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      IN THE COURT OF APPEALS OF THE STATE OF                                                        4     i c ' :' i


                                           DIVISION II                                 2014 NO 2 5 RIII                  19
                                                                                       STAT    OF
STATE OF WASHINGTON,                                               No. 43930 -1 - II                                    TON
                                                                                       By
                                 Respondent,


         v.



JEFFREY ALLEN TREBILCOCK,                                         Consolidated with


                                 Appellant.


STATE OF WASHINGTON,                                               No. 43950 -6 -II


                                 Respondent,


         v.



REBECCA TREBILCOCK,                                       PUBLISHED IN PART OPINION


                                 Appellant.


         MELNICK, J. —     Jeffrey and Rebecca Trebilcock appeal their bench trial convictions and

sentences for criminal mistreatment in the first degree of J. T. and criminal mistreatment in the

third degree   of   A.T.   We reject Rebecca' s' arguments that her sentence violates due process


because the trial judge relied on his own personal religious preferences when sentencing her, her

exceptional sentence violates her Sixth and Fourteenth Amendment rights to a jury determination

of aggravating factors, and her exceptional sentence improperly relies on impermissible factors.

In the unpublished portion of this opinion, we reject the Trebilcocks' other arguments except for

Jeffrey' s individual argument that the trial court improperly imposed substance abuse treatment




 To avoid confusion, we refer to Jeffrey and Rebecca Trebilcock by their first names and intend
no   disrespect.
43930 -1 - II / 43950 -6 -II



as part of        his   sentence.    We remand for the trial court to strike the substance abuse treatment


from Jeffrey' s sentence. We otherwise affirm the Trebilcocks' convictions and sentences.

                                                                FACTS


             The Trebilcocks lived in           rural    Cowlitz     County. They have four biological sons and in

2004, began adopting            children.      The Trebilcocks first          adopted     two biological    siblings:      J. T., born


in 1997,       and      A.T., born in 1999.        Subsequently, the Trebilcocks adopted three more children:

N.T., born in 1999, T.T., born in 2001, and G.T., born in 2002.

             J. T., N.T.,     and   A.T.    experienced severe neglect and abuse while living with the

Trebilcocks. The            children were not allowed           to   try different foods. The Trebilcocks would make

J. T.   and   occasionally A.T.       eat   from   a "   pig trough."       3B Report      of   Proceedings ( RP)     at   646. J. T.


and     A.T.      would also    be forced to     eat outdoors        in the   cold.   The children would be denied food


altogether        if they did   not complete      their   chores or schoolwork.            On occasion, they would have to

steal    food to         survive,   from bread      and     fruit to     dog      food,   goat   food,    and   toothpaste.      The


Trebilcocks         put an    alarm in   the    kitchen to      prevent     the   children   from stealing food.           When the


Trebilcocks caught the children stealing food, they would spank the children with a wooden

paddle.




             J. T. in    particular spent a great        deal   of   time   outside   doing      chores   barefoot.     In order to


ensure that he did not get the carpet dirty, he had to have his feet checked before he entered the

house. At times J.T. would stand outside in the cold for hours, waiting for someone to check his

feet    so   he   could go    back inside. The Trebilcocks made J. T. wash his clothes outside in a bucket


and     hang them to dry. Sometimes his clothes would not dry and he had to wear wet clothing.

J.T. also had to wash his bed sheets in the bucket outside, and if the sheets did not dry, he had to

sleep without sheets. He was frequently cold at night.



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           The Trebilcocks'         actions       gravely     affected        J. T.' s health     and     development.      Between the


ages of six and thirteen, J.T. lost weight, going from a " slightly above average" weight to less

than the third        percentile.     6B RP        at   1358.     As early as 2008, medical professionals recognized

that J. T. "   did   not    have anything        close   to   normal growth           for his     age."    6B RP   at   1321.   In March


