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        IN THE SUPREME COURT OF THE STATE OF WASHINGTON



   STATE OF WASHINGTON,                               NO. 90337-9

                        Respondent,                   ENBANC

                 v.
                                                      Filed   AUG 1 3 2015
    SEAN THOMPSON O'DELL,

                        Petitioner.


         GORDON McCLOUD, J.-Sean O'Dell was convicted of second degree rape

   of a child and given a standard range sentence of95 months. O'Dell committed this

   offense 10 days after his 18th birthday.

          O'Dell raises two issues in this appeal: one challenge to his conviction and

   one challenge to his sentence. With respect to the conviction, he argues that the trial

   court erred by refusing to instruct the jury on the affirmative defense of reasonable

   belief that the victim-here, a 12-year-old girl-was at least 14 years old or less than

   36 months younger than O'Dell, based on the victim's declarations as to age. With

   respect to the sentence, he argues that the trial court abused its discretion when it
State v. 0 'Dell (Sean Thompson), No. 90337-9



refused to consider O'Dell's own relative youth as a basis to depart from the standard

sentence range.

      For the reasons given below, we reject O'Dell's challenge to his conviction

but remand for a new sentencing hearing at which the trial court can consider

whether youth diminished O'Dell's culpability for his offense.

                                        FACTS

      About 10 days after his 18th birthday, O'Dell had sex with 12-year-old A.N.

According to A.N., the two met up on Sunday afternoon, along with a mutual friend,

to drink wine and smoke cigars in the woods. Verbatim Report of Proceedings

(VRP) (Jan. 16, 2013) at 254-59. A.N. testified that she, the friend, and O'Dell made

plans to meet up again later that night but that the friend did not join them as planned.

Id. at 268-75. She testified that she and O'Dell sat in the woods to wait for their

friend and, after a few minutes of talking, O'Dell forcibly raped her. Id. at 280-87.

A.N. also testified that she told O'Dell when they first met that she was 12 years old.

Id. at 256-57.

       O'Dell testified that he met A.N. at their mutual friend's house on Saturday

night, where A.N. and others were drinking wine. VRP (Jan. 18, 2013) at 538.

According to O'Dell, he commented that A.N. looked too young to be drinking and

she responded, '"I get that a lot."' !d. at 542. He testified that A.N. wanted to go


                                            2
State v. O'Dell (Sean Thompson), No. 90337-9



swimming at the beach, that she left the party with O'Dell to do this, and that the

two had consensual sex on the walk to the beach. Id. at 544-48. He also testified

that he first learned A.N. 's age when A.N. 's mother called him, the Monday after he

had sex with A.N., and told him that her daughter was only 12. Id. at 572-74.

      The State charged O'Dell with second degree rape of a child.             With no

objection from the State, the trial court instructed the jury that "[i]t is ... a defense

to the charge of Rape of a Child in the Second Degree that at the time of the acts the

defendant reasonably believed that [A.N.] ... was at least fourteen years of age, or

was less than thirty-six months younger than the defendant based upon declarations

as to age by [A.N.]." Clerk's Papers (CP) at 104. While deliberating, the jurors sent

a question to the court regarding this instruction: "As to declarations as to age: Must

it be verbal or can it be nonverbal?" VRP (Nov. 9, 2012) at 533. Ultimately, the

jury was unable to reach a verdict and the court declared a mistrial. Id. at 542-43.

       In the second trial, O'Dell again requested a jury instruction on the affirmative

defense that he reasonably believed A.N. was "at least fourteen years of age, or was

less then thirty-six months younger than the defendant, based upon declarations as

to age by [A.N.]." CP at 79. This time the State objected. O'Dell argued that A.N. 's

statement "I get that a lot" was an assertion that A.N. was older than she looked.

VRP (Jan. 18, 2013) at 605-06; CP at 80-81. The trial court rejected that reasoning


                                            3
State v. 0 'Dell (Sean Thompson), No. 90337-9



and denied the requested instruction. VRP (Jan. 18, 2013) at 607-08. The jury

convicted O'Dell as charged. CP at 62.

      At sentencing, the defense asked the court to impose an exceptional sentence

below the standard range because "[t]he defendant's capacity to appreciate the

wrongfulness of his conduct, or to conform his conduct to the requirements of the

law, was significantly impaired by youth." CP at 37. The defense argued that when

O'Dell committed his offense, he "was still in high school, associating with school

age persons" and "was not some mid-twenties man hanging out at the local high

school or trolling the internet for young people." Id. at 40. Counsel also pointed out

that "[h]ad the incident happened two weeks prior, and assuming the State could not

convince the Court to prosecute [O'Dell] as an adult, he would be facing 15-36

weeks in a well-guarded juvenile detention facility ... rather than 78-102 months in

an adult prison." CP at 39. Finally, the defense quoted portions of the United States

Supreme Court's decision in Roper v. Simmons, 543 U.S. 551, 569-70, 125 S. Ct.

1183, 161 L. Ed. 2d 1 (2005), which held that it is unconstitutional to impose the

death penalty on a juvenile. CP at 38-39. Roper relied on research, by various

medical and psychiatric associations, indicating that juveniles are more susceptible

to negative influences and impulsive behavior and therefore less morally culpable

for their crimes relative to adults. 543 U.S. at 570.


                                           4
State v. 0 'Dell (Sean Thompson), No. 90337-9




      The trial court acknowledged this argument but ruled that it could not consider

age as a mitigating circumstance under the Court of Appeals' decision in State v.

Ha 'mim, 82 Wn. App. 139, 916 P.2d 971 (1996), aff'd, 132 Wn.2d 834, 940 P.2d

633 (1997):

            The other [mitigating factor] that is relied upon is (e), "The
      Defendant's capacity to apprec- appreciate the wrongfulness of his or
      her conduct or to conform his or her conduct to the requirements of the
      law was significantly impaired .... "

             So I - I've looked over, of course, this - this mitigating
       circumstance as well. And, really, I guess it comes down to the
       statement that Mr. O'Dell made, and that is, "I'm just a boy who made
       a mistake."



             So we're talking about his age. He's just a week past 18. Or he
       was not mature yet. Or whatever it is.

