reporter, she had to

report signs of abuse.

       On March 7, Lloyd and Sefton took K.S. to Seattle Children's Hospital emergency

department. Lloyd and Sefton told the hospital staff that K.S. was slapping himself and

talking about poisoning himself. K.S. did not show any signs of self-injurious behavior.

While in the waiting room, K.S. sat quietly and colored. A hospital social worker

interviewed K.S. K.S. told the social worker he injured his ear by hitting himself

repeatedly to stay awake so he could watch a movie with his father. The hospital

released K.S. to Sefton and Lloyd.

       In mid-March, K.S. came to school with athletic socks on his hands. Hopkins

took off the socks. His hands were "red and worn and peeling and kind of swollen[ ]."

Hopkins sent K.S. to school counselor Rodriguez. K.S. told Rodriguez his father told

him not to take the socks off his hands. Rodriguez took the socks off his hands and

saw K.S.'s hands were bright red, "as if they had been burnt." K.S. told Rodriguez he

had to put his hands in hot water because he "upset his dad."

       On March 18, Sasser met with K.S. after he fell asleep on the playground during

recess. K.S. had bruises on his forehead and his hands were red and swollen. That

same morning, Lloyd and Sefton exchanged several text messages. Sefton reported

that a growth chart showed K.S. had lost weight since the last year but wondered if

someone had "changed" the chart to show weight loss. Sefton said, "Also, they think

the blenders are being given as punishment, rather then [sic] because we don't want


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No. 75111-5-1 (Consol. with No. 75116-6-1)/18

him to choke." Lloyd responded, "I've already talked to his teacher, what I told her was I

added smoothies to increase his calorie intake because he was refusing to eat his

healthy food because the nurse [was]feeding him junk and telling him we should too.

Stick with that."

       K.S. was not at school on March 19. Hopkins e-mailed Sefton and said she

"hoped [K.S.] was home that day getting rest." Hopkins told Sefton that K.S. fell asleep

at his desk the day before as soon as he got to school. Hopkins said K.S. fell asleep

again during recess and "it was very difficult to wake him." That day, Sefton called the

school. Sefton was "furious" that K.S. was sleeping at recess and said, "[M]y child

cannot sleep during school." Sefton said K.S. was not sleeping at night and permitting

K.S. to sleep at school would prevent him from sleeping at night.

       On March 20, K.S. had trouble walking when he arrived at school. An office

employee had to help K.S. to the classroom. When K.S. got to the classroom, Hopkins

said he "was very hunched, kind of just sideways,. ..just very out of it, very drowsy,

very weak." K.S. had socks on both hands. When K.S. "eventually" took off the socks,

Hopkins saw his hands looked "extremely irritated, burned," and he was too weak to

take the cap off a marker. Hopkins contacted Sasser. When Sasser came to the

classroom, K.S. was "tremoring, shivering, and .. . shaking all over." K.S. was too weak

to tie his shoes "he was tremoring so much" and looked exhausted. When Sasser left

the classroom, she told the principal, "I'm just going to be honest, . .. you have to get

him out of there before they kill him." The school principal called 911.




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No. 75111-5-1 (Consol. with No. 75116-6-1)/19

Police Investigation and Criminal Charges

       Auburn Police Department Officer Aldo Arroyo responded to the 911 call. Officer

Arroyo met with K.S. and CPS social worker Gonzalez. Officer Arroyo noticed K.S. had

a purple mark on the right side of his lip. When Officer Arroyo asked K.S. how he got

the "bruise," K.S. said that his father hit him. K.S. told Officer Arroyo it happened on the

way home from school the day before when K.S. leaned forward in the car to tie his

shoelaces. Sefton told K.S. to "lean back and quit moving." K.S. said his father

became"'really mad,'"struck K.S. in the mouth with an open hand, and K.S. started

crying. When Officer Arroyo asked K.S. if it hurt when his father hit him, K.S. said,

"Yes." K.S. told Officer Arroyo that when he told his father that his lip hurt, Sefton told

him to "stop crying and sit back."

       Officer Arroyo asked K.S. if his father usually hit him. K.S. said his father was

"always mad and was really scary." K.S. told Officer Arroyo his father "makes me dizzy"

by hitting him in the head. K.S. said Sefton hit him on the head "lots of times" and he

felt dizzy "for a long time" afterward. K.S. said his father hit him before school that day

because he wet the bed and got his sister's blanket dirty. K.S. said Sefton stripped off

his pajamas, spanked him "really hard," "threw" him in the shower, and forced him to

take a cold shower. K.S. was afraid that when he got home, his father would be mad at

him. Officer Arroyo asked K.S. who he would live with if he could choose, and K.S.

responded, "[Y]ou." Officer Arroyo took K.S. into protective custody.

       Gonzalez took photographs of K.S. and then transported K.S. to Seattle

Children's Hospital. Emergency department pediatrician Dr. Ron Kaplan examined K.S.

Both of K.S.'s hands were "swollen and red and inflamed and irritated." Dr. Kaplan said




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No. 75111-5-1 (Consol. with No. 75116-6-1)/20

KS."looked very thin and pale and had a very protuberant abdomen and sort of a

wasted appearance." The protuberant abdomen was significant—"as you start to get

malnourished and have inadequate protein intake, you get that swelling, your abdomen

starts to stick out." K.S.'s legs were swollen from the knees down and his skin had a

"ruddy brawny appearance," suggesting a protein deficiency. During the examination,

Dr. Kaplan discovered bruising on many different parts of his body. K.S. had bruises

around his mouth, on his foot, on his upper arm, on his lower back, on his buttocks, and

above his eyebrow. His hands and ear were red and swollen. The many bruises and

signs of malnourishment made it "pretty clear that it was suggestive of abuse." Hospital

staff took several photographs of K.S.

       Child abuse pediatrician Dr. Weister examined K.S. at Seattle Children's Hospital

the next morning on March 21. Dr. Weister reviewed the laboratory results that showed

elevated liver enzymes, low phosphorous levels, and low prealbumin levels. The results

were consistent with chronic malnutrition and suggested K.S.'s organs were being

affected by malnutrition.

       CPS removed K.S., R.L., and D.S. from Sefton and Lloyd. CPS placed R.L. with

her paternal grandparents Jerri and Randy Lloyd in Florida. CPS placed K.S. and D.S.

with Sefton's aunt and uncle Wendy and Charles Mosher. Wendy Mosher said K.S. did

not have food allergies and was not a messy eater. K.S. gained 10 pounds during the

first four weeks he lived with the Moshers.

      The State charged Sefton and Lloyd with assault of a child in the first degree of

K.S. between October 1, 2013 and March 20, 2014 in violation of RCW

9A.36.120(1)(b)(ii); assault of a child in the second degree of K.S. between October 1,



                                              20
No. 75111-5-1 (Consol. with No. 75116-6-1)/21

2013 and March 20, 2014 in violation of RCW 9A.36.130(1)(b); criminal mistreatment of

K.S. in the first degree between October 1, 2013 and March 20, 2014 in violation of

RCW 9A.42.020; one count of unlawful imprisonment of R.L. between April 1, 2011 and

March 20, 2014 in violation of RCW 9A.40.010(6) and .040; one count of unlawful

imprisonment of K.S. between April 1, 2011 and March 20, 2014 in violation of RCW

9A.40.010(6) and .040; and one count of unlawful imprisonment of D.S. between June

14, 2012 and March 20, 2014 in violation of RCW 9A.40.010(6) and .040. The State

also charged Sefton with rape of a child in the first degree of R.L. in violation of RCW

9A.44.073 and assault in the fourth degree of D.S. in violation of RCW 9A.36.041. The

State alleged the aggravating factors of a particularly vulnerable victim, manifest

deliberate cruelty, and an ongoing pattern of abuse against a family or household

member under RCW 9.94A.535(3)(b),(a), and (h)(i) and RCW 10.99.020.

Trial

        The lengthy jury trial began on January 27, 2016 and ended March 10, 2016.

The State called more than 35 witnesses to testify at trial, including Gildo Rey and

Chinook teachers and staff, school nurse Carrie Sasser, CPS social workers, doctors,

and family members. The court admitted into evidence over 100 exhibits, including

more than 150 photographs of K.S., text messages between Sefton and Lloyd, and

recorded videotaped police interviews of Sefton and Lloyd.

        School district physical therapist Laskey testified Sefton was "very negative"

about K.S. Laskey testified Sefton said K.S. was "violent" and "a bad kid" and Sefton

"seemed more interested in talking about the things that [K.S.] was doing poorly."

Laskey testified Sefton's description of K.S. "just didn't match up" with the child she



                                            21
No. 75111-5-1 (Consol. with No. 75116-6-1)/22

knew as "such a sweet kid." Laskey never observed K.S. behaving violently or

aggressively or engaging in acts of self-harm.

       Emergency medicine pediatrician Dr. Jonathan Chalett testified that Sefton and

Lloyd brought five-year-nine-month-old K.S. to the Mary Bridge Children's Hospital

emergency room on February 14, 2013. Sefton and Lloyd said K.S.'s behavioral

problems escalated after a recent visit with his biological mother. According to Sefton

and Lloyd, K.S. was hitting D.S., torturing cats, hanging stuffed animals, and talking

about poisoning himself. Dr. Chalett met with K.S. Dr. Chalett testified K.S. was "well

groomed," had a "calm manner," and was "cooperative" and "attentive." K.S. was "alert,

and he was appropriate. He seemed to be happy. And when 1 was in the room with

him, he was playing with crayons." K.S. displayed none of the symptoms Sefton and

Lloyd reported. K.S. denied having thoughts of harming himself or others. Dr. Chalett

testified the inconsistency between the behaviors Sefton and Lloyd reported and the

behaviors he observed raised concerns.

