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


STATE OF WASHINGTON,                             No. 71342-6-1

                         Respondent,

                  v.                             UNPUBLISHED OPINION

DERRON PATRICK ALEXIS,

                         Appellant.              FILED: June 8, 2015

       Schindler, J. — The jury convicted Derron Patrick Alexis of unlawful

imprisonment and criminal mistreatment in the first degree of N.A. By special verdict,

the jury found N.A. was particularly vulnerable and Alexis used his position of trust to

facilitate commission of the crimes. Alexis contends insufficient evidence supports the

unlawful imprisonment conviction and the court did not properly instruct the jury on

accomplice liability. Alexis also claims the court erroneously imposed an exceptional

sentence and insufficient evidence supports the finding that N.A. was particularly

vulnerable. We affirm.
No. 71342-6-1/2


                                                FACTS


       In November 2008, Genevieve Alexis adopted eight-year-old N.A. and her two

younger brothers. The elementary school in New York placed N.A. in a special

education program. Genevieve disagreed with the placement and in August 2010, sent

N.A. to live in Washington with her adult son Derron Patrick Alexis.1

       Alexis lived with Mary Mazalic in Mukilteo. Alexis and Mazalic had been together

for over 15 years. Mazalic had a number of physical and mental health conditions,

including epilepsy, osteoarthritis, diabetes, multiple sclerosis, and bipolar disorder. The

side effects of Mazalic's epilepsy medication affected her ability "to stay awake." Alexis

was paid by the State to act as Mazalic's caregiver, including cooking meals, helping

her bathe and dress, and taking her to doctor's appointments.

       Alexis worked as an airplane mechanic four days a week during the night shift.

On his days off, Alexis frequently worked out at a gym and trained in mixed martial arts.

       Alexis shared responsibility with Mazalic for taking care of N.A. At first, N.A.

enjoyed living with Alexis and Mazalic, "[i]t was really good and nice." But beginning the

"[mjiddle" of the school year, Alexis and Mazalic began beating and torturing N.A.

        N.A. was confined to her room for up to three or four days at a time and was not

allowed to eat. Mazalic often handcuffed N.A. to a couch during the day while Mazalic

slept. N.A. was kept isolated from the other neighborhood children. Mazalic told

neighbors that N.A. was "a monster" who would hurt their children or steal from them.




        1 Because Genevieve Alexis and Derron Patrick Alexis share the same last name, we refer to
Genevieve Alexis by her first name and Derron Patrick Alexis by his last name.
No. 71342-6-1/3


       Alexis and Mazalic withheld food from N.A. At mealtimes, Alexis and Mazalic

would eat food in front of N.A. but would not allow her to eat. N.A. did not sneak food

from the kitchen cupboards because she was afraid Alexis or Mazalic would hear and

she would be punished. N.A. sometimes surreptitiously ate the dog's food.

       Mazalic and Alexis physically abused N.A. Mazalic would gag N.A. with a sock

or a ball and hit N.A. with a belt, a wire, and extension cords. Mazalic also burned N.A.

on the wrist and ankle with cigarettes. Alexis hit N.A. with a wire and with a black belt

"[a] lot." When Alexis beat N.A., Mazalic watched.

       In August 2011, Mazalic took N.A. with her to a clothing store. Two clothing store

employees said N.A. appeared "emaciated," was "trembling," and had a deep open

gash on her wrist. One of the employees testified that she "knew something was wrong

by [N.A.'s] appearance" because her "bones were protruding" and "[h]er cheeks were

sunken in. . . . She just looked way too thin for a child." Using the name on Mazalic's

credit card receipt, the employees called Child Protective Services (CPS).

       Prior to taking N.A. into protective custody, Mukilteo Police Department Corporal

Gary Marienau interviewed Alexis. Alexis told Corporal Marienau that Mazalic was his

significant other and that he and Mazalic planned to adopt N.A. When asked about the

marks on N.A.'s body, Alexis claimed they were from "plants and bushes in the back of

the residence."