            But then !looked up State v. Ha'Mim, I think it is. H-A-hyphen-
       M-I-M. It is 82 Wn. App. 139, 1996. And that it talks about RCW
       9.94A.390(1 )(e), that factor I was saying, that capacity to appreciate the
       wrongfulness.

             And it specifically says that ". . . a defendant's incapacity to
       appreciate the wrongfulness of the criminal conduct cannot be based
       on the youthfulness of the Defendant ... " The particular judge in that
       case based it on that and was overturned.

              So it is what it is.

VRP (Mar. 6, 2013) at 73-75 (emphasis added) (third and fourth alterations in

original).

                                            5
State v. O'Dell (Sean Thompson), No. 90337-9




      0 'Dell appealed his conviction and sentence. State v. 0 'Dell, noted at 180

Wn. App. 1044, 2014 WL 1711548, at * 1. He argued that he was entitled to the jury

instruction on the affirmative defense of reasonable belief and that the trial court

should have considered his relative youth as a basis for an exceptional sentence

below the standard range.

      The Court of Appeals held that the trial court properly rejected the affirmative

defense instruction because there was no evidence that A.N. made any declarations

as to her age. 2014 WL 1711548, at *2. It also rejected O'Dell's challenge to his

sentence. Id. at *3. First, the Court of Appeals concluded that this court's decision

in Ha 'mim, 132 Wn.2d 834, barred the trial court from considering youth as a basis

for an exceptional downward departure under the Sentencing Reform Act of 1981

(SRA), chapter 9.94A RCW. 2014 WL 1711548, at *3. This court's decision in

Ha 'mim, like the Court ofAppeals ' decision that the trial court relied on at 0 'Dell's

sentencing hearing, held that a young adult offender's age is not, in and of itself, a

mitigating circumstance justifying an exceptional lowered sentence. Ha 'mim, 132

Wn.2d at 846.




                                           6
State v. 0 'Dell (Sean Thompson), No. 90337-9




        The Court of Appeals also rejected O'Dell's argument that Roper and recent

research on adolescent brain development have abrogated Ha 'mim: 1

              Following the United States Supreme Court's decision in Roper
        v. Simmons, our legislature found that "adolescent brains, and thus
        adolescent intellectual and emotional capabilities, differ significantly
        from those of mature adults. It is appropriate to take these differences
        into consideration when sentencing juveniles tried as adults," and
        amended RCW 9 .94A.540 prospectively. But this exception does not
        apply to O'Dell, who was an adult and not a juvenile tried as an adult.

O'Dell, 2014 WL 1711548, at *3 (footnotes omitted) (quoting LAWS OF 2005, ch.

437, § 1).

        We granted review. State v. O'Dell, 181 Wn.2d 1020, 337 P.3d 327 (2014).

                                        ANALYSIS

   I.        THE TRIAL COURT PROPERLY DECLINED To INSTRUCT THE JURY ON THE
             AFFIRMATNE DEFENSE THAT THE DEFENDANT REASONABLY BELIEVED
             THAT THE VICTIM WAS AT LEAST FOURTEEN YEARS OF AGE, OR WAS LESS
             THAN THIRTY-SIX MONTHS YOUNGER THAN THE DEFENDANT, BASED ON
             DECLARATIONS BY THE VICTIM

        A defendant is entitled to a jury instruction that is supported by substantial

evidence in the record. State v. Griffith, 91 Wn.2d 572,574-75,589 P.2d 799 (1979).

In determining whether the evidence is sufficient to support a jury instruction on an



        1
            See Br. of Appellant at 9-10 ("The Washington State Supreme Court has concluded
'the age of the defendant does not relate to the crime or the previous record of the
defendant.' ... Ha 'mim, 132 Wn.2d [at] 847 .... But since Ha 'mim was decided, courts
have recognized youth does alter the nature of the crime and thus relates directly to the
crime.").
                                           7
State v. O'Dell (Sean Thompson), No. 90337-9



affirmative defense, the court must view the evidence in the light most favorable to

the defendant. State v. Ginn, 128 Wn. App. 872, 879, 117 P.3d 1155 (2005).

      In a prosecution for rape of a child in the second degree (an offense defined

not by the perpetrator's use of force but instead by the victim's age) "it is no defense

that the perpetrator did not know the victim's age, or that the perpetrator believed

the victim to be older."       RCW 9A.44.030(2); RCW 9A.44.076.                But it is an

affirmative defense, provable by a preponderance of the evidence, that "at the time

of the offense the defendant reasonably believed the alleged victim to be [at least

fourteen, or less than thirty-six months younger than the defendant] based upon

declarations as to age by the alleged victim." RCW 9A.44.030(2), (3)(b ).

       O'Dell contends that A.N. made a declaration as to her age when, in response

to his comment that she appeared too young to be drinking, she responded, "'I get

that a lot."' VRP (Jan. 18, 20 13) at 542. 2

       The trial court properly rejected this argument. The trial court noted in its

ruling that A.N. 's comment "doesn't say anything ... about any specific ages." Id.


       2
         Suppl. Br. ofPet'r at 19 ("The plain language [ofRCW 9.94A.030(2)] requires
nothing more than a statement, an assertion of fact verbal or otherwise, relating to age.
Sean O'Dell presented such evidence. He testified he was drinking with two other
adolescents .... He commented to [A.N.] 'you look too young to be drinking.' She
responded 'I get that a lot.' That is a statement by [A.N.] regarding her age, it is a factual
assertion that she was older than she appeared. The foundation for the defense was
met." (citations omitted)).

                                               8
State v. 0 'Dell (Sean Thompson), No. 90337-9



at 608. This determination was correct. We therefore affirm the Court of Appeals'

conclusion that O'Dell was not entitled to his requested affirmative defense

instruction.

      II.      THE TRIAL COURT ERRED IN FAILING To CONSIDER YOUTH AS A
               POSSIBLE MITIGATING FACTOR JUSTIFYING AN EXCEPTIONAL SENTENCE

      Whether a particular factor can justify an exceptional sentence is a question

of law, which we review de novo. Ha 'mim, 132 Wn.2d at 840.