      Sound Mental Health therapist McMahan had family sessions with Sefton and

K.S. McMahan testified Sefton struggled to "even acknowledge or recognize when

[K.S.] was doing something positive." McMahan testified she did not have any concerns

about how K.S. behaved and he did not display self-harming behaviors. Because of the

discrepancy between the child she treated and the child Sefton described, McMahan

believed there was "maybe a cover-up for what was really going on" in the home.

       Family physician Dr. Neil Golan testified. Dr. Golan first saw K.S. on July 16,

2012. Five-year-old K.S. weighed 50 pounds and was in the 90th percentile for weight.

Dr. Golan did not diagnose K.S. with any food allergies or intolerance and never



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No. 75111-5-1 (Consol. with No. 75116-6-1)/23

recommended that Sefton and Lloyd place K.S. on a restricted diet. Over the next nine

months, K.S. went from 50 pounds to 56 pounds. At the February 14, 2013 visit, K.S.

weighed 55 pounds and "hover[ed] at about the same weight for about a year." Dr.

Golan testified:

       It's concerning when you see weight loss in a child. You should be seeing
       at this age weight gain gradually over time. If you have one outlier, you
       can often wait and see if a child catches up. It's not unusual to see an
       occasional abnormality.

When Dr. Golan saw K.S. on March 3, 2014, K.S. had grown several inches taller since

his first visit but weighed only 51 pounds, putting him in the 50th percentile for weight.

Dr. Golan expressed regret about K.S.—"I feel it's my job to take care of my patients,

and I'm not so sure I did such a good job."

       Seattle Children's Hospital child abuse pediatrician Dr. Weister testified the

March 20, 2014 laboratory results indicated K.S.'s organs were Isiubstantially impaired"

as a result of chronic starvation. The liver enzymes were mildly elevated. Dr. Weister

testified, "Mery often with malnourishment you can have some either inflammation or

some elevated liver enzymes just from starvation alone." The phosphorous level was

low, which "is one of the findings that we watch very carefully in severely malnourished

children, because that phosphorous level, as you refeed children, can bottom out as the

fluids shift and change in your body." Dr. Weister testified that low phosphorous levels

in children recovering from malnourishment could lead to slowing heart rate or

arrhythmia. The prealbumin levels were low, which "is an indicator of poor protein

nutrition." Dr. Weister explained the low prealbumin meant there was not "enough

protein in the blood to keep the fluid in the blood vessels," resulting in the swelling of

K.S.'s feet, ankles, and legs and the "brawny appearance of the skin."


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No. 75111-5-1 (Consol. with No. 75116-6-1)/24

       Dr. Weister described the difference between child abuse and child torture. Child

abuse "tends to be intermittent and sporadic. . .. Torture is much more of a systematic

and progressive process by which children sustain ongoing and progressive and

escalating physical abuse, psychological abuse." Dr. Weister testified torture can

include "isolation from school, family activities, deprivation, things like food, water, food

that other people in the family have." Torture can also include "other kinds of isolation

within the family, such as scapegoating," "restriction," or degradation, such as "being

called names." Dr. Weister testified K.S.'s "situation had all the hallmarks of child

torture."

       Community and family members testified about how Lloyd and Sefton treated

K.S. Waitress Renee Jesionowski testified that when the family was at the restaurant
                                 .-I




where she works sometime between late February and early March 2014, Lloyd ordered

a sushi dinner for everyone except K.S. Lloyd told Jesionowski K.S. was "not eating"

because he had food allergies. While the family ate dinner at the restaurant, no one in

the family spoke to K.S. and Sefton would not allow K.S. to have crayons to color.

       Elyse McKenna has a child who attended Gildo Rey. McKenna saw Lloyd, D.S.,

and K.S. in the school office. Lloyd "was cuddling and coddling [D.S.], but the whole

time she was looking at[K.S.] like just horrible, . ..just this mean kind of look on her

face." K.S. looked "helpless and neglected." McKenna testified that when she saw the

family at the grocery store, K.S."had his head down, and he was just kind of shuffling

along, and his dad [was] kind of pushing him, pushing on him a little bit, telling him to

keep his head down." Another time, McKenna saw the family eating lunch at a Sam's

Club. The family was "all having lunch[,] eating and laughing and feeding the little one



                                              24
No. 75111-5-1 (Consol. with No. 75116-6-1)/25

and stuff," but K.S. was "kind of off away from the table with his back towards the

family." McKenna testified K.S. was not eating and no one in the family was talking to

him. McKenna thought K.S. was "being punished for something."

       Mike Cordle, a maintenance technician at the apartment complex where the

family lived, testified that sometime in 2014, he saw Sefton "forcefully bringing [K.S.] to

the foot of this great big tree,... bring him to a stop right underneath the tree, and then

reach down and — the dad grabbed a handful of dirt and shoved it in the kid's face."

Sefton "smeared" the dirt all over K.S.'s face and K.S. "just grimaced, you know, like it

was — he deserved it." While Sefton was "dragging" K.S. by the forearm, K.S. was

"[s]huffling along, trying to keep from falling." Sefton then "[m]arched" K.S. back to the

apartment. Cordle testified that approximately one to two months later, Sefton brought

K.S. to the office. K.S."had one sock over each arm, and it was taped above... the

elbow." K.S. was "cradling his arms with his fists up towards his chin." K.S. appeared

"very subdued" and "was quiet the whole time." Sefton told Cordle the socks were "to

help [K.S.] learn to eat properly."

       Sefton's sister Melissa Valliere testified that Sefton and Lloyd "never" said

"anything positive" about K.S., they were "always saying how [K.S.] was a bad kid or he

was doing bad things. And it was stuff that — he's a kid. It was stuff that should have

been, you know, let him be a kid, it's not a big deal." Valliere testified that while at a

buffet restaurant in approximately September 2013, Sefton and Lloyd allowed K.S. to

eat only a small plate of vegetables. The other children ate "whatever they wanted" and

went through the buffet line "as many times as" they wanted. Several children were

"running around" and when K.S."wanted to play," Sefton and Lloyd took him "off into a



                                             25
No. 75111-5-1 (Consol. with No. 75116-6-1)/26

corner" and told him he "couldn't play with people." Valliere felt they were "humiliating

him in front of everybody in the restaurant because people were watching what was

happening." When Valliere asked why K.S. was not allowed to eat more, Sefton and

Lloyd told her to "mind [her] own business." Valliere decided to "stay[]away from them

because we don't see eye to eye."

       Eight-year-old K.S. testified that he did not like living with Lloyd and Sefton. K.S.

said, "I hate them" because "[t]hey did bad things to me." When asked,"What type of

things did they do that you did not like," K.S. answered,"Whacked me with a belt." K.S.

testified neither Lloyd nor Sefton ever told him they loved him. K.S. said they never said

"nice things" to him and only said "[mjean things." K.S. testified that when he lived with

Lloyd and Sefton, he did not get to play on sports teams, have friends come over, or go

on field trips. K.S. did not want to talk "about sit-ups and push-ups." K.S. said Sefton

gave him cold "bath[s]." K.S. testified he did not "always get to sleep in a bed with a

blanket and a pillow" but everyone else in the family did.

       K.S. testified Lloyd and Sefton did not let him eat food. K.S. said he "couldn't ...

eat food" because "[t]hey didn't let me." K.S. testified that Sefton put food in the blender

and "blended it up"for him. K.S. said he did not want to eat the blended food because it

was "disgusting." But if K.S. did not eat the blended food, he did not get any other food.

K.S. testified Sefton and Lloyd treated him worse when he complained about being

hungry.

       Ten-year-old R.L. testified that Lloyd grabbed K.S. by the ear and pulled his ear

as punishment and K.S. screamed because it hurt. R.L. said Lloyd told her K.S. was "a

bad kid" who intentionally hurt himself to get attention. R.L. testified Sefton and Lloyd



                                            26
No. 75111-5-1 (Consol. with No. 75116-6-1)/27

spanked her and K.S. on "the bottom, on their sides, and their backs." R.L. said that

"[m]ostly my mom... did the spanking" and "[s]ometimes she would hit us with her

nails." R.L. testified she was afraid of her mother because Lloyd hurt R.L. and K.S.

       R.L. said Sefton came into her room at night and touched her "girl part." During

cross-examination, R.L. testified that she first disclosed the touching to her therapist in

Florida.

       Jerri Lloyd, the mother of Wesley Lloyd, testified that after Wesley died, Lloyd

and R.L. immediately moved to Washington.8 Jerri testified R.L. lived with her and had

been in therapy since July 2014. On cross-examination, Jerri admitted she spoke with

R.L.'s counselor about preparing R.L. for trial. Jerri also acknowledged she asked the

counselor to find out more information about Sefton in preparation for trial.

       Auburn Police Department Detective Douglas Faini testified about the police

investigation and the recorded interviews with Sefton and Lloyd. Detective Faini and

Detective Francesca Nix interviewed Sefton and Lloyd separately on March 27, 2014.

Detective Faini testified about his approach to the interviews. Detective Faini testified

that he accepted Lloyd's statements as true to encourage her to talk about what

happened. By contrast, Detective Faini purposely said few words and used short

phrases when interviewing Sefton to keep him talking.