       Medical professionals examined N.A. and diagnosed her with severe malnutrition

and a kidney infection. N.A. had abrasions, bruising, and scarring consistent with

cigarette burns and high-velocity whipping with a looped cord and a belt buckle. N.A.
No. 71342-6-1/4


had no subcutaneous fat and had prominent muscle wasting, low body temperature,

pancreatic and liver inflammation, and a distended abdomen. The forensic nurse who

examined N.A. testified that in 12 years of practice, she had never seen a child as

malnourished as N.A.

       Snohomish County Sheriff's Office Detective Tyler Quick recorded the interview

with Alexis. Alexis told Detective Quick that he and Mazalic shared responsibility for

taking care of N.A. Alexis stated that he was close to N.A., that N.A. called him "dad,"

and that "he would know" if N.A. had any medical problems. Alexis said N.A. received

plenty offood and "didn't miss any meals." Alexis described the large meals that N.A.
would eat and said they took her "to all-you-can-eats where she would eat herself sick

to where her belly swelled up." Alexis said he worked four days a week on swing shift

but he had Wednesdays, Thursdays, and Fridays off and "always" made sure N.A. was

fed. Alexis denied he had ever "raised a hand" to N.A. When asked if Mazalic ever hit

N.A., Alexis said, "Absolutely not."

       The State charged Alexis with criminal mistreatment in the first degree and
unlawful imprisonment.2 The State also alleged as aggravating factors that Alexis knew
or should have known that N.A. was particularly vulnerable or incapable of resistance

under RCW 9.94A.535(3)(b) and that he used his position of trust or confidence to

facilitate the commission of the offenses under RCW 9.94A.535(3)(n).




        2The Statealso charged Mazalic. In a separate trial, thejury convicted herofcriminal
mistreatment in the first degree, assault ofa child in the first degree, and tampering with a witness.
No. 71342-6-1/5


       Before trial, the court granted the defense motion to exclude some of the

evidence of Mazalic's conduct against N.A.3 but ruled the following evidence was

admissible:


       1.    Burning N.A. with cigarettes
       2.    Hitting N.A. with extension cords
       3.    Hitting N.A. with her clothes off
       4.    Hitting N.A. with a black belt
       5.    Hitting N.A. with "a stiff wire with red things on the end."
       6.    Making N.A. go without food
       7.    Eating meals in front of N.A. when she could not eat
       8.    Beating N.A. in various areas of the home
       9.    Making N.A. wear diapers . . .
       10.   Making N.A. sleep in a tent in the backyard
       11.   Making N.A. . .. eat "jail food"
       12.   Listening in on N.A.'s phone conversations with Genevieve Alexis
       13.   Beating N.A. until she needed a break, then would beat N.A. again
       14.   Putting a squeeze ball into N.A.'s mouth to stifle her screams.

       Twenty-nine witnesses testified during the five-day jury trial. Detective Quick's

interview with Alexis was admitted and played for the jury.

       Pediatrician and child abuse expert Dr. Kenneth Feldman testified N.A. had "a lot

of sores on her skin . . . , some of which are circular, small ulcerations or scars," and "a

lot of pigmentary change where she is darker than normal because of previous skin




       3 The court ruled the following evidence was excluded:
       1.    Threats to kill N.A. and dump her body
       2.    Attempts to drown N.A. in a bathtub
       3.    The application of ice on N.A.'s wounds
       4.    Making N.A. put a pee-filled diaper on her head
       5.    Making N.A. take cold showers
       6.    Putting soap in N.A.'s food
       7.    Making N.A. gargle with dish soap and shampoo
       8.    Making N.A. sleep in a bathtub
       9.    Making N.A. stay in a bathroom
       10.   Cutting N.A.'s hair
       11.   Whether Mazalic wanted N.A.'s scars to show
       12. Telling N.A. [Mazalic] had done similar things to [N.A.'s adopted brother].
No. 71342-6-1/6

injury." Dr. Feldman identified a "loop-type" whipping mark on the left side of N.A.'s
chest.