       The question presented in this case is the same question this court considered

in Ha 'mim: whether a defendant's youth can justify an exceptional sentence below

the standard range when the defendant was over 18 when he or she committed the

offense. Thus, the parties to this case agree that Ha 'mim is the relevant controlling

authority.

       But the parties disagree about what Ha 'mim held.       O'Dell contends that

Ha 'mim absolutely bars a sentencing court from considering "youth and its attributes

as mitigating factors." Suppl. Br. of Pet'r at 6. And he argues that we should

overturn Ha 'mim because this prohibition is incorrect and harmful. !d. The State

interprets Ha 'mim differently; it argues that age "may be relevant," under Ha 'mim,

"for the statutory mitigating factor that the defendant's capacity to appreciate the

wrongfulness of his conduct, or to conform his conduct to the requirements of the

law, was significantly impaired." Suppl. Br. ofResp't at 10. But it contends that a

                                           9
State v. 0 'Dell (Sean Thompson), No. 90337-9




defendant must provide some evidence that youth in fact impaired his capacities,

since youth does not per se automatically reduce an adult offender's culpability. !d.

      For the reasons given below, we agree with much of the State's interpretation

of Ha 'mim. That decision did not bar trial courts from considering a defendant's

youth at sentencing; it held only that the trial court may not impose an exceptional

sentence automatically on the basis of youth, absent any evidence that youth in fact

diminished a defendant's culpability. But we also conclude that the trial court in this

case improperly interpreted Ha 'mim just as O'Dell does: to bar any consideration of

the defendant's youth at sentencing. Thus, we find that the trial court did not

meaningfully consider youth as a possible mitigating factor in this case, and we

remand for a new sentencing hearing.

             A. Youth satisfies the two-part test this court applies to determine
                whether a factor legally supports a departure from the standard
                sentence range

       To determine whether a factor legally supports departure from the standard

sentence range, we apply a two-part test. Ha 'mim, 132 Wn.2d at 840. First, a factor

cannot support the imposition of an exceptional sentence if the legislature

necessarily considered that factor when it established the standard sentence range.




                                          10
State v. 0 'Dell (Sean Thompson), No. 90337-9




!d. (citing State v. Alexander, 125 Wn.2d 717,725, 888 P.2d 1169 (1995)). 3 Second,

in order to justify an exceptional sentence, a factor must be "sufficiently substantial

and compelling to distinguish the crime in question from others in the same

category.'' !d.

                  1. Youth is not a factor that the legislature necessarily considered
                     when it established the standard sentence ranges for offenders
                     over the age of 18

      Although we addressed youth as a basis for an exceptional sentence in

Ha 'mim, that case discussed only the second part of the test: whether age is a factor

sufficiently substantial and compelling to distinguish a defendant's crime from

others in the same category. !d. at 845-47. Thus, we have never considered whether

the legislature necessarily considered youth when it established the standard range

sentences applicable under the SRA.             The State contends that the legislature

"explicitly considered ... age" when it made the SRA applicable to felony offenders




       3
         The rationale for this part of the test is that '"while factors which truly distinguish
the crime from others of the same category may justify an exception, those which are
inherent in that class of crimes"' cannot be the basis for such a distinction. State v.
Alexander, 125 Wn.2d at 725 (quoting DAVID BOERNER, SENTENCING IN WASHINGTON, §
9.6 at 9-13 (1985)). Thus, for example, an offender's criminal history cannot justify an
exceptional sentence "since criminal history is one of the two components (the other being
the seriousness of the offense) used to compute the presumptive range." State v. Nordby,
106 Wn.2d 514,518 n.4, 723 P.2d 1117 (1986).

                                              11
State v. O'Dell (Sean Thompson), No. 90337-9



eighteen and older. Suppl. Br. of Resp't at 9 (citing RCW 9.94A.030(34)). This

argument fails for two reasons.

      First, this court has held that when the legislature defines (and therefore

punishes) an offense according to the victim's age, this does not necessarily prevent

a sentencing court from relying on the victim's particular age to impose an

exceptional sentence. In State v. Fisher, 108 Wn.2d 419, 423-24, 739 P.2d 683

(1987), for example, this court considered whether the victim's "particular

vulnerability due to extreme youth" could justify an exceptional sentence above the

range when the fact of the victim's youth-specifically, the fact that the victim was

less than 14 years old-was already an element of the defendant's crime. The Fisher

court held that it could, concluding that" [w]hile the Legislature might have reasoned

that victims less than 14 years old were more vulnerable in general than those 14 or

older, it could not have considered the particular vulnerabilities of specific

individuals." Id. at 424 (emphasis added).

       The same logic applies in this case. The legislature has determined that all

defendants 18 and over are, in general, equally culpable for equivalent crimes. But

it could not have considered the particular vulnerabilities-for example, impulsivity,

poor judgment, and susceptibility to outside influences-of specific individuals.

The trial court is in the best position to consider those factors.


                                           12
State v. 0 'Dell (Sean Thompson), No. 90337-9



      Second, when the legislature enacted RCW 9.94A.030(34)-defining an

"offender" subject to the SRA as "a person who has committed a felony established

by state law and is eighteen years of age or older ... "-it did not have the benefit of

the data underlying the decisions in Roper, Graham v. Florida, 560 U.S. 48, 130 S.

Ct. 2011, 176 L. Ed. 2d 825 (2010), and Miller v. Alabama,_ U.S._, 132 S. Ct.

2455, 183 L. Ed. 2d 407 (2012), since the SRA's definition of an "offender" predates

Roper by roughly 25 years. LAWS OF 1981, ch. 137, § 3(11). Thus, when the

legislature enacted RCW 9.94A.030(34), it did not have the benefit of psychological

and neurological studies showing that the '"parts of the brain involved in behavior

control'" 4 continue to develop well into a person's 20s. 5




       4 Miller   132 S. Ct. at 2464 (quoting Graham, 560 U.S. at 68).

       5 Terry A. Maroney, The False Promise of Adolescent Brain Science in Juvenile
Justice, 85 NOTRE DAME L. REV. 89, 152 & n.252 (2009) (collecting studies); MIT Young
Adult Development Project:             Brain Changes, MASS. lNST. OF TECH.,
http://hrweb.mit.edu/worklife/youngadult/brain.html (last visited Aug. 4, 20 15) ("The
brain isn't fully mature at ... 18, when we are allowed to vote, or at 21, when we are
allowed to drink, but closer to 25, when we are allowed to rent a car."); Jay N. Giedd,
Structural Magnetic Resonance Imaging of the Adolescent Brain, 1021 ANN. N.Y. ACAD.
Sci. 77 (2004) ("The dorsallatera1 prefrontal cortex, important for controlling impulses, is
among the latest brain regions to mature without reaching adult dimensions until the early
20s" (formatting omitted)).