2011, J. T.    was     brought to    a pediatric clinic           in   a "   nearly dead"       state.     6B RP   at   1368.   J. T. could


not walk without stumbling. He was trembling and had significant hypothermia. He had a heart

rate equivalent        to   one of an    unconscious            child' s.     He weighed 49 pounds, stood 50 inches tall,


had a concave stomach, and looked malnourished. His muscles were wasting and his bones were

visible.    He       suffered   from    untreated        eczema which              had bacterial          overgrowth.     Two different


doctors    agreed     that J. T.   appeared       very thin      and small         for his   age—    although he was then 13 years


old, J. T. looked closer to 6 to 7 years old. Dr. Danielle Parrot determined that J. T. was in critical

condition and sent           him to the emergency                room        of   the local hospital.        There, the medical staff


stabilized J. T. and then transferred him to the pediatric intensive care unit (ICU) at Doernbecher

Children' s Hospital.


           At the ICU, Dr. Thomas Valvano,                             a pediatrician and the medical director of the


Suspected Child Abuse and Neglect Program, examined J. T. and found him to be " cachectic, just

very   malnourished, no            subcutaneous          fat, very thin."           6A RP    at   1125.     Dr. Valvano found J. T.' s


case unusual and troubling because ordinarily, J.T. would be expected to remain in the same

percentile range        for his    entire    life. Yet after he moved in with the Trebilcocks, J. T.' s weight and


height dropped from the fiftieth percentile to the third percentile in comparison to other boys his

age.       Dr. Valvano discovered no medical reasons for J. T.' s cachectic state and believed

malnourishment caused               J. T.'   s   condition.      Dr. Valvano bolstered his medical analysis with the


fact that J. T.      gained weight and           thrived after he        ate a normal        diet in the hospital        over a period of
43930 -1 - II / 43950 -6 -II



eight   days. Based on Dr. Valvano' s review of J. T.' s records, his examination of J. T., and J. T.' s


progress and improvement at the hospital, Dr. Valvano opined to a reasonable medical certainty

that improper exposure to cold weather caused J. T.' s hypothermic state and that not being given

enough food to eat caused J. T.' s malnourishment.


         The    day        after    J. T.'   s   hospitalization,       Child    Protective   Services ( CPS)        opened   an




investigation into the Trebilcocks. The Trebilcocks' four adopted daughters appeared frightened


and very thin when CPS visited. According to Jeffrey, the girls were on a special vegan diet and

were not allowed           to have any           sweets.    Rebecca refused CPS' s ,request to have the four adopted

girls see a doctor.


          CPS       soon   placed        J. T.   and    the four   girls      into their custody.     When CPS supervisor


Stephanie Frost       picked       the    girls   up, they    were     very   withdrawn and would      not   talk.   Frost found


this unusual based          on     her   eight years of experience.             CPS barred the Trebilcocks from visiting

J. T. at the hospital.

          J. T. began a dramatic recovery once CPS removed him from the Trebilcocks' care. In the

16 months after he moved out of the Trebilcocks' home, J. T. grew seven and a half inches and

more    than doubled         his    weight,       gaining 64     pounds.       Dr. Blaine Tolby opined that J. T.' s living

conditions     at   the Trebilcocks'              had   caused   his    poor growth.     Dr. Tolby testified J. T. suffered

incredible harm and that he " would place the severity of this particular case, as being the worst

case of chronic abuse and neglect" that he had seen in his 37 years of being a physician. 7A RP

at 1463.


          Similarly, A.T. suffered a precipitous loss of weight while in the Trebilcocks' care, and

began to    recover once           CPS       removed       her from the Trebilcocks'       care.    Before she lived with the


Trebilcocks, A.T.          was     slightly heavier than         average.       Yet at the time she was removed from the




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Trebilcocks'           care,      the twelve -year   -old   A.T.   appeared   thin    and   weighed     only 51     pounds,   12


ounces         and stood       51 inches tall.      That put her body mass index ( BMI) at 14, below the third

percentile.          She    also "   lost   some relative    height."    6B RP   at   1370.    Andrea Street, a registered


dietician, testified that A.T. remained underweight even three weeks after being removed from

the Trebilcocks' care. 5 RP at 1021.


               In less than three months of foster care, A.T. grew to 70. 4 pounds and 52.25 inches, at the

tenth     percentile        for   weight and     height.    Dr. Kenneth Wu opined that A.T.' s low intake of food


likely caused her low weight and BMI.