       At the conclusion of the case in chief, the State played the lengthy videotaped

interviews with Sefton and Lloyd for the jury. The transcript of the interview with Sefton

is 298 pages and the transcript of the interview with Lloyd is approximately 80 pages.




       8 We   refer to Jerri Lloyd and Wesley Lloyd by their first names for clarity.


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No. 75111-5-1 (Consol. with No. 75116-6-1)/28

       The detectives began interviewing Sefton at 12:38 p.m. on March 27. Sefton told

the detectives that after K.S. choked on the muffin from the "trashcan" at school,"we

started putting his breakfast in the blender at home." Sefton said they also blended

K.S.'s food "so that we can control exactly what nutrients and stuff he is getting in his

diet." Sefton said K.S.'s breakfast consists of blended bread, hot dogs, vegetables,

water, and vegetable oil. Sefton said Lloyd is a professionally trained French chef so

she is the "one who decided" the ingredients for K.S.'s blended meals and then "actually

showed" Sefton how to make them. According to Sefton, the diet followed "the same

guidelines given to us by a nutritionist [R.L.] had seen a few months prior."

       The interview with Lloyd began at 5:05 p.m. on March 27. After approximately an

hour, Lloyd told Detective Faini and Detective Aaron Williams she did not know about

Sefton blending breakfast for K.S.

       At approximately 6:00 p.m., Detective Faini returned to the interview with Sefton.

Detective Faini asked Sefton why Lloyd was unaware of the blended meals. Detective

Faini told Sefton that everything Lloyd said was consistent except for the part about her

food expertise. Detective Nix said, "[Y]ou know what that indicates to me? That

indicates to me that[Lloyd] knows she's been doing something wrong."

       At 6:34 p.m., Detective Faini and Detective Nix returned to the interview with

Lloyd. Detective Nix told Lloyd that according to Sefton, it was her idea to give K.S. the

blended food. Lloyd responded that she was not home during breakfast and K.S. is not

on a liquid diet. Detective Nix told Lloyd, "You can't deny this.. . . Deniability is not a

way out in this one." Detective Faini added,"We are looking at, are you purposely

abusing this child to the point of starvation where he is malnourished and he has to be



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hospitalized." Lloyd answered,"No. I'm not." Later, Lloyd claimed K.S. and R.L. both

get snacks after school. Detective Faini said,"Nope. There is no snacks. Absolutely

no snacks. Here's the problem. I take what[Sefton] says and I kind of take what you

said and then I take what the doctors say and I've got neglect because [Sefton] is not

making any sense." The detectives ended Lloyd's interview at 7:06 p.m.

       At 7:10 p.m., Detective Faini and Detective Nix informed Sefton that Lloyd was

"under arrest. And you're under arrest for neglect of a child felony." Detective Faini told

Sefton that Lloyd "made some additional comments" and "it is quite clear that!, I believe

the food issue, the chopping up in a blender was not in an effort to make sure [K.S.] had

adequate food but it's a form of discipline." Detective Faini said Lloyd "has a completely

different story as to what was going on and why it was going on. And.. . claims

ignorance to everything." The detectives told Sefton that Lloyd denied giving him the

recipe for the blended meals or showing him how to make the "smoothies." The

detectives asked,"How can you guys be so off" and,"Why would she lie"?

       I'm gonna tell you right now you tried to take this story coupled with her
       story then take everything the medical community has to say, and what
       your kid is saying there's no way they're gonna believe that you were
       doing everything you could to keep him... properly nutritioned. No way.

Detective Faini said that if Lloyd "is lying then why is she lying? And I'm gonna tell you

what the answer is gonna be because she knew [Sefton] was so wrong she doesn't

wanna come to grips with it." The interview ended at 7:36 p.m.

       Detective Faini interviewed Lloyd again the next morning, March 28. Detective

Faini told Lloyd:

       According to [Sefton][the children] either had split pea soup at dinner or
       he does a blended meal and according to him [K.S.] is not allowed to have
       normal food at dinner. Uhm, or even a plate because of the concern of


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No. 75111-5-1 (Consol. with No. 75116-6-1)/30

       him self harming and choking himself. ... So I need to know what's going
       on.

Detective Faini told Lloyd, "[A]t this point what We, what we know from talking to [K.S.]

...[i]s much of what[Sefton] is saying...[i]s true."

       [B]ecause [K.S.] is telling us the same thing. That if[K.S.] doesn't drink
       the nasty shake there is no food. That if he sneaks in a snack a
       punishment is you don't get the next meal or to eat the next day. That if
       he has issues with math there is a punishment of food by [Sefton]. You
       need to understand.

Lloyd responded,"What I do when I make dinner is I chop the food" for K.S. "so he can't

choke on it." Lloyd denied K.S."had lost 15 pounds" during the recent school year.

Lloyd said that during the past year, she was not always home for dinner because she

was at work. Lloyd told Detective Faini that Sefton "had asked me what to make. What

to put in smoothies and it's what I told him was a handful of vegetables, a handful of

fruit, a protein and a little honey if it needs it." Lloyd said she disagreed with Sefton

about punishing K.S. by withholding food.

       When [Sefton] had talked about not giving [K.S.] dinner because he was in
       trouble I told [Sefton]that that's [sic] an acceptable punishment. That it
       may have been something that our parents did but it's not an acceptable
       punishment.

       Sefton and Lloyd testified. Sefton testified he had to "discipline" K.S. because

K.S."was lashing out violently at himself, at [R.L], at [D.S], at me, at[Lloyd]." Sefton

said he never withheld food from K.S. as punishment and when K.S. went to bed

without dinner, it was because he refused to eat. Sefton testified that after choking on

the muffin at school, K.S. stopped eating breakfast and lunch at school because Sefton

no longer trusted the school to monitor him safely. Sefton said K.S. threatened to

commit suicide by making himself choke. Sefton admitted that after "the choking



                                             30
No. 75111-5-1 (Consol. with No. 75116-6-1)/31

incident," he prepared blended meals for K.S. that consisted of vegetables, peanut

butter, hot dogs or baloney, olive oil, and water. Sefton admitted spanking K.S. and

making him do push-ups and sit-ups. Sefton testified, "[W]e also added running" to

"help him burn off energy." Sefton said he never intentionally deprived K.S. of sleep.

Sefton said K.S. was tired in school because he stayed awake "picking on" R.L.

       Lloyd testified R.L. and K.S. sometimes fought and would have "bumps or

bruises from getting into fights with each other." Lloyd said K.S. was "aggressive"

toward D.S. and would "hit or kick or shove" D.S. Lloyd said that when she and Sefton

put K.S. in time-outs to punish him, K.S. would "beat his head against the wall or slap

himself or bite himself." To prevent K.S.from hurting himself, Sefton and Lloyd started

having K.S. do sit-ups or push-ups instead of regular time-outs.

       Lloyd testified she is a trained chef. "I am classically French trained. I went to

the Cordon Bleu culinary school in Seattle." Lloyd testified she was not aware Sefton

prepared blended meals for K.S. Lloyd said she "would make smoothies from time to

time" as snacks for the children, "normally with fruit in them," but she did not teach

Sefton to "make these blenders that contained hotdogs, vegetable oil, broccoli, and

bread." Lloyd said that on the nights when she was home, she made dinner for the

family. When asked if the children ever "came to you and said they hadn't gotten a

meal, such as lunch or dinner," Lloyd said there was "maybe two or three times" when

she came home from work at lunchtime, Sefton was "too busy with [D.S.] while [D.S.]

was teething," and the children told her they "hadn't had lunch." Lloyd testified,

"Occasionally, I'd get home from work... and something would have happened and

they wouldn't have had dinner. And I'd have to throw something together real quick to



                                             31
No. 75111-5-1 (Consol. with No. 75116-6-1)/32

feed them." Lloyd testified the children never came to her and said, "[W]e didn't get

breakfast." According to Lloyd, "neither of the kids ever really came to me and

complained about anything."

       At the conclusion of the case, the court granted the State's motion to dismiss

unlawful imprisonment of D.S., count six.

       The court instructed the jury on the charged crimes and the aggravating factors.

The court agreed to give jury instructions on the lesser included crime of criminal

mistreatment of K.S. in the second degree.

       The jury convicted Lloyd and Sefton of assault of a child in the first degree of

K.S., assault of a child in the second degree of K.S., and criminal mistreatment in the

first degree of K.S. The jury found Lloyd and Sefton not guilty of unlawful imprisonment

of R.L. and K.S. The jury found Sefton not guilty of assault in the fourth degree of D.S.

The jury could not reach a unanimous verdict on the charge against Sefton of rape of a

child in the first degree of R.L. By special verdict, the jury found the aggravating factors

for the convictions of assault of a child in the first degree and criminal mistreatment in

the first degree of a particularly vulnerable victim, deliberate cruelty, and an ongoing

prolonged pattern and practice of physical abuse of a household or family member.

Specifically, the jury found "a pattern or practice" resulting in "bodily harm" to K.S.

"greater than transient physical pain or minor temporary marks" and "equivalent to that

produced by torture."