                                              13
State v. O'Dell (Sean Thompson), No. 90337-9



      These studies reveal fundamental differences between adolescent and mature

brains in the areas of risk and consequence assessment, 6 impulse control, 7 tendency

toward antisocial behaviors, 8 and susceptibility to peer pressure. 9         As amici

Washington Defender Association et al. put it, " [u ]ntil full neurological maturity,

young people in general have less ability to control their emotions, clearly identify

consequences, and make reasoned decisions than they will when they enter their late

twenties and beyond." Br. of Amici Curiae in Supp. of Appellant at 9-10. In Miller,

Roper, and Graham, the Court recognized that these neurological differences make

young offenders, in general, less culpable for their crimes: "the distinctive attributes

of youth diminish the penological justifications for imposing the harshest

sentences[;] . . . [b ]ecause 'the heart of the retribution rationale' relates to an

offender's blameworthiness, 'the case for retribution is not as strong with a minor as




       6
        Br. of Amici Curiae in Supp. of Appellant at 4-13, Roper v. Simmons, 543 U.S.
551 (2005) (No. 03-633)
       7   Giedd, supra.

       8
        See Roper, 543 U.S. at 573-74 (citing AMERICAN PSYCHIATRIC ASSOCIATION,
DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS 701-06 (4th ed. text rev.
2000)).

       9Br. of Amici Curiae in Supp. of Appellant at 15-19, Miller v. Alabama, 132 S. Ct.
2455 (2012) (No. 10-9646, 10-9647).
                                           14
State v. 0 'Dell (Sean Thompson), No. 90337-9




with an adult."' Miller, 132 S. Ct. at 2458, 2465 (internal quotation marks omitted)

(quoting Graham, 560 U.S. at 71 and citing Roper, 543 U.S. at 571).

      It is precisely these differences that might justify a trial court's finding that

youth diminished a defendant's culpability, and there was no way for our legislature

to consider these differences when it made the SRA sentencing ranges applicable to

all offenders over 18 years of age. Thus, we decline to hold that the legislature

necessarily considered the relationship between age and culpability when it made

the SRA applicable to all defendants 18 and older. 10


       10 As the dissent correctly notes, our legislature addressed the relationship between
youth and culpability in 2005, when-in response to "'emerging research on brain
development"'-it eliminated mandatory minimum sentences for juveniles tried as adults.
Dissent at 2 (quoting LAWS OF 2005, ch. 437, § 1). The dissent would hold that our
legislature therefore "necessarily considered an offender's age when it determined that the
adult sentencing guidelines attach when the offender is 18 years old." Dissent at 2. But
the question before us is not whether the adult sentencing guidelines apply to an 18-year-
old offender-everyone agrees that they do. The question is whether the legislature
necessarily considered emerging research on adolescent brain development (the Roper
research) when it established the standard range sentences applicable to adult offenders.
See State v. Nordby, 106 Wn.2d 514,518 n.4, 723 P.2d 1117 (1986) ("[f]or example, the
sentencing judge may not list the offender's criminal history as a reason to justify an
exceptional sentence since criminal history is one of the two components (the other being
the seriousness of the offense) used to compute the presumptive range").

        For all the reasons given above, we hold that the answer is no: the legislature did
not necessarily consider the Roper research when it established the standard range
sentences applicable to offenders 18 and over. To be sure, it considered that research in
2005 and amended a juvenile sentencing law in response. But the dissent reads far too
much into the amendment, interpreting it as a bar to any youth-related exceptional
sentencing under the SRA. See dissent at 2 (arguing that the defendant's relative youth can
never justify an exceptional sentence because "the legislature reviewed the relevant
literature and had the opportunity to reevaluate the age at which the adult sentencing
                                             15
State v. 0 'Dell (Sean Thompson), No. 90337-9



                  2. Scientific advances in the study ofadolescent brain development,
                     unavailable to the Ha'mim court, show that youth can
                     significantly mitigate culpability

       This court recognized in Ha 'mim that youth might be relevant to one of the

mitigating factors listed in current RCW 9.94.535: an impairment of the defendant's

"capacity to appreciate the wrongfulness of his or her conduct or to conform his or

her conduct to the requirements of the law." 132 Wn.2d at 846 (citing former RCW

9.94A.390(1)(e) (1996)). But the Ha'mim court then went on to conclude that the

record before it contained "no evidence . . . that the Defendant's capacity to




guidelines attach").    This 1s a radical departure from our case law on exceptional
sentencing.

        Finally, it is not entirely clear what the dissent thinks the trial court may consider
when sentencing a relatively young adult offender. Under the first prong of our test for
valid exceptional sentencing factors, the dissent concludes that neither age nor the Roper
research can play any role at all in the court's decision to depart from the standard range.
The dissent explains that the legislature "necessarily considered" both age and "the relevant
literature" on adolescent brain development before deciding, in 2005, to amend only the
sentencing laws applicable to juveniles tried as adults (and not those applicable to offenders
18 and over). Dissent at 2. But later the dissent makes a different and much narrower
argument: that "age alone" cannot justify an exceptional sentence. !d. at 4 (emphasis
added). This rule is consistent with our decision; we remand so that the trial court may
consider O'Dell's age and testimony, by numerous witnesses, about his general maturity
level. In light of our fundamental agreement with the dissent on this point, we think that
the dissent simply views the evidence differently than we do-it concludes, for example,
that testimony about O'Dell's hobbies is not probative of his maturity level. Dissent at 6.
But as the dissent acknowledges, "the trial court [is] in the best place to make such a
determination." !d. at 8. And in this case, the trial court did not believe it had any discretion
to do so. See supra at 5.
                                               16
 State v. 0 'Dell (Sean Thompson), No. 90337-9



 appreciate the wrongfulness of her conduct or to conform it to the requirements of

. the law were in any way impaired." Jd.