         Here you can see much more formed examples of whipping a child with a
         looped cord. One of the characteristics of the whipping with a cord is that
         the blood vessels under it are compressed. The blood is pushed out from
         under the injuring object. There is also a sheer plane at the edge of the
         injuring object.
                So often with those high velocity impacts, we will get this railroad
         track appearance where the actual impact site under the cord looks pretty
         normal, but outlining either side of it is a row of broken blood vessels
         causing what we call petechiae or little capillary bursts of blood vessels
         within the skin.


Dr. Feldman identified other whipping marks on N.A.'s right chest and left thigh and

testified the marks had "somewhat of a pinker hue suggesting they are fairly acute." Dr.

Feldman testified N.A. had an E. coli bacteria infection and, if untreated, the kidney

infection was potentially fatal, particularly in N.A.'s weakened condition.

         N.A. testified. During her testimony, the prosecutor asked N.A. about statements

she had previously made to CPS investigator Jennifer Brady. N.A. admitted telling

Brady that Alexis hit her "[a] lot" with the belt and wire on her chest and side. N.A. also

said that she told Brady that Alexis refused to give her food. N.A. testified that when

Genevieve visited her in the hospital, Genevieve told her not to "say anything, and if

they ask you questions, lie about it." N.A. testified that after Mazalic left her locked in a

dog crate, Alexis came into the room with a belt in his hand and did not let her out.

         Brady testified that N.A. was initially unwilling to talk to her because the "family

could get in trouble" and N.A. said, "They are all I have." N.A. told Brady someone had

told her that "if I talk to you, my brothers will be taken away and separated." Brady

testified N.A. eventually "told me that [Alexis] hit her with a belt and a cord many times,

and that he had also given her the bad oatmeal, which was not cooked."

                                             6
No. 71342-6-1/7


       Alexis testified. He denied the charges of criminal mistreatment and unlawful

imprisonment. Alexis said there was "only one time" that N.A. did not eat and that was

because she had the flu and "wasn't hungry." Alexis testified he and Mazalic did not

have a dog crate and denied N.A. was ever locked in a dog crate.

       The court instructed the jury. The jury convicted Alexis as charged and returned

special verdicts as to the aggravating factors on both counts. The court imposed an

exceptional sentence by ordering the sentences to be served consecutively.

                                        ANALYSIS


Sufficiency of the Evidence

      Alexis contends insufficient evidence supports the conviction for unlawful

imprisonment. Sufficient evidence supports a conviction if, when viewed in the light

most favorable to the State, any rational trier of fact would find the essential elements of

the crime beyond a reasonable doubt. State v. Salinas. 119 Wn.2d 192, 201, 829 P.2d

1068 (1992). "A claim of insufficiency admits the truth of the State's evidence and all

inferences that reasonably can be drawn therefrom." Salinas, 119 Wn.2d at 201. On

review, we need not be convinced of the defendant's guilt beyond a reasonable doubt

but only that substantial evidence supports the State's case. State v. Fiser. 99 Wn.

App. 714, 718, 995 P.2d 107 (2000). We defer to the trier of fact on "issues of

conflicting testimony, credibility of witnesses, and the persuasiveness of the evidence."

Fiser, 99 Wn. App. at 719; State v. Camarillo, 115 Wn.2d 60, 71, 794 P.2d 850 (1990).

       A person is guilty of unlawful imprisonment if he or she knowingly restrains

another person. RCW 9A.40.040(1). "Restrain" means "to restrict a person's

movements without consent and without legal authority in a manner which interferes
No. 71342-6-1/8

substantially with his or her liberty." RCW 9A.40.010(6). Restraint is "without consent"

if it is accomplished by physical force, intimidation, or deception. RCW 9A.40.010(6)(a).

      An individual is an accomplice when he aids another person in committing a

crime with knowledge that his actions will promote or facilitate the commission of the

crime. RCW 9A.08.020(3). An accomplice need not participate in or have specific

knowledge of every element of the crime nor share the same mental state as the

principal. State v. Sweet. 138 Wn.2d 466, 479, 980 P.2d 1223 (1999).

       Relying on State v. Jackson, 137 Wn.2d 712, 976 P.2d 1229 (1999), Alexis

argues that accomplice liability does not extend to his mere presence or failure to act.