       At sentencing, the court granted the motion to dismiss the conviction of assault of

a child in the second degree of K.S. as barred by double jeopardy. The court imposed a

concurrent exceptional sentence for Sefton and Lloyd of 240 months on assault of a



                                             32
No. 75111-5-1 (Consol. with No. 75116-6-1)/33

child in the first degree of K.S. and 120 months on criminal mistreatment of K.S. in the

first degree. The "Findings of Fact and Conclusions of Law for Exceptional Sentence"

as to Sefton and Lloyd state, in pertinent part:

      The jury has found the following aggravating circumstances beyond a
      reasonable doubt, pursuant to RCW 9.94A.537 as to both Counts 1 & II:
      Particularly Vulnerable Victim RCW 9.94A.535(3)(b); Deliberate Cruelty
      RCW 9.94A.535(3)(a), and Ongoing Pattern or Practice of Physical Abuse
      for a Prolonged Period of Time RCW 9.94A.535(3)(h)(i) committed against
      a family or household member; a crime of domestic violence as defined
      under RCW 10.99.020.

              Absent imposition of an exceptional sentence, the jury's findings of
       these three aggravating factors as to Counts 1 and 11 would essentially be
       disregarded for purposes of sentencing. Moreover, the defendant[s']
       criminal conduct does not warrant imposition of a standard range
       sentence and to impose a standard range sentence would be unjust.
       These findings constitute substantial and compelling reasons justifying an
       exceptional sentence.

              The court finds that the exceptional sentence is consistent with and
       in furtherance of the interests of justice and the purposes of the
       Sentencing Reform Act[ of 1981, chapter 9.94A RCW].

       Sefton and Lloyd appea1.9

                                             ANALYSIS

SEFTON APPEAL

       1. Opinion Testimony

       Sefton seeks reversal of the jury conviction for criminal mistreatment of K.S. in

the first degree. Sefton asserts that during the videotaped interviews played to the jury,

the detectives expressed improper opinions on guilt. The State argues that because

Sefton did not timely object at trial, he cannot raise this issue for the first time on appeal.

We agree with the State.



       9 Sefton   and Lloyd adopt each other's arguments on appeal.


                                                  33
No. 75111-5-1 (Consol. with No. 75116-6-1)/34

       Improper opinion testimony regarding a defendant's guilt may constitute

reversible error because such evidence violates the constitutional right to an

independent determination of the facts by the jury. State v. Kirkman, 159 Wn.2d 918,

927, 155 P.3d 125 (2007); State v. Montaomery, 163 Wn.2d 577, 591, 183 P.3d 267

(2008). "Defendants fail to preserve an issue for appeal when they do not object to

impermissible opinion testimony at trial." State v. Embry, 171 Wn. App. 714, 739, 287

P.3d 648(2012). To raise an error for the first time on appeal, Sefton must demonstrate

that the error was "manifest" and truly of constitutional dimension by identifying the

constitutional error and showing how the alleged error actually affected his rights at trial.

RAP 2.5(a)(3); Kirkman, 159 Wn.2d at 926-27.

       Pretrial, the court granted Sefton's motion to exclude police witness opinion

testimony "of the existence of probable cause." The State played the videotaped police

interviews of Sefton and Lloyd at the conclusion of the State's case in chief. The

prosecutor told the court that the State had intended to play the recordings in rebuttal,

but after "the defendants in opening indicated they were going to testify" and "after

trying to streamline the timing of the State's case .. . after conversation with defense,"

the State decided to play the videos in its case in chief. Without any objection from

defense, the court admitted the videotaped recordings and the transcripts of the

interviews of Sefton and Lloyd.

       The State played Sefton's six-hour videotaped police interview beginning March

1 through March 2, 2016. After playing almost all of Sefton's interview, Sefton's




                                             34
No. 75111-5-1 (Consol. with No. 75116-6-1)/35

attorney first raised an objection to the detectives' opinion on guilt, but agreed to

address the issue during cross-examination.

                     [SEFTON'S ATTORNEY]: I might be incorrect, but I
       thought in my trial brief that 1 included an officer's opinion as to whether
       my client's guilty should not come in and I think it has.
                      THE COURT: You didn't object to the exhibit. I didn't
       know it was in the exhibit.
                     [SEFTON'S ATTORNEY]: Okay, okay.
                      THE COURT: I mean, I think you can handle it on cross.
                     [SEFTON'S ATTORNEY]: Yeah. Okay.
                      THE COURT: This certainly can be a technique. They
       don't necessarily have to believe what they're saying.
                     [SEFTON'S ATTORNEY]: Fair enough, fair enough.
               I wanted to raise it because 1— considering myself to be in error,
       your Honor.
                      THE COURT: And I think you should talk to him on a
       break about those issues before you cross.
               I understand what you're saying, and I don't know what his
       answer's going to be.
               Ms.[Prosecutor], maybe you can help us out.
                     [PROSECUTOR]: Well, two things. I think we had a
       separate and distinct[CrR] 3.5 hearing, and the Court wholly admitted the
       entirety of the statement. And then there were no further motions in limine
       to limit any aspects of this recording.
               Moreover, the detective is going to testify that this whole entire
       interview was a — he employed various techniques, which included
       allowing the defendants to basically talk themselves to death. And then
       he went back and tried to attack them on certain levels, agreeing with
       them on certain facts. Like, obviously, we don't necessarily believe that
       Genevieve Jacobs-Smith is a domestic violence batterer, for example, but
       that is a technique the detective is employing in order to try to get the
       defendant to admit guilt in intentionally using food as a form of
       punishment.
                      THE COURT: And I've heard that a lot, and they don't
       have to believe what they're asking or what they're telling him, it's part of
       their technique.
                What I don't want is you to assume that opens the door, then, to
       saying, but did you believe that.
                      [PROSECUTOR]: Of course not.
                      THE COURT: And that's where I think your motion in
       limine — so I think — I think we're okay.
                      [SEFTON'S ATTORNEY]: Okay.
                      THE COURT: All right.



                                             35
No. 75111-5-1 (Consol. with No. 75116-6-1)/36

                    [SEFTON'S ATTORNEY]: I appreciate you hearing the
       motion, your Honor.
                    THE COURT: No problem.

       On cross-examination, Sefton established the detectives used "ruses" and other

interrogation tactics in the interviews rather than expressing their personal beliefs.

Sefton's attorney examined Detective Faini about the interrogation tactics he used

during Sefton's interview. Sefton's attorney asked Detective Faini whether he lies

during interrogations to seek a confession. Detective Faini confirmed that he lies during

interrogations "to build trust." As an example, Detective Faini complained about CPS

during the interview to make Sefton feel understood. In another example, Detective Doll

said at the end of Sefton's interview,"You didn't intend to hurt him it just flat got away."

Detective Faini explained Detective Doll was not "sincere" but only continuing the same

interview "methodology" that Detective Faini was using when he told Sefton earlier, "I

think it got away from you [Sefton]. I don't think you're a bad person I think you got into

a bad situation over your head and it got away from you."

       On appeal, Sefton concedes he did not request a motion in limine to exclude

improper opinion testimony on guilt or object before the State played the videotaped

interviews. In Montgomery, the court held improper opinion testimony on guilt "does not

establish actual prejudice" where the defense did not object and the court instructed the

jury they are the sole judges of the credibility of witnesses. Montgomery, 163 Wn.2d at

594-96. As in Montgomery, the failure to timely object bars Sefton from claiming error.

RAP 2.5(a); Montgomery, 163 Wn.2d at 595. Further, the court properly instructed the

jury as in Montgomery that jurors "are the sole judges of the credibility of each witness."




                                             36
No. 75111-5-1 (Consol. with No. 75116-6-1)/37

Montgomery, 163 Wn.2d at 595-96. Sefton waived his right to raise the issue for the

first time on appeal and he cannot show manifest constitutional error or prejudice.

       2. Ineffective Assistance of Counsel

       In the alternative, even if the objection was not preserved, Sefton argues trial

counsel provided ineffective assistance by failing to timely object to the interviews. A

criminal defendant has the right under the Sixth Amendment to the United States

Constitution to effective assistance of counsel. Strickland v. Washington, 466 U.S. 668,

685-86, 104 S. Ct. 2052, 80 L. Ed. 2d 674(1984). There is a strong presumption that

counsel's representation was effective and competent. State v. McNeal, 145 Wn.2d

352, 362, 37 P.3d 280(2002). Legitimate trial strategy or tactics cannot be the basis for

an ineffective assistance of counsel claim. McNeal, 145 Wn.2d at 363.

       To demonstrate ineffective assistance of counsel, the defendant must show both

deficient performance and resulting prejudice. Strickland, 466 U.S. at 687; State v.

McFarland, 127 Wn.2d 322, 334-35, 899 P.2d 1251 (1995). Deficient performance is

representation that falls below an objective standard of reasonableness based on

consideration of all the circumstances. State v. Thomas, 109 Wn.2d 222, 226, 743 P.2d

816 (1987). To establish prejudice, the defendant must show a reasonable probability

that the result would have been different without the error. State v. Lord, 117 Wn.2d

829, 883-84, 822 P.2d 177 (1991). If a defendant fails to satisfy either part of the test,

our inquiry ends. State v. Hendrickson, 129 Wn.2d 61, 78, 917 P.2d 563(1996).

       The attorney's cross-examination of Detective Faini and Sefton's closing

argument demonstrate strategic reasons not to object to playing the entirety of the

recorded interview. During the lengthy interview, Sefton never admits that he withheld



                                            37
No. 75111-5-1 (Consol. with No. 75116-6-1)/38

food from K.S. as punishment. His position in the interview is consistent with his trial

testimony.