       In reaching that conclusion, this court embraced broad reasoning from the

 Court of Appeals regarding the relationship between youth and culpability:

              In the context of RCW 9.94A.390(1)(e), the Court of Appeals
       has rejected a 17-year-old's argument that his youth should have been
       considered at sentencing. State v. Scott, 72 Wn. App. 207, 218-19, 866
       P.2d 1258 (1993), aff'd, [State v.] Ritchie, 126 Wn.2d 388, 894 P.2d
       1308 (1995). The Scott opinion states:

                     Scott asserts that his youth, 17 years old at the time
              of the crime, limited his "capacity to appreciate the
              wrongfulness of his conduct or to conform his conduct to
              the requirements of the law," RCW 9.94A.390(1)(e), and
              thus, the exceptional sentence [above the standard range]
              was improper. This argument borders on the absurd.

                    Granted, teenagers are more impulsive than adults
              and lack mature judgment. However, Scott's conduct
              cannot seriously be blamed on his "lack of judgment", as
              he contends. Premeditated murder is not a common
              teenage vice.

        Scott, 72 Wn. App. at 218-19 (footnote omitted).

 ld. at 846-47 (first emphasis added).

        Having embraced this reasoning-that it is "absurd" to believe that youth

 could mitigate culpability-this court went on to explain that youth alone could not

 be a nonstatutory mitigating factor under the SRA because "[t]he age of the



                                           17
State v. O'Dell (Sean Thompson), No. 90337-9



defendant does not relate to the crime or the previous record of the defendant." Id.

at 847 (emphasis added).

      When our court made that sweeping conclusion, it did not have the benefit of

the studies underlying Miller, Roper, and Graham-studies that establish a clear

connection between youth and decreased moral culpability for criminal conduct. 11

And as the United States Supreme Court recognized in Roper, this connection may

persist well past an individual's 18th birthday: "[t]he qualities that distinguish

juveniles from adults do not disappear when an individual turns 18 [just as] some

under 18 have already attained a level of maturity some adults will never reach."

543 U.S. at 574; see also supra n.5.

      Today, we do have the benefit of those advances in the scientific literature.

Thus, we now know that age may well mitigate a defendant's culpability, even if

that defendant is over the age of 18. It remains true that age is not a per se mitigating

factor automatically entitling every youthful defendant to an exceptional sentence.

In this respect, we adhere to our holding in Ha 'mim, 132 Wn.2d at 847. But, in light

of what we know today about adolescents' cognitive and emotional development,

we conclude that youth may, in fact, '"relate to [a defendant's] crime,"' id. at 847



       11
            See Miller, 132 S. Ct. at 2464-65 ("those findings-of transient rashness,
proclivity for risk, and inability to assess consequences ... lessen[] a child's 'moral
culpability"' (quoting Graham, 560 U.S. at 67-68)); see also supra nn.5-10.
                                            18
State v. O'Dell (Sean Thompson), No. 90337-9



(quoting RCW 9.94A.340); that it is far more likely to diminish a defendant's

culpability than this court implied in Ha 'mim; and that youth can, therefore, amount

to a substantial and compelling factor, in particular cases, justifying a sentence below

the standard range.

      For these reasons, a trial court must be allowed to consider youth as a

mitigating factor when imposing a sentence on an offender like O'Dell, who

committed his offense just a few days after he turned 18. To the extent that this

court's reasoning in Ha 'mim is inconsistent, we disavow that reasoning.

      III.   THE TRIAL COURT FAILED To CONSIDER WHETHER YOUTH DIMINISHED
             O'DELL'S CAPACITY To APPRECIATE THE WRONGFULNESS OF HIS
             CONDUCT OR To CONFORM THAT CONDUCT TO THE REQUIREMENTS OF
             THE LAW

       In this case, the trial court did not meaningfully consider youth as a possible

mitigating circumstance. As detailed above, the trial court clearly believed that the

Court of Appeals' decision in Ha 'mim absolutely prohibited it from considering

whether youth diminished 0 'Dell's capacity to appreciate the wrongfulness of his

conduct or conform that conduct to the requirements of the law. See VRP (Mar. 6,

2013) at 74-7 5 ('"a defendant's incapacity to appreciate the wrongfulness of the




                                           19
State v. O'Dell (Sean Thompson), No. 90337-9



criminal conduct cannot be based on the youthfulness of the Defendant . . . '")

(emphasis added)). 12

      This failure to exercise discretion is itself an abuse of discretion subject to

reversal. State v. Grayson, 154 Wn.2d 333, 342, 111 P.3d 1183 (2005) (the trial

court's failure to consider an exceptional sentence authorized by statute is reversible

error). We therefore remand for a new sentencing hearing. At that hearing the trial

court will consider, in light of this opinion, whether youth diminished O'Dell's

culpability.

      Finally, we note that despite the scientific and technical nature of the studies

underlying the Roper, Graham, and Miller decisions, a defendant need not present

expert testimony to establish that youth diminished his capacities for purposes of

sentencing. As in a juvenile court decline hearing, where the court considers whether

a juvenile's "sophistication and maturity" support his or her prosecution as an adult,

lay testimony may be sufficient. See, e.g., State v. MA., 106 Wn. App. 493, 501


       12
          The dissent contends that the trial court considered all of the testimony "from
various acquaintances, family members, and O'Dell himself regarding his youthfulness"
and rejected it as conclusory because"' [j]ust calling somebody a "boy" doesn't make them
a "boy.""' Dissent at 5-6 (alteration in original) (quoting VRP (Mar. 6, 2013) at 74). We
disagree with this reading of the record. As noted above, when the trial court stated that
"[j]ust calling somebody a 'boy' doesn't make them a 'boy,'" it was referring specifically
to "the statement that Mr. O'Dell made, and that is, "I'm just a boy who made a mistake."
VRP (Mar. 6, 2013) at 74. The trial court did not address the statements by numerous other
witnesses regarding O'Dell's maturity level.