Alexis's reliance on Jackson is misplaced.

       In Jackson, a husband and wife were convicted of second degree felony murder

of their foster child. Jackson, 137 Wn.2d at 715. The trial court instructed the jury that

either defendant could be an accomplice to the murder if he or she failed to come to the

aid of the child. Jackson, 137 Wn.2d at 720-21. The instruction was improper because

a parent's failure to protect his or her child from abuse, without more, is not a basis for

accomplice liability. Jackson, 137 Wn.2d at 722-24.

          Here, unlike Jackson, the court correctly instructed the jury that accomplice

liability required more than Alexis's mere presence and knowledge of the criminal

activity and the evidence establishes Alexis did more than simply fail to come to the aid

of N.A.

          N.A. testified that after Mazalic locked N.A. in the metal dog crate and left, "I was

making some noise in the crate, and [Alexis] heard me, probably was thinking that Iwas
getting out, and came downstairs with a belt." Alexis denied that he and Mazalic had a

                                              8
No. 71342-6-1/9


dog crate in the house and that the event occurred. But a witness who was at the

house "quite a bit" testified Alexis and Mazalic had a large wire dog crate "[b]ig enough

for a child of [N.A.]'s size to fit in." And another witness and friend of Alexis and

Mazalic's also testified they had a dog crate in the house.

       Viewing the evidence in the light most favorable to the State, the evidence shows

Alexis slept during the day and did not like to be disturbed, and he physically abused

N.A. during the year that she lived with him. The evidence shows Alexis frequently hit

N.A. with a wire and a belt. N.A.'s body had bruising and marks consistent with being

hit with a belt. The jury could reasonably infer that Alexis promoted or facilitated the

crime of unlawful imprisonment. When Alexis heard N.A. making noise while locked in

the dog crate, he came into the room with a belt in his hand that he had previously used

to beat her. The jury could conclude Alexis intimidated N.A. to stop making noise and

remain in the locked dog crate. Sufficient evidence supports the conviction of unlawful

imprisonment.

Accomplice Liability Instruction

       Alexis argues the jury instructions improperly relieved the State of the burden of

proving accomplice liability beyond a reasonable doubt.

       We review a challenge to a jury instruction de novo, evaluating the jury

instruction "in the context of the instructions as a whole." State v. Bennett, 161 Wn.2d

303, 307, 165 P.3d 1241 (2007). " 'Jury instructions are sufficient when they allow

counsel to argue their theory of the case, are not misleading, and when read as a whole

properly inform the trier of fact of the applicable law.'" Keller v. City of Spokane, 146
No. 71342-6-1/10


Wn.2d 237, 249, 44 P.3d 845 (2002) (quoting Bodin v. City of Stanwood, 130 Wn.2d

726, 732, 927 P.2d 240 (1996)).

       Here, Jury Instruction No. 3 informed the jury that the State bore the burden of

"proving each element of each crime beyond a reasonable doubt." The "to convict"

instruction for unlawful imprisonment, Jury Instruction No. 9, accurately states the

elements of the crime and the burden of proof.4 Jury Instruction No. 10 defines when a

person acts with knowledge:

                 A person knows or acts knowingly or with knowledge with respect
      to a fact, circumstance or result when he or she is aware of that fact,
      circumstance or result. It is not necessary that the person know that the
      fact, circumstance or result is defined by law as being unlawful or an
      element of a crime.
                 If a person has information that would lead a reasonable person in
       the same situation to believe that a fact exists, the jury is permitted but not
       required to find that he or she acted with knowledge of that fact.
              When acting knowingly as to a particular fact is required to
       establish an element of a crime, the element is also established if a
       person acts intentionally as to that fact.