       During cross-examination, the attorney established that even when Detective

Faini employed interrogation tactics meant to reveal the truth, Sefton's position

remained consistent. On cross-examination, Detective Faini said his initial approach

was to "soften the interview" with Lloyd by being "social" with her. Detective Faini

testified that when he and Detective Nix returned to Lloyd's interview after speaking with

Sefton, they changed their approach. Detective Faini testified, "And so at this point we

decided to change it up with her a little bit and see if we can go ahead and start pushing

back with, we know this is a lie, we know this is a lie, here's some information, and start

pressing back." Detective Faini stated,"And so we decided to confront[her] a little bit

and see if we can change her mindset to be honest with us." Detective Faini admitted

he "exaggerate[d] the truth" in confronting Lloyd. Detective Faini conceded another

interrogation tactic he used was to give Lloyd just two options, "either you're complicit or

you turned a blind eye."

       Detective Faini testified, "I'm not trying to get a confession, I'm just trying to get

the truth out. And my attempt is to try to enact some type of reaction where he would

be more truthful." Counsel asked,"However,[Sefton] didn't change from his position

that he gave [K.S.] the blended drinks because of a choking issue. . . even with that"?

Detective Faini responded, "Correct."

       During closing argument, Sefton's attorney specifically asked the jury to view the

videotaped interview again:

       1 will ask you, if you review the video again, you know, do it again, but
       check out Mr. Sefton when he gets the news that he is... under arrest for


                                              38
No. 75111-5-1 (Consol. with No. 75116-6-1)/39

       these issues, and the way that he holds himself and the way that he says,
       it was about choking, it was about choking. He never changed his
       position. I'm going to ask you to consider his demeanor absolutely,
       please, in that video, in the courtroom, on the witness stand. And, you
       know, it doesn't comport with this mad man, this terrible, angry man as
       he's been characterized here.

       We conclude Sefton cannot establish ineffective assistance of counsel.

       3. Unanimity: Assault of a Child in the First Degree

       Sefton argues the trial court violated his right to a unanimous jury verdict for

assault of a child in the first degree of K.S. Sefton contends that because witnesses

testified about at least three possible injuries that could have resulted in substantial

bodily harm to K.S., the court erred in failing to give a unanimity instruction.

       A defendant may be convicted only when a unanimous jury concludes the

defendant committed the criminal act charged in the information. State v. Kitchen, 110

Wn.2d 403, 409, 756 P.2d 105(1988). If the State presents evidence of multiple acts

that could be the basis of one charged crime, either the State must tell the jury which

act to rely on or the court must instruct the jury to agree on a specific criminal act.

Kitchen, 110 Wn.2d at 409. However,"the State need not make an election and the trial

court need not give a unanimity instruction if the evidence shows the defendant was

engaged in a continuing course of conduct." State v. Fiallo-Lopez, 78 Wn. App. 717,

724, 899 P.2d 1294(1995).

       The State charged Sefton and Lloyd with assault of a child in the first degree in

violation of RCW 9A.36.120(1)(b)(ii). The information alleged:

              That the defendants LORI BYLYNN LLOYD and CHRISTOPHER
       JOEL SEFTON and each of them in King County, Washington, between
       October 1, 2013 and March 20, 2014, being 18 years of age or older, did
       intentionally assault and cause substantial bodily harm to K.S.(DOB
       5/3/07), a child under age 13, and the defendants had previously engaged


                                             39
No. 75111-5-1 (Consol. with No. 75116-6-1)/40

       in a pattern or practice of(a) assaulting K.S.(DOB 5/3/07), which assaults
       resulted [in] bodily harm that is greater than transient physical pain or
       minor temporary marks, or (b) causing K.S.(DOB 5/3/07) physical pain or
       agony that is equivalent to that produced by torture.

       RCW 9A.36.120 states, in pertinent part:

      (1) A person eighteen years of age or older is guilty of the crime of
      assault of a child in the first degree if the child is under the age of thirteen
      and the person:
             (a) Commits the crime of assault in the first degree, as defined in
      RCW 9A.36.011, against the child; or
             (b) Intentionally assaults the child and either:
              (i) Recklessly inflicts great bodily harm; or
              (ii) Causes substantial bodily harm, and the person has previously
      engaged in a pattern or practice either of(A) assaulting the child which
      has resulted in bodily harm that is greater than transient physical pain or
      minor temporary marks, or(B)causinq the child physical pain or agony
      that is equivalent to that produced by torture.Em

"Substantial bodily harm" is defined as "bodily injury which involves a temporary but

substantial disfigurement, or which causes a temporary but substantial loss or

impairment of the function of any bodily part or organ, or which causes a fracture of any

bodily part." RCW 9A.04.110(4)(b). The Washington Supreme Court has held the term

"substantial" "signifies a degree of harm that is considerable and necessarily requires a

showing greater than an injury merely having some existence." State v. McKaque, 172

Wn.2d 802, 806, 262 P.3d 1225(2011).

       In State v. Kiser, 87 Wn. App. 126, 940 P.2d 308(1997), we held that assault of

a child under RCW 9A.36.120(1)(b)(ii) is the culmination of a pattern or practice of

assaulting or torturing a child, it is not a single act. Accordingly, because assault of a

child requires proof of a continuing course of conduct, as a general rule, a unanimity

instruction is not necessary. Kiser, 87 Wn. App. at 130; see also 11 WASHINGTON



       10 Emphasis added.


                                             40
No. 75111-5-1 (Consol. with No. 75116-6-1)/41

PRACTICE: WASHINGTON PATTERN JURY INSTRUCTIONS: CRIMINAL 35.35.03 cmt. at 560

(4th ed. 2016).

       In Kiser, the defendant was convicted of assault of a child in the first degree for

the abuse of his son. Kiser, 87 Wn. App. at 128-29. The court held that because the

crime necessitates "a previous pattern or practice of causing pain[,]. . . it is not

necessary for all jurors to agree on what act was the principal assault." Kiser, 87 Wn.

App. at 130.

       RCW 9A.36.120(1)(b) requires proof of a principal intentional assault
       which causes substantial bodily harm, and a previous pattern or practice
       of causing pain. The crime thus is defined not by a single act, but by a
       course of conduct. The definition of the crime permits the State to charge
       an entire episode of assaultive conduct as one count. The jurors must all
       find a principal act resulting in substantial bodily harm preceded by a
       pattern or practice of other assaultive acts. But it is not necessary for all
       jurors to agree on what act was the principal assault.

Kiser, 87 Wn. App. at 130.11

       However, we held that a unanimity instruction may be required where the

defendant has different defenses to different episodes of assault. Kiser, 87 Wn. App. at

130.

       Here, as in Kiser, Sefton and Lloyd were charged with assault of a child in the

first degree in violation of RCW 9A.36.120(1)(b)(ii). Based on the testimony of the

witnesses who observed the injuries to K.S.'s face, ear, forearms, and hands, the

evidence showed the assaults took place in a short period of time between late

February and March 2014. Witnesses observed the bruising and "nail marks" on K.S.'s

ear and small round bruises on his forearms on February 26, 2014; saw K.S. come to

school with red, burned hands in mid-March; and noticed bruises on K.S.'s face and his

       11 Emphasis in original.


                                             41
No. 75111-5-1 (Consol. with No. 75116-6-1)/42

red swollen hands on March 18 and again on 20. Neither Sefton nor Lloyd asserted

different defenses to the different episodes of assault. We conclude a jury unanimity

instruction was not necessary in this case and affirm the conviction of assault of a child

in the first degree.

       4. Criminal Mistreatment in the First Degree

       Sefton asserts sufficient evidence does not support the alternative means of

committing criminal mistreatment in the first degree. Sefton claims criminal

mistreatment in the first degree is an alternative means crime as to the specific "basic

necessities of life" that were withheld.12 Sefton contends the trial court should have

either instructed the jury it must unanimously agree to the means or given a special

verdict form identifying the means relied on.

       An alternative means crime is a crime that provides the "'proscribed criminal

conduct may be proved in a variety of ways.'" State v. Peterson, 168 Wn.2d 763, 769,

230 P.3d 588(2010)(quoting State v. Smith, 159 Wn.2d 778, 784, 154 P.3d 873

(2007)). Where a crime may be committed in more than one way, there must be jury

unanimity as to guilt for the crime charged. Kitchen, 110 Wn.2d at 410. As a general

rule, alternative means crimes are set forth in a statute stating a single offense "under

which are set forth more than one means by which the offense may be committed."

Smith, 159 Wn.2d at 784.

       Under RCW 9A.42.020(1), a person commits "criminal mistreatment in the first

degree" by "withholding any of the basic necessities of life." RCW 9A.42.010(1) defines

"basic necessities of life" as "food, water, shelter, clothing, and medically necessary



       12   RCW 9A.42.020.


                                            42
No. 75111-5-1 (Consol. with No. 75116-6-1)/43

health care, including but not limited to health-related treatment or activities, hygiene,

oxygen, and medication." Washington courts have "resisted efforts to interpret statutory

definitions as creating additional means, or means within a means, of committing an

offense." State v. Nonog, 145 Wn. App. 802, 812, 187 P.3d 335(2008); Smith, 159

Wn.2d at 785-86. Sefton's interpretation of the crime relies on the definition of "basic

necessities of life" contained in the definitional statute, RCW 9A.42.010(1). But RCW

9A.42.020, which describes the offense of criminal mistreatment in the first degree,

does not list the alternative basic necessities of life in the text or in numbered

subsections. We conclude the different basic necessities of life listed in RCW

9A.42.010(1) are merely definitional and not alternative means of committing the crime.

Neither a jury unanimity instruction nor a special verdict form were warranted.