                                           20
State v. O'Dell (Sean Thompson), No. 90337-9



n.14, 23 P.3d 508 (2001) (affirming decline of juvenile jurisdiction in part because

"'[b]y all accounts, [M.A.] is physically very mature [and] [M.A.] has spent much

of his youth with older adults"' (some alterations in original)); State v. Toomey, 38

Wn. App. 831, 835, 690 P.2d 1175 (1984) (finding juvenile sufficiently

"sophisticat[ed]" to be prosecuted as an adult because "[w]hether by choice or not,

Toomey had been on her own for over a year. She knew how to operate in her

environment, and she readily involved herself in adult situations").

      In this case, the defense offered just such lay testimony that a trial court should

consider in evaluating whether youth diminished a defendant's culpability. E.g.,

VRP (Mar. 6, 2013) at 62-63 (mother testifying that after O'Dell committed his

offense, "[a]s I was cleaning a pack from his room so that we could move, I was

struck by the contents of his room. In his room I found his Lego collection, a poster

of Daffy Duck on Harley-Davidson, the stuffed kitty that had been on his bed since

he was born .... [H]e's only a kid. He likes to play video games, and he likes to

go hiking, and he likes to play music and tease his sisters. He rolls his eyes when

he's forced on a family outing .. .");see also id. at 42 (friend and former babysitter

of the defendant testifying that he "has lots of growing up to do"), 44 (friend

testifying that O'Dell "thinks and ... talks and ... acts like I did when I was 18-

years old .   . . . he is still forming his own identity . . . [and needs a chance to]


                                           21
State v. 0 'Dell (Sean Thompson), No. 90337-9




become a corrected and productive member of society"), 48 (family's pastor

testifying that "[w ]hen I met with [O'Dell] ... just a couple weeks ago, I saw the

same immature kid who wanted to be with good people and do good things"), 51

(family friend testifying that "[s]tudies show that boys do not mature as quickly as

girls do. This remains true for Sean O'Dell .... Even though his birth date says he

was 18, mentally, he was not"), 56 (cousin testifying that in "the time I've spent with

[O'Dell] ... I think the most grown-up thing I've ever done with him was play a

video game . . . . He's just a kid. He's a young, young kid. He's a boy."), 59 (sister

testifying that"[ e]motionally, [O'Dell]'s still just a kid who likes hanging out, video

games and family nights at the movies"). 13

                                    CONCLUSION

       In Ha 'mim, 132 Wn.2d at 847, this court held that a defendant's age, alone,

does not automatically support an exceptional sentence below the standard range

applicable to an adult felony offender. Ha 'mim contains reasoning that some,

including the trial court in this instance, have understood as absolutely barring any

exceptional downward departure sentence below the range on the basis of youth.



       13
         The dissent would hold that none of this testimony suffices to show that "age
actually diminished O'Dell's capacity to appreciate the wrongfulness of his conduct or
impaired his ability to conform his conduct to the requirements of the law." Dissent at 6.
We decline to decide that question as a matter of law. Such factual and credibility
determinations should be made by the trial court.
                                           22
State v. 0 'Dell (Sean Thompson), No. 90337-9




That reasomng has been thoroughly undermined by subsequent scientific

developments.     Accordingly, we disavow it.       We hold that a defendant's

youthfulness can support an exceptional sentence below the standard range

applicable to an adult felony defendant, and that the sentencing court must exercise

its discretion to decide when that is.

      We affirm the Court of Appeals as to 0 'Dell's conviction, but we reverse the

Court of Appeals as to O'Dell's sentence and remand for a new sentencing hearing

in accordance with this opinion.




                                          23
State v. 0 'Dell (Sean Thompson), No. 90337-9




 WE CONCUR:




                                            24
State v. O'Dell, No 90337-9
Fairhurst, J. (dissenting)




                                         No. 90337-9

       FAIRHURST, J. (dissenting)-When Sean Thompson O'Dell was 18 years

old, he raped A.N., who was only 12 years old. At sentencing, O'Dell sought an

exceptional sentence below the standard range because he committed the rape 10

days past his 18th birthday. The trial court denied O'Dell's request and imposed a

standard range·sentence. We must decide whether a defendant's age alone may form

the basis for an exceptional sentence. I would adhere to our precedent in State v.

Ha 'mim, 132 Wn.2d 834, 846, 940 P.2d 633 (1997), that held age is not a substantial

and compelling basis to grant an exceptional sentence absent evidence that age

actually affected the defendant's capacities. Because there is no such evidence here,

I respectfully dissent. 1

A.     0 'Dell is not entitled to an exceptional sentence below the standard range
       based on his age alone

       Generally, a trial court may impose a sentence outside the standard range only

if there are substantial and compelling reasons justifying the exceptional sentence.

See former RCW 9.94A.535 (2011). We use a two-part test to determine whether a



        1
        I agree with the majority on the jury instruction issue.


                                                 1
State v. 0 'Dell, No 90337-9
Fairhurst, J. (dissenting)

factor may legally support a departure from the standard sentence range. State v.

Law, 154 Wn.2d 85, 95, 110 P.3d 717 (2005). "'[F]irst, a trial court may not base an

exceptional sentence on factors necessarily considered by the Legislature in

establishing the standard sentence range."' !d. (quoting Ha 'mim, 132 Wn.2d at 840).

Second, the "'mitigating factor must be sufficiently substantial and compelling to

distinguish the crime in question from others in the same category."' !d. (quoting

Ha 'mim, 132 Wn.2d at 840).

       Beginning with the first inquiry, I agree with the State that the legislature

necessarily considered an offender's age when it determined that the adult

sentencing guidelines attach when the offender is 18 years old. See former RCW

9.94A.030(34) (2011). The majority finds fault in this conclusion because the

legislature did not have the access to recent scientific literature addressing the

psychological and neurological distinctions between juveniles and adults. See

majority at 13. To the contrary, the legislature reviewed the relevant literature and

had the opportunity to reevaluate the age at which the adult sentencing guidelines

attach. The legislature found such research pertinent only to juveniles tried as adults.