                                                      PROCEDURAL HISTORY


               On    May     24, 2011,       the State charged the Trebilcocks with five counts of criminal


mistreatment against                their five   adopted children.      On June 15, Jeffrey and Rebecca waived their

right     to   jury    trials.     Both signed written waivers and the trial court conducted a colloquy with


both to ensure they each understood their rights and were voluntarily waiving their right to jury

trials.    Jeffrey' s trial attorney stated that the Trebilcocks' decision to waive a jury trial had been

discussed           over a period of several months.            The State twice amended the information, charging

the Trebilcocks on July 23 with 13 counts of domestic violence criminal mistreatment against

their five adopted children with four aggravating factors.

               After    a   bench trial,      the trial court found Jeffrey and Rebecca guilty of criminal

mistreatment            in the first degree           with   domestic     violence     of   J. T. (   count   1)   and   criminal




mistreatment in the third degree with domestic violence of A.T ( count 3) and acquitted Jeffrey

and Rebecca of the remaining counts. The court also found two aggravating factors pertaining to

count 1:         first, the crime involved domestic violence that was part of an ongoing pattern of

psychological and physical abuse, and second, the Trebilcocks used their position of trust,




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confidence, or      fiduciary   responsibility to    commit     the crime.    At the sentencing hearing, the trial

court commented on Rebecca' s testimony about her biblical convictions on diet and contrasted

Rebecca' s conduct with " the importance of safeguarding and protecting children in our society

and   keeping    them       from harm     and offense."   11 RP     at   2729 -30.      The court then referenced a


biblical quote:


          This is the   phrase    that   some of you   may be familiar        with: "   Which one of you, if
          his son asks him for bread, will he give them a stone, or if he asks [ sic] a fish, will
          he   give   him    serpent ?"     Your children asked for bread and for reasons which
          baffle, literally baffle the bulk of society, you gave them a stone.

11 RP at 2730.


          The trial court sentenced Jeffrey to a standard range sentence of 60 months on count 1

and 364      days   on count     3, to be   served   consecutively.        The trial court also ordered Jeffrey to

undergo treatment and evaluation for substance abuse as a condition of his misdemeanor

criminal mistreatment          in the third degree   conviction.     Based on the two aggravating factors, the

trial court sentenced Rebecca to an exceptional sentence above the standard range and found that

the    grounds      for the aggravating       circumstances "     taken together or considered individually,

constitute sufficient cause to impose the exceptional sentence" of 96 months on count 1 and 364

days   on count     3, to be   served    consecutively. CP ( filed    at   COA Oct. 9, 2013)     at   10.   Both Jeffrey

and Rebecca appeal.


                                                      ANALYSIS


I.         SENTENCE NOT BASED ON THE TRIAL COURT' S RELIGIOUS BELIEFS


           Rebecca first argues the trial judge violated her Fourteenth Amendment2 right to due

process by considering his own religious beliefs in setting the length of her sentence, and thus


2"
     No   state shall ...    deprive any person of life, liberty, or property, without due process of law."
U. S. CONST.      amend.     XIV, § 1.



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43930 -1 - II / 43950 -6 -II




her sentence must be vacated and her case remanded for resentencing before a different judge.

This is an issue of first impression in Washington State. Because the trial judge did not inject his

own personal religious beliefs into sentencing or sentence Rebecca based solely on those beliefs,

we hold no constitutional violation occurred and we affirm Rebecca' s sentence.

           The sentencing           process       must   satisfy the     requirements         of   due   process.    Gardner v.


Florida, 430 U. S. 349, 358, 97 S. Ct. 1197, 51 L. Ed. 2d 393 ( 1977).                                We review constitutional


challenges de novo. State v. Vance, 168 Wn.2d 754, 759, 230 P. 3d 1055 ( 2010).


           Federal case law prohibits a judge from making his own " personal religious principles"

the   explicit     basis   of a   sentencing      decision.    United States v. Bakker, 925 F. 2d 728, 741 ( 4th Cir.