       Sefton cites Nonoq and State v. Peterson, 174 Wn. App. 828, 301 P.3d 1060

(2013), to argue the definition of basic necessities of life identifies alternative means of

committing criminal mistreatment. Nonoq and Peterson are inapposite. In Nonoq, we

held interfering with the reporting of domestic violence under RCW 9A.36.150(1) is an

alternative means crime. Nonog, 145 Wn. App. at 812. The statute identified three

different ways of committing the crime that "are not merely descriptive or definitional of

essential terms." Nonoq, 145 Wn. App. at 812. We concluded the "variations are

themselves essential terms." Nonoq, 145 Wn. App. at 812. In Peterson, the court held

the animal cruelty statute is an alternative means crime because the statute sets out

three distinct ways of committing the crime that are essential elements rather than mere

definitions of the crime. Peterson, 174 Wn. App. at 852. This case is distinguishable

from Nonog and Peterson.



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No. 75111-5-1 (Consol. with No. 75116-6-1)/44

      5. Prosecutorial Misconduct

       Sefton asserts the prosecutor committed misconduct during closing argument

and rebuttal. To prevail on a claim of prosecutorial misconduct, the defendant must

show the prosecutor's argument was both improper and prejudicial. State v. Warren,

165 Wn.2d 17, 26, 195 P.3d 940 (2008). We review allegations of prosecutorial

misconduct for an abuse of discretion. State v. Lindsay, 180 Wn.2d 423,430, 326 P.3d

125 (2014).

       We review allegedly improper comments in the context of the entire closing

argument, the issues presented, the evidence addressed, and the instructions given to

the jury. State v. Russell, 125 Wn.2d 24, 85-86, 882 P.2d 747(1994). The prosecutor

"is entitled to make a fair response to the arguments of defense counsel" during rebuttal

argument. State v. Gauthier, 189 Wn. App. 30, 37-38, 354 P.3d 900(2015); State v.

Gregory, 158 Wn.2d 759, 842, 147 P.3d 1201 (2006); Russell, 125 Wn.2d at 87. The

defendant must show the prosecutor's misconduct resulted in prejudice that had a

substantial likelihood of affecting the jury's verdict. State v. Emery, 174 Wn.2d 741,

760, 278 P.3d 653(2012). Where the defendant does not object at trial, any error is

waived unless the prosecutorial misconduct is so flagrant and ill intentioned that an

instruction could not have cured the resulting prejudice. Emery, 174 Wn.2d at 760-61.

       The prosecutor began closing argument by telling the jury:

       As 1 said at the onset of this case, there are typically three parties to child
       abuse: The abused, the abuser, and the bystanders.
              And true to form, there were plenty of bystanders in this case. But
       the time of reckoning is upon us, and none of us will be mere bystanders.
               Nature in this case has failed. The instinct for parents to love and
       nurture their children has failed. The system designed to step in and step
       up in this circumstance has failed.



                                             44
No. 75111-5-1 (Consol. with No. 75116-6-1)/45

              We will not fail. We will be swift and just and virtuous against what
       is before us in this shadow of humanity.

In rebuttal closing argument, the prosecutor returned to this theme. "How much our

society values its children can be measured by how well they are treated, how well they

are protected, and it is time to show [K.S.] and [R.L.] and [D.S.] that they are valued and

that they will be protected." The defense did not object.

       For the first time on appeal, Sefton argues the prosecutor committed misconduct

by urging the jury to "send a message" and encouraging the jury to decide the case

based on passion and prejudice.

       A prosecutor may not urge the jury to convict a defendant to protect community

values, preserve order, or deter criminal behavior. State v. Ramos, 164 Wn. App. 327,

338, 263 P.3d 1268(2011); State v. Bautista-Caldera, 56 Wn. App. 186, 195, 783 P.2d

116(1989). In Ramos, we held the prosecutor improperly suggested the jury should

convict the defendant to end the drug problem in the area. Ramos, 164 Wn. App. at

337-38, 340-41. In Bautista-Caldera, the court held a prosecutor improperly asked the

jury to send a message to all children of sex abuse that they will be believed. Bautista-

Caldera, 56 Wn. App. at 194-95.

       Here, the prosecutor addressed the many missed opportunities to help K.S.

based on the evidence at trial. In particular, the numerous CPS reports in the months

leading up to the arrest of Sefton and Lloyd, consistent with school nurse Sasser's

testimony that she was frustrated with CPS's failure to take action to help K.S. In

rebuttal, the prosecutor responded to Sefton's argument that Auburn School District

personnel decided early on that Sefton and Lloyd were abusing K.S. even when there

was no evidence of abuse. By drawing attention to the many missed opportunities to


                                            45
No. 75111-5-1 (Consol. with No. 75116-6-1)/46

protect the victims in this case, the prosecutor did not urge the jury to send a message

to all abused children. Instead, the prosecutor reminded the jury to consider all the

evidence and take its job seriously, in contrast to how CPS handled the case. We

conclude Sefton cannot show misconduct "so flagrant and ill-intentioned that it cause[d]

an enduring and resulting prejudice that could not have been neutralized by a curative

instruction." State v. Brown, 132 Wn.2d 529, 561, 940 P.2d 546(1997).13

        In the alternative, Sefton asserts trial counsel provided ineffective assistance by

not objecting to the argument. To combat hindsight, our scrutiny of defense counsel's

failure to object is highly deferential. State v. Grier, 171 Wn.2d 17, 33-34, 246 P.3d

1260 (2011). To prevail, Sefton must show his attorney's performance fell below an

objective standard of reasonableness and the result would have been different.

Strickland, 466 U.S. at 687. Sefton cannot establish that his attorney's performance fell

below an objective standard or that the result would have been different if his attorney

objected.

        6. Mental Health Evaluation and No-Contact Order

        Sefton contends the sentencing court erred in ordering mental health evaluation

and treatment without making the required statutory findings. Under RCW 9.946.080,

the court may order an offender to undergo a mental status evaluation if the court finds

the defendant is likely "a mentally ill person as defined in RCW 71.24.025" and their

mental status is "likely to have influenced the offense." As the State concedes, the trial

court did not make the requisite findings. We accept the concession and remand. On



         13 As the State points out, even if the prosecutor's statements were improper, because the jury
did not convict Sefton and Lloyd on all counts, it is highly unlikely the jury interpreted the prosecutor's
statements to be an instruction to send a message to all children of abuse.


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remand, the court shall determine whether to order a mental health evaluation and if so,

enter findings as required by RCW 9.946.080. State v. Shelton, 194 Wn. App. 660,

676, 378 P.3d 230 (2016).

       Sefton contends the lifetime no-contact order with D.S. violates his fundamental

right to parent. But during sentencing, the court said it would "reconsider" the no-

contact order "at some point." The no-contact order expires on April 21, 2099. The

State concedes it is unclear whether the sentencing court intended to impose a lifetime

no-contact order between Sefton and D.S. We agree and remand to determine whether

to impose a no-contact order with D.S. and if so, to enter specific findings on the scope

and duration of the no-contact order.

LLOYD APPEAL

       1. Sufficiency of the Evidence

       Lloyd contends insufficient evidence supports the conviction for assault of a child

in the first degree. Lloyd claims only Sefton inflicted injuries on K.S.

       In reviewing a challenge to the sufficiency of the evidence, we view the evidence

in the light most favorable to the State to determine whether any rational trier of fact

could have found the essential elements of the crime beyond a reasonable doubt. State

v. Witherspoon, 180 Wn.2d 875, 883, 329 P.3d 888(2014); State v. Salinas, 119 Wn.2d

192, 201, 829 P.2d 1068 (1992). A challenge to the sufficiency of the evidence admits

the truth of the State's evidence. Witherspoon, 180 Wn.2d at 883. "[A]ll reasonable

inferences from the evidence must be drawn in favor of the State and interpreted most

strongly against the defendant." Salinas, 119 Wn.2d at 201. We defer to the trier of fact

on "issues of witness credibility." Witherspoon, 180 Wn.2d at 883.



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      The court instructed the jury that to convict Sefton and Lloyd of assault of a child

in the first degree, the State must prove beyond a reasonable doubt:

            (1) That on or about October 1, 2013 through March 20, 2014, the
      defendant intentionally assaulted K.S. and caused substantial bodily harm;
            (2) That the defendant was eighteen years of age or older and K.S.
      was under the age of thirteen;
            (3) That the defendant had previously engaged in a pattern or
      practice of
            (a) assaulting K.S. which had resulted in bodily harm that was
      greater than transient physical pain or minor temporary marks; or
            (b) causing K.S. physical pain or agony that was equivalent to that
      produced by torture; and
            (4) That any of these acts occurred in the State of Washington.

       Lloyd asserts she had no duty to protect K.S. from Sefton and there was no

evidence that she acted as an accomplice. The State argues that viewing the evidence

in the light most favorable to the State, the evidence supports the jury finding Lloyd was

guilty of assault of K.S. in the first degree. We conclude sufficient evidence supports

the conviction of Lloyd as a principal and as an accomplice.

     ' Chinook school counselor Rodriguez testified that on February 26, 2014, K.S.

had a large purple bruise on the top of his ear and small round bruises on his forearms.

Rodriguez noticed the inside of K.S.'s ear "also had some diagonal slash marks that

looked like fingernail marks, as if somebody had reached out and grabbed him by his

ear." When Rodriguez asked K.S. what happened to his ear, K.S. said he did not

remember. Rodriguez reported the ear injury to CPS that day.