See LAWS     OF   2005, ch. 437, § 1 ("The legislature finds that emerging research on

brain development indicates that adolescent brains ... differ significantly from those




                                            2
State v. O'Dell, No 90337-9
Fairhurst, J. (dissenting)

of mature adults. It is appropriate to take these differences into consideration when

sentencingjuveniles tried as adults." (emphasis added)). 2

       Thus, the legislature has considered the offender's age on several occasions

in determining the standard range sentence. 3 The establishment of penalties for

criminal offenses is a legislative function, "'and the power of the legislature in that

respect is plenary and subject only to constitutional provisions."' State v. Varga, 151

Wn.2d 179, 193, 86 P.3d 139 (2004) (internal quotation marks omitted) (quoting

State v. Thorne, 129 Wn.2d 739, 767, 921 P.2d 514 (1996)). We should not supplant

the legislature's judgment in this matter with our own.

       Turning to the second prong, a defendant's age alone is not a sufficiently

substantial or compelling factor to distinguish the crime in question from others in

the same category. I agree with the majority and the United States Supreme Court

that "'[t]he qualities that distinguish juveniles from adults do not disappear when an

individual turns 18."' Majority at 18 (alteration in original) (quoting Roper v.

Simmons, 543 U.S. 551, 574, 125 S. Ct. 1183, 161 L. Ed. 2d 1 (2005)). But as both

recognize, "'some under 18 have already attained a level of maturity some adults


       2
         For this reason, I also reject the majority's reliance on State v. Fisher, 108 Wn.2d 419,
423-24, 739 P.2d 683 (1987). See majority at 12. In Fisher, we reasoned that the legislature could
not have possibly considered the particular vulnerabilities of specific victims. Here, the legislature
has reviewed the relevant scientific literature and understands the attendant properties that
accompany youth. However, the legislature has expressly limited the effect of such research to
juveniles tried as adults.
        3
          The legislature also could have amended the age where the adult sentencing guidelines
attach after our decision in Ha 'mim but did not.


                                                  3
State v. 0 'Dell, No 90337-9
Fairhurst, J. (dissenting)

will never reach."' !d. (quoting Roper, 543 U.S. at 574). This leads me to believe

that age is not a reliable indicator of an individual's mental and emotional faculties

for purposes of sentencing and is not alone sufficient to justify an exceptional

sentence. 4 The majority even acknowledges that a defendant's age does not

automatically result in an exceptional sentence, only in "particular cases." Majority

at 19. This reasoning implicitly recognizes the existence of a factor that distinguishes

those young adults that have the capacity to appreciate the wrongfulness of their

conduct and those that do not. A defendant's age alone cannot form the basis for an

exceptional sentence.

       This is not to say that age is irrelevant. Under the Sentencing Reform Act of

1981 (SRA), chapter 9.94A RCW, a sentencing court may impose an exceptional

sentence below the standard range if a defendant establishes that his capacity to

appreciate the wrongfulness of his conduct or to conform his conduct to the

requirements of the law was significantly impaired. Former RCW 9.94A.535(1)(e)

(20 11 ). Indeed, Ha 'mim itself recognized that age is relevant to this determination.

132 Wn.2d at 846. But a defendant may not rely on age alone. Rather, there must be

evidence that his age actually diminished his capacity to appreciate the wrongfulness




        4
         1 find this particularly true toward the "margins between adolescence and adulthood"
because "the relevant differences between 'adults' and 'juveniles' appear to be a matter of degree,
rather than of kind." Roper, 543 U.S. at 600 (O'Connor, J., dissenting).


                                                4
State v. 0 'Dell, No 90337-9
Fairhurst, J. (dissenting)

of his actions or impaired his ability to control his conduct. Here, as in Ha 'mim,

there is no such evidence.

B.     The trial court did not fail to exercise its discretion

       Under the SRA, a defendant generally may not appeal a standard range

sentence. RCW 9.94A.585(1). However, a defendant may appeal such a sentence if

the trial court refused to exercise its discretion. State v. Garcia-Martinez, 88 Wn.

App. 322,330, 944 P.2d 1104 (1997). "A court refuses to exercise its discretion if it

refuses categorically to impose an exceptional sentence below the standard range

under any circumstances; i.e., it takes the position that it will never impose a sentence

below the standard range." Id.

       Contrary to the majority's view, when read in context, the record reveals that

the trial court did not categorically refuse to consider an exceptional sentence. In

deciding whether O'Dell deserved an exceptional sentence under former RCW

9.94A.535(1)(e), the trial court heard testimony from various acquaintances, family

members, and O'Dell himself regarding his youthfulness. 5 The trial court considered

this testimony and rejected it as conclusory, stating that "[j]ust calling somebody a


        5
         See Verbatim Report of Proceedings (Mar. 6, 2013) at 42 ("He's still a kid."), 45 ("He's
a kid. He don't know any better."), 48 ("When I met with him at that time just a couple weeks ago,
I saw the same immature kid who wanted to be with good people and do good things."), 50 ("I
know that Sean is a good boy."), 51 ("He was a young boy who made an honest mistake, like many
boys his age have done. Even though his birth date says he was 18, mentally, he was not."), 53
("He's just a boy .... He is a kind boy and he wouldn't hurt anyone."), 56 ("He's just a kid. He's
a young, young kid. He's a boy. He made a stupid mistake, yes."). During allocution, O'Dell stated,
"I'm here because I'm a boy who made a mistake." Id. at 67.