1991).          In Bakker, when sentencing a well -known televangelist for mail and wire fraud, the

district   court said, "     He had no thought whatever about his victims and those of us who do have a

religion are ridiculed as           being    saps   from money -grubbing           preachers or priests."      925 F.2d at 740


 emphasis         added).     The court held that this statement was error because a judge' s religious


beliefs are irrelevant for sentencing purposes, and therefore due process is violated when a judge

 impermissibly         takes      his   own religious characteristics           into   account     in sentencing."   925 F. 2d at


740.


            On the other hand, numerous federal courts agree that it is not reversible error for a court

to use religious language to express a secular concept. In Gordon v. Vose, 879 F. Supp. 179, 184

 D. R.I. 1995), the         state   sentencing      court referred     to   a   biblical   verse: "   no man should take more


than he is willing to             give."    The district court affirmed because the sentencing court did not

express a personal religious preference or                    bias, but merely         articulated a secular principle: "   that if


one commits a serious crime,                 he   must expect     to   receive a severe punishment."            Gordon, 879 F.


Supp.      at   185.
43930 -1 - II / 43950 -6 -II



          In United States       v.   Traxler, 477 F. 3d 1243, 1248 ( 10th Cir. 2007), the court explicitly


referred   to the biblical letters      of   Paul, stating, "[ G] ood things   can come     from jail.   A guy named

Paul   was put   in jail    a couple    thousand      years ago and wrote a    bunch   of   letters from jail ...   and




people are still reading those letters and being encouraged by them and finding hope in them

thousands of     years     later."    The court rejected the defendant' s due process challenge, concluding

the judge' s comments in no way suggested Traxler needed a longer sentence to " pay religious

penance."     Traxler, 477 F. 3d.        at   1249.    Instead, the religious reference was meant to convey a

secular    message: "       that something       good    can   come   from difficult .circumstances, even jail."


Traxler, 477 F. 3d at 1249.

          In Arnett    v.   Jackson, 393 F. 3d 681, 683 ( 6th Cir. 2005),              the Sixth Circuit similarly

affirmed where the trial court merely referenced religion in order to convey a secular principle.

There, the trial court quoted two verses from the Bible when sentencing the defendant on

numerous counts of rape of a minor. The Sixth Circuit held that the trial court' s comments did

not violate Arnett' s due process rights because the sentencing judge made no reference to her

own religious beliefs; instead, one plausible interpretation of the Biblical quotation was that it

underscored "    that our society has a long history of sternly punishing those people who hurt

young     children."   Arnett, 393 F. 3d at 687. The Sixth Circuit held that although reasonable minds


could question the sentencing court' s mentioning the Bible, the sentencing court properly

considered numerous aggravating and mitigating factors. Arnett, 393 F.3d at 687.

           Similarly, numerous state supreme courts have affirmed sentences where the judge' s

religious comments merely acknowledge generally accepted principles rather than basing

sentences on highly personal religious beliefs. See, e.g., State v. Arnett, 88 Ohio St. 3d 208, 221-

22, 724 N.E. 2d 793 ( Ohio 2000) ( upholding               sentence because biblical reference was not the sole



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43930 -1 - II / 43950 -6 -II



basis for the        sentences,      but    was one of         many factors the trial judge       considered);     Poe v. State, 341


Md. 523, 533, 671 A. 2d 501 ( Md. 1996) ( upholding                             sentence when      sentencing judge          said, "   I still


believe in good old- fashioned law and order, the Bible, and a lot of things that people say I

shouldn'     t believe       anymore"         prior     to sentencing); Gordon v. State, 639 A.2d 56, 56 ( R.I. 1994)



 upholding sentence when sentencing judge referred to the Bible by saying that " no man takes

more       than he'    s   willing to       give ");    People    v.   Halm, 81 N.Y.2d 819, 820, 611 N.E. 2d 281 ( 1993)


 upholding          sentence        for sodomy           when      sentencing judge          referred    to " Biblical       times"      and




expressed his opinion about the seriousness of the crime).