       4 Jury Instruction No. 9 states:
                To convict the defendant of the crime of unlawful imprisonment as alleged in
       Count 2, each of the following five elements of the crime must be proved beyond a
       reasonable doubt:
              (1) That during the time period beginning on or about the 7th day of September,
       2010 and concluding on or about the 15th day of August, 2011 the defendant restrained
       the movements of N.A. in a manner that substantially interfered with her liberty;
                 (2) That such restraint was without N.A.'s consent; and
                 (3) That such restraint was without legal authority;
                 (4) That, with regard to elements (1), (2), and (3), the defendant acted
       knowingly; and
                 (5) That any of these acts occurred in the State of Washington.
              If you find from the evidence that each of these elements has been proved
       beyond a reasonable doubt, then it will be your duty to return a verdict of guilty.
                 On the other hand, if, after weighing all the evidence, you have a reasonable
       doubt as to any one ofthese elements, then it will be your duty to return a verdict of not
       guilty.

                                                  10
No. 71342-6-1/11


       Jury Instruction No. 4 is based on 11 Washington Practice: Washington Pattern

Jury Instructions: Criminal 10.51, at 217 (3d ed. 2008), and accurately defines

"accomplice liability." Jury Instruction No. 4 states:

               A person is guilty of a crime if it is committed by the conduct of
       another person for which he or she is legally accountable. A person is
       legally accountable for the conduct of another person when he or she is
       an accomplice of such other person in the commission of the crime.
               A person is an accomplice in the commission of a crime if, with
       knowledge that it will promote or facilitate the commission of the crime, he
       either:
                 (1) solicits, commands, encourages, or requests another person to
       commit the crime; or
                 (2) aids or agrees to aid another person in planning or committing
       the crime.
               The word "aid" means all assistance whether given by words, acts,
       encouragement, support, or presence. A person who is present at the
       scene and ready to assist by his or her presence is aiding in the
       commission of the crime. However, more than mere presence and
       knowledge of the criminal activity of another must be shown to establish
       that a person present is an accomplice.
               A person who is an accomplice in the commission of a crime is
       guilty of that crime whether present at the scene or not.

       Alexis argues that because the accomplice liability instruction "was completely

silent as to the State's burden of proof and the to-convict instruction did not incorporate

accomplice liability language, the jury instructions improperly relieved the State of its

burden of proving accomplice liability beyond a reasonable doubt. We considered and

rejected the same argument in State v. Teal, 117 Wn. App. 831, 73 P.3d 402 (2003).

       In Teal, although the accomplice liability instruction did not refer to the

reasonable doubt standard and the to-convict instruction did not incorporate accomplice

liability language, we concluded that as a whole, the jury instructions satisfied due

process and did not relieve the State of its burden of proof. Teal, 117 Wn. App. at 839-




                                            11
No. 71342-6-1/12


40. Here, as in Teal, the jury instructions considered as a whole correctly informed the

jury of the State's burden of proof.

Aggravating Factor

       The jury returned special verdicts on the charged aggravating factors. The jury

found that Alexis knew or should have known N.A. was "particularly vulnerable or

incapable of resistance" and used his position of trust or confidence to facilitate the

commission of the crimes. Alexis challenges the factual basis for finding the State

proved the aggravating factor that N.A. was a particularly vulnerable victim.

       To prove a victim's vulnerability as an aggravating factor, the State must

establish the defendant knew or should have known of the victim's particular

vulnerability and vulnerability was a substantial factor in the commission of the crime.

State v. Suleiman, 158 Wn.2d 280, 291-92, 143 P.3d 795 (2006). An "evident disparity

in size and strength" between a defendant and victim may establish that a victim was

particularly vulnerable, particularly in cases involving physical assault. State v. Olive,

47 Wn. App. 147, 153, 734 P.2d 36 (1987); State v. Holvoak, 49 Wn. App. 691, 695,

745 P.2d 515 (1987). Other relevant considerations include whether the defendant

"perpetuated the abuse by psychological means designed to keep the victim within the

cycle of abuse." State v. Brown, 55 Wn. App. 738, 753-54, 780 P.2d 880 (1989). We

review whether the record supports the special verdict on an aggravating factor under

the clearly erroneous standard. State v. Fowler, 145 Wn.2d 400, 405, 38 P.3d 335

(2002).

       Alexis argues the evidence did not show N.A. was particularly vulnerable or that

her vulnerability was a substantial factor in the commission of the crimes. We disagree.