                                                 5
State v. O'Dell, No 90337-9
Fairhurst, J. (dissenting)

'boy' doesn't make them a 'boy."' Verbatim Report ofProceedings (VRP) (Mar. 6,

2013) at 74. 6

       Other than these statements, O'Dell presented no evidence that his age

actually diminished his capacity to appreciate the wrongfulness of his conduct or

impaired his ability to conform his conduct to the requirements of the law. The

majority cites to testimony that O'Dell kept childish memorabilia in his room, such

as a Lego collection and that he enjoyed playing video games. Majority at 21; see

also VRP (Mar. 6, 2013) at 56, 59-60, 63. But whether an individual constructs

Legos or enjoys video games tells us little about whether he has the capacity to

appreciate the wrongfulness of his conduct. Indeed, these are activities enjoyed by

many adults. See Thane Grauel, Lego builds adult fan base, USA TODAY (Nov. 28,




       6
         The majority interprets this statement to mean that the trial court considered only O'Dell's
statement and not comments from other witnesses. Majority at 19 n.l2. But the court referenced
O'Dell's statement that he was "just a boy" because it reflected the entirety of the comments made
by O'Dell's relatives and friends. See supra note 5. This becomes clear when the court's statement
is read in context. The court began by explaining that it had reviewed the mitigating circumstance
and then it noted that the entirety of the assertions made by defense witnesses could be summarized
by O'Dell's statement. VRP (Mar. 6, 2013) at 74 ("So I- I've looked over, of course, this- this
mitigating circumstance as well. And, really, I guess it comes down to the statement that Mr.
O'Dell made, and that is, 'I'm just a boy who made a mistake."' (emphasis added)). Any doubt as
to whether the trial court was addressing only O'Dell's statement or the sentencing statements as
a whole is resolved when the court then referenced a comment made by O'Dell's mother that no
one would ever refer to O'Dell as "'Mister."' Compare id. at 63 (O'Dell's mother noting that
"[n]obody would have called [O'Dell] 'Mister."'), with id. at 74 (Trial court advising that "[j]ust
calling somebody a 'boy' doesn't make them a 'boy.' And- and the fact that I use 'Mr. O'Dell'
in here is a form of respect. It's a form of respect for whatever person that comes before me,
whatever their age. I have called 7-year-olds 'mister."'). The trial court therefore not only
considered all of the sentencing testimony, but went as far as to respond to specific comments
made by O'Dell's family.


                                                  6
State v. 0 'Dell, No 90337-9
Fairhurst, J. (dissenting)

2014, 8:50 PM), http://www.usatoday.com/story/news/nation/2014/11/28/lego-

builds-adult-fan-base/19637025/; Susanna Kim, Seattle Guy's Lego Man Cave

Contains About 250,000 Pieces and a Bar, ABC NEWS (May 5, 2015, 1:05PM),

http:/labcnews.go.com/US/seattle-mans-lego-man-cave-250000-pieces-bar/story?

id=30818092; see also Entm't Software Ass'n, Essential Facts About the Computer

and Video Game Industry 3 (2015), http://www.theesa.com/wp-ontent/uploads/2015

/04/ESA-Essential-Facts-2015.pdf(finding that the average video game player is 35

years old and only 26 percent of video game players are under the age of 18 years

old). These activities in and of themselves are not particularly reflective of O'Dell's

general culpability. In short, they are neither substantial nor compelling to justify an

exceptional sentence.

         Contrary to establishing diminished culpability, the evidence from trial

revealed that 0 'Dell actually possessed the capacity to appreciate the wrongfulness

of his actions. For example, during direct examination, O'Dell testified that he was

worried when he learned A.N. was 12 years old because he knew that his conduct

"couldn't be legal." VRP (Jan. 18, 2013) at 550. Moreover, it cannot be said that

O'Dell succumbed to peer pressure because of his youth. The record does not reveal

any negative influences from peer pressure. In fact, O'Dell was the most

 sophisticated and mature person involved during the weekend that the rape occurred.

 A.N. was 12 years old and in the sixth grade, and their mutual friend was 13. By



                                           7
State v. 0 'Dell, No 90337-9
Fairhurst, J. (dissenting)

contrast, O'Dell was 18 and a senior in high school. In this context, O'Dell's claim

that he was "just a boy" is suspect, VRP (Mar. 6, 2013) at 67, and the trial court was

in the best place to make such a determination. 7

       Because 0 'Dell presented no other evidence regarding his intellectual and

emotional capabilities, the trial court recognized that all that was left was 0 'Dell's

chronological age. !d. at 74 ("So we're talking about his age. He's just a week past

18 ."). Properly relying on Ha 'mim, the trial court held that youth alone was not

sufficient to warrant an exceptional sentence and concluded that there were "no

mitigating factors here." !d. at 74, 76. The trial court considered the facts and

concluded there was no basis for an exceptional sentence. This was a proper exercise

of discretion that O'Dell may not appeal. See former RCW 9.94A.585(1).




       7
           I also note that rape "'is not a common teenage vice'" that can be blamed on a lack of
judgment. Ha'mim, 132 Wn.2d at 847 (quoting State v. Scott, 72 Wn. App. 207, 219, 866 P.2d
 1258 (1993)). For this reason, the trial court likely rejected testimony from O'Dell's friends and
family that characterized his conduct as an "honest mistake." VRP (Mar. 6, 2013) at 51; see also
 id. at 57 ("Like I said, he made a stupid mistake."), 67 ("I'm here because I'm a boy who made a
mistake."). Such assertions appear flippant in the face of testimony from A.N. that O'Dell held her
down, pulled off her pants and undergarments, and forcibly raped her while she told him to stop.
See VRP (Jan. 16, 2013) at 281-84. And while force is not an element of child rape, the trial court
 stated at sentencing that "[A.N.] was traumatized. And that trauma showed up on Monday
morning .... So I believe [A.N.], and I trust in the jury's decision." VRP (Mar. 6, 2013) at 75.
A.N.'s family also testified as to the trauma inflicted on her. See id. at 23 ("[O'Dell] has made my
 granddaughter go through hell since that night. Sometimes she's okay, and then at other times she
 will revert to the age of 5 or 6."), 25 ("The nightmares. She wakes up at night crying. Her mother
 finds her in the closet hiding under covers, under her bed."), 26 ("And, eventually, [A.N.] had to
 be pulled out of school and [her mother] is now homeschooling her."), 31 ("To watch her start to
 become an independent young girl to a child that needs to be comforted and laid with each night,
 holding my hand in the car when we leave home, or needing to leave where we have gone because
 it's just too crowded and overwhelming for her to be there.").


                                                 8
State v. 0 'Dell, No 90337-9
Fairhurst, J. (dissenting)

       As we held in Ha 'mim, age alone may not form the basis for an exceptional

sentence below the standard range absent evidence that age affected the defendant's

capacities. Because there is no such evidence here, I would affirm the Court of

Appeals.




                                         9
State v. O'Dell, No 90337-9
Fairhurst, J. (dissenting)




                              10