       On February 28, CPS social worker Gonzalez took photographs of K.S.'s injuries

and sent them to child abuse pediatrician Dr. Weister through "MedCon," the statewide

medical consultant program. Dr. Weister reviewed the photographs that day. The

photographs showed a bruise in the inner part of K.S.'s left ear and bruising on the back



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No. 75111-5-1 (Consol. with No. 75116-6-1)/49

of the ear. These photographs were admitted at trial. Dr. Weister testified the ear

injuries were "very worrisome for inflicted trauma" because the injury was not consistent

with K.S.'s explanation that the injury was from sleeping on a carpeted floor. Dr.

Weister stated the "abundant literature and clinical experience" shows ear injuries on

children are often inflicted, not accidental. Dr. Weister testified the fact that there was

bruising on both sides of the ear indicated a "significant trauma" caused by "a significant

blow." Dr. Weister recommended K.S. be taken to Seattle Children's Hospital

immediately.

       CPS social worker Gonzalez instructed Sefton and Lloyd to bring K.S. to Seattle

Children's Hospital but they did not comply. Seattle Children's Hospital called CPS.

When CPS social worker Jackson asked K.S. how his ear was injured, K.S. stated,

"[The week before the family was on vacation, so he was sleeping on the floor." On

March 1, Jackson asked Sefton and Lloyd to take K.S. to Seattle Children's Hospital.

They refused. Instead, Sefton and Lloyd took K.S. to Auburn Medical Center, where

Jackson interviewed K.S.

       Dr. Weister reviewed the March 1 records of K.S.'s treatment at Auburn Medical

Center. Lloyd told the doctor that K.S. injured his ear by sleeping on the floor. Dr.

Weister testified, "There's otherwise no history, which means no other information was

given about the injury." Dr. Weister testified Lloyd's explanation "was not consistent

with the injury," specifically, "the information that was given about falling asleep on the

floor was not consistent with the injury that he had."

       Sefton and Lloyd brought K.S. to Seattle Children's Hospital on March 7. Sefton

and Lloyd said K.S. was "aggressive" and "injuring himself." During that visit, K.S. said



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No. 75111-5-1 (Consol. with No. 75116-6-1)/50

the ear injury occurred when his family was staying in a hotel room in Oregon and he

was on the floor. "Then he said he hit himself in the ear repeatedly in order to stay

awake so that he could watch the movie that his father was watching."

       Dr. Weister reviewed the records of the March 7 visit to Seattle Children's

Hospital. Dr. Weister testified K.S.'s explanation that he hit himself in the ear to stay

awake was "highly concerning for and consistent with inflicted trauma." Dr. Weister

testified the "several stories about how [the ear injury] happened"—that he "can't

remember how it happened, or says he did it himself, or repeats history that's given by

family members when it doesn't make mechanical sense"—made her "worried even

more that this is non-accidental, that this would be inflicted."

       On March 20, Seattle Children's Hospital emergency department pediatrician Dr.

Kaplan examined K.S. The State introduced a series of photographs of K.S. taken

during the visit. Dr. Kaplan explained the "redness and swelling of the ear" shown in the

photographs is "a very unusual place to have any sort of accidental injury." Dr. Kaplan

testified any ear injury is "suspicious" and the only reason to have bruising on the ear is

"if someone grabbed your ear and squeezed it." Dr. Kaplan said the ear bruising

present at the March 7 hospital visit was not caused by sleeping on the floor and it

would be difficult to self-inflict trauma on that part of the body.

       R.L. testified that Lloyd "would hold [K.S.] by the ear and walk him around

holding his ear" as punishment. R.L. said K.S. would "be screaming" when Lloyd held

his ear because "it hurt him because she was pulling on it."

       The evidence about K.S.'s ear injury establishes that Lloyd, not just Sefton,

assaulted K.S. intentionally and caused substantial bodily harm over a prolonged period



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No. 75111-5-1 (Consol. with No. 75116-6-1)/51

of time. We conclude sufficient evidence supports Lloyd's conviction for assault of a

child in the first degree.

       2. Double Jeopardy

       Lloyd asserts the convictions for assault of a child in the first degree and criminal

mistreatment in the first degree violate double jeopardy. Lloyd claims the State relied

on the same evidence to prove both crimes.

       We review claims of double jeopardy de novo. State v. Smith, 177 Wn.2d 533,

545, 303 P.3d 1047 (2013). The United States Constitution and the Washington State

Constitution prohibit the State from twice putting a defendant in jeopardy for the same

offense. U.S. Const. amend. V ("No person shall. .. be subject for the same offense to

be twice put in jeopardy of life or limb."); Wash. Const. art. 1, § 9("No person shall...

be twice put in jeopardy for the same offense."); State v. Fuller, 185 Wn.2d 30, 33, 367

P.3d 1057 (2016). Courts may not impose multiple convictions for the same offense

without violating double jeopardy. State v. Freeman, 153 Wn.2d 765, 770, 108 P.3d

753(2005).

       In analyzing a double jeopardy claim, we begin with the statutory language to

determine whether the statutes expressly permit punishment for the same act or

transaction. State v. Hughes, 166 Wn.2d 675, 681, 212 P.3d 558 (2009). If the statutes

do not address multiple punishments for the same act, we apply the "same evidence"

test. Hughes, 166 Wn.2d at 681-82. Under the same evidence test, "the defendant's

double jeopardy rights are violated if he or she is convicted of offenses that are identical

both in fact and in law." State v. Calle, 125 Wn.2d 769, 777, 888 P.2d 155(1995).




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No. 75111-5-1 (Consol. with No. 75116-6-1)/52

However, if each offense as charged includes an element not included in the other, the

offenses are different and multiple convictions can stand. Calle, 125 Wn.2d at 777.

      To prove criminal mistreatment in the first degree, the State must prove that the

defendant was the parent or otherwise entrusted with the care of the victim and that the

defendant withheld "the basic necessities of life." RCW 9A.42.020. Assault of a child in

the first degree requires no such relationship between the defendant and the victim.

Conversely, assault of a child in the first degree requires the State to prove the

defendant is at least 18 years old and the victim is under 13 years old and the

defendant committed an assault, engaged in a pattern or practice of assault, or caused

physical pain akin to torture. RCW 9A.36.120(1)(b)(ii). Because each crime contains

an element the other does not, we presume the crimes are not the same offense.

Freeman, 153 Wn.2d at 772.

       Further, the record does not support Lloyd's claim that the State relied on the

same evidence to prove the two crimes. Freeman, 153 Wn.2d at 777(the mere fact the

same conduct is used to prove both crimes is not dispositive under the same evidence

test). The evidence showed a pattern and practice of causing physical pain and

starvation. Because the crimes are not the same in law or fact, we conclude the

convictions do not violate double jeopardy.

       3. Vagueness Challenge: Torture

       Lloyd argues that as applied, the term "torture" as used in the statute that defines

the crime of assault of a child in the first degree is unconstitutionally vague. See RCW

9A.36.120(1)(b)(ii). We review whether a statute is unconstitutionally vague de novo as

a question of constitutional law. State v. Watson, 160 Wn.2d 1,5, 154 P.3d 909 (2007).



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No. 75111-5-1 (Consol. with No. 75116-6-1)/53

       The Fifth Amendment to the United States Constitution provides that "[n]o person

shall. .. be deprived of life, liberty, or property, without due process of law." The

vagueness doctrine ensures laws provide notice and clear standards to prevent

arbitrary enforcement. Johnson v. United States,         U.S.     , 135 S. Ct. 2551, 2556,

192 L. Ed. 2d 569 (2015); In re Det. of LaBelle, 107 Wn.2d 196, 201, 728 P.2d 138

(1986). "The purpose of this doctrine is to 'provide fair notice to citizens as to what

conduct is proscribed and to protect against arbitrary enforcement of the laws.'" In re

Det. of M.W., 185 Wn.2d 633, 661, 374 P.3d 1123(2016)(quoting City of Seattle V.

Eze, 111 Wn.2d 22, 26, 759 P.2d 366 (1988)).

       The party challenging a law as void for vagueness bears the burden of proving it

is unconstitutional. M.W., 185 Wn.2d at 661. We presume the statute is constitutional.

State v. Bahl, 164 Wn.2d 739, 753, 193 P.3d 678 (2008); Watson, 160 Wn.2d at 11. A

statute is unconstitutionally vague if either it does not define the criminal offense with

sufficient definiteness that an ordinary person would understand what conduct is

proscribed or it does not provide ascertainable standards of guilt to protect against

arbitrary enforcement. Watson, 160 Wn.2d at 6.

       We previously rejected a void for vagueness challenge to the term "torture."

State v. Brown, 60 Wn. App. 60, 66, 802 P.2d 803(1990); State v. Russell, 69 Wn. App.

237, 248, 848 P.2d 743(1993). In Brown, the defendant was charged with assault in

the second degree under the "torture" prong and argued the term was unconstitutionally

vague. Brown,60 Wn. App. at 64-65. While definitions of the term may vary slightly,

we concluded the word "torture" gives notice "with a reasonable degree of certainty" as

to what conduct is prohibited. Brown,60 Wn. App. at 66.



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No. 75111-5-1 (Consol. with No. 75116-6-1)/54

       In Russell, the defendant was convicted of homicide of his son by abuse.

Russell, 69 Wn. App. at 241. The homicide by abuse statute requires the State to prove

the defendant previously engaged in a pattern or practice of assault or torture of the

victim, which Russell argued was unconstitutionally vague. Russell, 69 Wn. App. at

244-45. We disagreed, noting the term "torture" is commonly understood and provides

notice as to what is forbidden. Russell, 69 Wn. App. at 248.