                                           12
No. 71342-6-1/13

As in Olive and Holvoak, there was an overwhelming disparity in age, size, and strength

between Alexis and N.A.


      Alexis was 44-years-old, weighed 285 pounds, frequently worked out at a gym,

and trained as a mixed martial arts fighter. At the time N.A. was taken into protective

custody, she was 10-years-old, weighed only 51 pounds, was emaciated, and was

suffering from a serious kidney infection. The jury's special verdict was supported by

the record and was not clearly erroneous.

Exceptional Sentence

      Alexis argues that the court improperly relied on facts not found by the jury in

imposing an exceptional sentence. The record does not support Alexis's claim.

      A criminal defendant has a constitutional right to have a jury determine any fact

that increases the penalty for a crime beyond the prescribed statutory maximum.

Blakelv v. Washington, 542 U.S. 296, 301, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004).

Before imposition of an exceptional sentence, a jury must first determine by special

verdict whether the State has proved the aggravating circumstances beyond a

reasonable doubt. RCW 9.94A.537(3); Blakelv, 542 U.S. at 301. Ifthe jury returns a

special verdict on the aggravating circumstances, a court may sentence the offender up

to the maximum term allowed for the underlying conviction if it finds the facts alleged

and found were sufficiently substantial and compelling to warrant an exceptional

sentence. RCW 9.94A.537(6). Whenever the court imposes a sentence outside the

standard range, it "shall set forth the reasons for its decision in written findings offact

and conclusions of law." RCW 9.94A.535.




                                           13
No. 71342-6-1/14


       Here, the court entered written findings of fact and conclusions of law in support

of the exceptional sentence. The findings state:

               The defendant was responsible for Mary Mazalic as her caregiver
       and was responsible for N.A. The defendant was N.A.'s adoptive brother.
       She was sent to his home. She was particularly vulnerable and the
       defendant knew it. The defendant was not merely a person with his "head
       in the sand." He acted alone and as an accomplice, causing N.A.'s
       severely starved, emaciated condition. Based on the jury's finding that
       N.A. was a particularly vulnerable victim, and that he abused a position of
       trust which facilitated the commission of these crimes, the court finds
       substantial [and] compelling reasons to impose an exceptional sentence.

       The court's findings that Alexis was responsible for N.A. and knew of N.A.'s

particular vulnerability reiterates the jury finding Alexis abused a position of trust and

N.A. was particularly vulnerable. The other facts recited in the court's findings—Alexis

"was not merely a person with his 'head in the sand'" and he "caus[ed] N.A.'s severely

starved, emaciated condition"—were permissible considerations in determining the

length of Alexis's sentence.

       Alexis also contends the court erred by imposing an exceptional sentence based

on the aggravating factor of abuse of a position of trust for the criminal mistreatment

conviction because abuse of a position of trust is inherent in the offense.5 See State v.

Ferguson, 142 Wn.2d 631, 647-48, 15 P.3d 1271 (2001) (a factor inherent in the

offense cannot be used as an aggravating factor). The State concedes abuse of a

position of trust is inherent in the offense of criminal mistreatment in the first degree but

argues remand is not necessary. We agree remand is not necessary.




        5A person is guilty ofcriminal mistreatment in the first degree if they are "entrusted with the
physical custody of a child" and they recklessly cause great bodily harm to that child "by withholding any
of the basic necessities of life." RCW 9A.42.020(1).

                                                  14
No. 71342-6-1/15


      We may uphold an exceptional sentence when the court would have imposed the

same sentence based upon other valid factors. State v. Jackson, 150 Wn.2d 251, 276,

76 P.3d 217 (2003). The written conclusions of law expressly state that the court would

"impose the same exceptional sentence based on each aggravating factor independent

of the other." We affirm the imposition of an exceptional sentence based on the

vulnerable victim aggravating factor.

      We affirm the jury conviction of unlawful imprisonment and criminal mistreatment

in the first degree and imposition of the exceptional sentence.




                                               ^J.m(t^&,
WE CONCUR:




  *\"C \ ^k e y /




                                          15