            Here, during sentencing, the trial judge referenced a biblical quote when he stated:

                   At trial, Mrs. Trebilcock testified about being biblically convicted about
            proper eating and diet.
                          This may be familiar to                 some —this        phrasing —and the reason I make
            mention of this is because I really think it' s important to mention and underscore
            the importance of safeguarding and protecting children in our society and keeping
            them from harm and offense. This is the phrase that some of you may be familiar
            with: "    Which one of you, if his son asks him for bread, will he give them a stone,
            or    if he    asks a   fish,   will   he   give   him     serpent ?"   Your children asked for bread and,
            for reasons which baffle, literally baffle the bulk of society, you gave them a
            stone.




11 RP       at    2729 -30.      Like the biblical references in Gordon v. Vose and Traxler, this reference


            underscores a secular principle: "                   safeguarding       and   protecting   children   in   our   society."     11
merely


RP    at   2729.      And as in Arnett v. Jackson and State v. Arnett, the biblical reference constituted


only one of many factors the sentencing judge considered in imposing Rebecca' s sentence.

            Here, the trial court relied on the fact that the children were left " damaged, sick, and, in

the   case       of [ J. T.],   nearly dead."            11 RP     at   2728.   The trial court relied on the length of the


ongoing          abuse.     The trial court relied on evidence at trial that the children only gained " seven

pounds       in    seven years"        and     that "[   t] here was rationing, there was withholding, there was even




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43930 -1 - II / 43950 -6 -II



the dramatic step           of                  motion alarms          to   prevent   the   children   from eating."   11 RP at
                                 setting up


2729.       The trial court relied on the fact that Rebecca had ample opportunity to observe the

condition of      the      children and        should   have     noticed     that J. T.   was   in distress " from five broken


ribs."   11 RP    at    2731.       The record makes it amply clear that the trial court based its sentence on

the   totality   of   the   facts     and    the severity   of   the Trebilcocks' "         woefully derelict and shamefully

deficient" caretaking. 11 RP at 2729.


            Further, the trial court made the biblical reference in response to the Trebilcocks


introducing      the issue          of religion       and   biblical authority into the           proceedings.     Specifically,

Rebecca testified that she felt " biblically convicted" to follow a limited and vegan diet for herself

and   the   children.       10A RP       at   2348.    We hold that the trial court did not inject his own personal


religious beliefs into the sentencing hearing and that the court did not violate Rebecca' s due

process rights.



II.         REBECCA' S SENTENCE DID NOT VIOLATE SIXTH AND FOURTEENTH AMENDMENT RIGHTS

            Rebecca also argues that her exceptional sentence violated her Sixth and Fourteenth

Amendment         rights     to   a   jury    determination      of   aggravating factors.       Specifically, Rebecca argues

that because she waived her jury trial right before the State amended the information to add the

aggravating factors, her waiver applied only to a finding of guilt on the charges and not to a

determination         of    the aggravating        factors.      We disagree.         Because Rebecca validly waived her

right to a jury trial,3 acquiesced to the trial court determining the aggravating factors, and never
attempted to revoke her waiver, we affirm her exceptional sentence.


            A criminal defendant has the right to have a jury decide any aggravating factor that

supports an exceptional sentence.                     Blakely v. Washington, 542 U.S. 296, 302, 124 S. Ct. 2531,

3 Rebecca' s jury trial waiver is discussed in more detail in the unpublished .portion of this
 opinion.




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43930 -1 - II / 43950 -6 -II



159 L. Ed. 2d 403. ( 2004).                A   criminal        defendant, however, may                   waive   that   right.   State v.


Hughes, 154 Wn. 2d 118,                  133 - 34,    110 P. 3d 192 ( 2005) ( citing                 Blakely,     542 U. S. at 310),


abrogated on other grounds by Washington v. Recuenco, 548 U.S. 212, 126 S. Ct. 2546, 165 L.

Ed. 2d 466 ( 2006).            The filing of an amended information, standing alone, does not render a

defendant'   s waiver of a right           ineffective.          See State v. Modica, 136 Wn. App. 434, 445 -46, 149

P. 3d 446 ( 2006) ( upholding            waiver of counsel that occurred prior to amended information being

filed). Instead,     we     look to the     specific       facts   of   the   case. "[   A] record sufficiently demonstrates a

waiver of the right to trial by jury if the record includes either a written waiver signed by the

defendant,      a   personal      expression         by    the     defendant        of   an    intent to    waive,      or an informed


acquiescence."         State     v.   Cham, 165 Wn.              App.    438, 448, 267 P. 3d 528 ( 2011) (               citing State v.