       We adhere to Brown and Russell and reject Lloyd's void for vagueness

challenge. The term "torture" gives notice as to what conduct is prohibited. The

evidence at trial showed Sefton and Lloyd deprived K.S. of sleep, isolated him from the

family, and withheld food. Without objection, Dr. Weister described the difference

between child abuse and child torture. Dr. Weister testified Sefton and Lloyd's actions

met almost every marker for child torture. As applied here, the term "torture" is not

unconstitutionally vague.

       4. Vagueness Challenge: Deliberate Cruelty and Particularly Vulnerable Victim

Aggravating Factors

       Lloyd argues the aggravating factors "deliberate cruelty" and "particularly

vulnerable" victim are unconstitutionally vague. See RCW 9.94A.535(3)(a),(b). RCW

9.94A.535(3) lists "aggravating circumstances" that can support a departure from the

sentencing guidelines if the "facts supporting aggravating circumstances" can be

"proved to a jury beyond a reasonable doubt." RCW 9.94A.537(3). "Aggravating

Circumstances" include the defendant's conduct "manifested deliberate cruelty to the

victim" and the defendant knew or should have known the victim "was particularly

vulnerable." RCW 9.94A.535(3)(a),(b).



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No. 75111-5-1 (Consol. with No. 75116-6-1)/55

      The Washington Supreme Court in State v. Baldwin, 150 Wn.2d 448,459, 78

P.3d 1005 (2003), rejected a void for vagueness challenge to sentencing guidelines

statutes because "the due process considerations that underlie the void-for-vagueness

doctrine have no application in the context of sentencing guidelines." Sentencing

guidelines do not inform the public of the penalties attached to criminal conduct or allow

for arbitrary arrest and prosecution. Baldwin, 150 Wn.2d at 459.

       Contrary to Lloyd's assertion that Baldwin has been overruled, the United States

Supreme Court recently reaffirmed that the sentencing guidelines are not subject to a

vagueness challenge because "they merely guide the exercise of a court's discretion in

choosing an appropriate sentence within the statutory range." Beckles v. United States,

    U.S.     , 137 S. Ct. 886, 892, 197 L. Ed. 2d 145(2017).

       Because the aggravating factors merely guide the sentencing court's decision to

impose an exceptional sentence, we reject Lloyd's void for vagueness challenge.

       5. Exceptional Sentence: Particularly Vulnerable Victim

       Lloyd argues the court erred by imposing an exceptional sentence based on

finding that K.S. was a particularly vulnerable victim. Lloyd contends the legislature

necessarily considered the age of the victim in determining the standard-range

sentence for assault of a child in the first degree and criminal mistreatment in the first

degree.

       An element of the charged offense may not be used to justify an exceptional

sentence. State v. Ferguson, 142 Wn.2d 631, 648, 15 P.3d 1271 (2001). An

exceptional sentence may not be imposed based on factors inherent to the offense for

which the defendant is convicted. State v. Thomas, 138 Wn.2d 630, 636, 980 P.2d



                                             55
No. 75111-5-1 (Consol. with No. 75116-6-1)/56

1275 (1999). Under RCW 9.94A.535(3)(b), one of the aggravating factors is "[t]he

defendant knew or should have known that the victim of the current offense was

particularly vulnerable or incapable of resistance." The State must prove (1)the

defendant knew or should have known (2) of the victim's particular vulnerability and (3)

that vulnerability was a substantial factor in committing the crime. State v. Suleiman,

158 Wn.2d 280, 291-92, 143 P.3d 795(2006).

       Contrary to Lloyd's argument, courts have upheld an exceptional sentence based

on a particularly young victim even when the statute included an age element. See,

e.g., State v. Fisher, 108 Wn.2d 419, 421, 423-24, 739 P.2d 683(1987)(considering

age of the 5-and-a-half-year-old victim as an aggravating factor where crime is indecent

liberties of a child younger than 14); State v. Garibay, 67 Wn. App. 773, 776, 778-79,

841 P.2d 49(1992)(considering age of the 4-year-old victim as an aggravating factor

where crime is rape of a child younger than 12).

       Further, as previously noted, the crimes of assault of a child and criminal

mistreatment include a wide age-range. Assault of a child in the first degree requires

the victim to be under 13 years old, while criminal mistreatment in the first degree

requires the victim to be "a child or dependent person." RCW 9A.36.120(1); RCW

9A.42.020(1). K.S. was only 6 years old when Lloyd and Sefton committed the crimes

of assault of a child and criminal mistreatment in the first degree. In addition, their

actions toward K.S. made him particularly vulnerable. The deprivation of sleep and food

made K.S. chronically tired and weak. The evidence supports finding KS. was a

particularly vulnerable victim.




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No. 75111-5-1 (Consol. with No. 75116-6-1)/57

      6. Exceptional Sentence: Domestic Violence

       Lloyd asserts the sentencing court erred in relying on the aggravating factor that

K.S. was a member of her family or household to impose an exceptional sentence.

Lloyd argues she and K.S. were not "family or household members" as defined by RCW

10.99.020(3). RCW 10.99.020(3) defines "family or household members" in part as

"persons who have a biological or legal parent-child relationship, including stepparents

and stepchildren and grandparents and grandchildren." The State concedes the court

could not rely on the domestic violence aggravating factor to impose an exceptional

sentence as to Lloyd. We accept the concession as well taken.

       But we may uphold an exceptional sentence even when we overturn one of the

aggravating factors if the trial court would have imposed the same sentence based on

other aggravating factors. State v. Jackson, 150 Wn.2d 251, 276, 76 P.3d 217(2003).

Here, the court imposed a concurrent exceptional sentence of 240 months on assault of

a child in the first degree and 120 months on criminal mistreatment in the first degree

based on the particularly vulnerable victim, deliberate cruelty, and domestic violence

aggravating factors. The court concluded,"Each one of these aggravating

circumstances is a substantial and compelling reason, standing alone, that is sufficient

justification for the length of the exceptional sentence imposed." We uphold the

exceptional sentence.

       7. Same Criminal Conduct

       Lloyd asserts she received ineffective assistance of counsel because her

attorney did not argue assault of a child in the first degree and criminal mistreatment in

the first degree constitute the same criminal conduct for purposes of sentencing.



                                            57
No. 75111-5-1 (Consol. with No. 75116-6-1)/58

       In calculating the offender score, the court counts current and prior convictions.

RCW 9.94A.589(1)(a). The offender score for a current offense includes all other

current offenses unless "the court enters a finding that some or all of the current

offenses encompass the same criminal conduct then those current offenses shall be

counted as one crime." RCW 9.94A.589(1)(a). "Same criminal conduct" means "two or

more crimes that(1) require the same criminal intent,(2) are committed at the same

time and place, and (3) involve the same victim." State v. Vike, 125 Wn.2d 407, 410,

885 P.2d 824 (1994); RCW 9.94A.589(1)(a). In this context, "intent" is the objective

criminal purpose in committing the crime, although the Washington Supreme Court has

also looked to statutes to determine criminal intent. State v. Rattana Keo Phuonq, 174

Wn. App. 494, 546, 299 P.3d 37(2013); see State v. Chenoweth, 185 Wn.2d 218, 222-

23, 370 P.3d 6(2016)(court examined rape of a child in the third degree statute and

incest statute to reject argument that the "two crimes involve separate intent" because

"[t]he intent to have sex with someone related to you differs from the intent to have sex

with a child"). Courts will also look at whether one crime furthered another as part of

this analysis. State v. Graciano, 176 Wn.2d 531, 540, 295 P.3d 219(2013).

       Lloyd contends her intent in committing both assault of a child in the first degree

and criminal mistreatment in the first degree was the same—a misguided attempt at

parenting. The record does not support her argument. The evidence showed Lloyd and

Sefton committed acts of physical violence against K.S., such as pulling him by his ear.

The evidence also showed Lloyd and Sefton withheld food and sleep from K.S. over a

long period of time because they disliked K.S. and believed he was "messy" and a "bad

kid." Further, the two crimes involve separate criminal intent. The intent to cause



                                            58
No. 75111-5-1 (Consol. with No. 75116-6-1)/59

substantial bodily harm as part of a pattern or practice of assaulting K.S. to cause great

physical pain or agony equivalent to torture, RCW 9A.36.120(1)(b)(ii), differs from the

intent to cause great bodily harm by withholding the basic necessities of life, RCW

9A.42.020(1). We conclude trial counsel did not provide ineffective assistance by failing

to argue same criminal conduct.

Appellate Costs

       Sefton and Lloyd ask us to deny appellate costs. Appellate costs are generally

awarded to the substantially prevailing party on review. RAP 14.2. Where, as here, a

trial court makes a finding of indigency, that finding remains throughout review "unless

the commissioner or clerk determines by a preponderance of the evidence that the

offender's financial circumstances have significantly improved since the last

determination of indigency." RAP 14.2. Under RAP 14.2, if the State has evidence

indicating that Sefton or Lloyd's financial circumstances have significantly improved

since the trial court's finding, it may file a motion for costs with the commissioner. State

v. St. Clare, 198 Wn. App. 371, 382, 393 P.3d 836(2017).

       We affirm the jury convictions of assault of a child in the first degree and criminal

mistreatment in the first degree. We remand to address whether to order a mental




                                            59
No. 75111-5l1 (Consol. with No. 75116-6-1)/60

health evaluation as a condition of community custody and whether to impose a no-

contact order with D.S. and if so, enter findings.




                                                     c1,,\,,sQ___k
WE CONCUR:




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                                                                        9f


                                            60