Stegall, 124 Wn.2d 719, 729, 881 P. 2d 979 ( 1994); State v. Wicke, 91 Wn.2d 638, 641 -42, 591


P. 2d 452 ( 1979)).       The State bears the burden of establishing a valid waiver, and absent a record

to the contrary,     we     indulge every       reasonable presumption against waiver.                           Cham, 165 Wn. App.

at   447. We     review     de    novo   the sufficiency of the record to                 establish a valid waiver.          Cham, 165


Wn. App. at 447.

         The record here amply demonstrates that Rebecca wanted to waive a jury for all

purposes,       including determining                the    aggravating         factors       alleged,    even though her waiver


occurred     before the information            was amended              to    add   the aggravating        factors.     Defense counsel


stated at the beginning of trial ( prior to the amended information) that the decision to waive a

jury had been       discussed         over a period of months                between the       parties.    Rebecca indicated on the


record   that   she understood she          had the        right " to   have any ...          case heard by twelve of [her] peers"

and   that   she was    opting instead to have "                 a single person, a judge, hearing the case, making a

decision."      1 RP   at   61.       Rebecca never moved to rescind her jury waiver or request a jury, even




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43930 -1 - II / 43950 -6 -II




when   the State   amended      the information to       add   the aggravating    factors.   Instead, multiple times


during trial, counsel stated that Rebecca understood and agreed that the trial judge would be

deciding    the   aggravating factors.           Specifically,      when addressing an evidentiary objection,


counsel admitted that certain evidence was admissible and would be considered by the trial court

when    considering the aggravating factors.            In closing, counsel stated that certain evidence might

go   to the trial court' s determination     of   the aggravating      factors. All of these facts demonstrate a


knowing, intelligent, and voluntary waiver of the jury to determine guilt and aggravating factors.

They also establish Rebecca' s informed acquiescence. See Cham, 165 Wn. App. at 449.

         When the trial court found that two of the four alleged aggravating factors had been

proven, Rebecca did not object to the trial court deciding the aggravating factors. At sentencing,

defense counsel commented on the trial court' s broad discretion for sentencing because of the

aggravating factors the         court   found.    Counsel also commented on the significant community

interest and pretrial publicity in the Trebilcocks' case as a primary reason for waiving the jury.

In other words, Rebecca' s decision to waive a jury was a counseled, knowing, and voluntary

strategic decision that Rebecca agreed to even after the State amended the information.

         Rebecca'   s   valid   jury    waiver    at   the   beginning   of   the trial,   as well as her informed


acquiescence to her counsel' s unchallenged statements, overcame any presumption that Rebecca

did   not make a   knowing,      intelligent,    and   voluntary    waiver.    Rebecca knew the role of the jury,

made a strategic decision to waive the jury, and stood by her decision throughout proceedings.

As such, she waived her right to have a jury determine whether the State proved aggravating

factors beyond a reasonable doubt. We hold Rebecca' s exceptional sentence does not violate her

Sixth and Fourteenth Amendment rights to a jury determination of aggravating factors, and we

affirm her exceptional sentence.




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III.      REBECCA' S EXCEPTIONAL SENTENCE BASED ON PERMISSIBLE FACTORS


          Rebecca next argues the trial court erred when it found the two aggravating factors and

based   an    exceptional     sentence      on   those factors.      First, Rebecca argues that the abuse of trust


aggravator does not apply because it applies only to crimes of intentional conduct, and because

abuse of trust is inherently a part of the underlying crime of criminal mistreatment in the first

degree.      Second, Rebecca argues that the ongoing pattern aggravating factor does not apply

because it applies only to domestic violence crimes, and because the ongoing pattern factor is

inherently    a part of    the underlying        crime of criminal mistreatment              in the first degree.         We hold


the trial    court   properly found the ongoing            pattern       aggravating factor.            Because the trial court


found that either aggravating factor alone would have been sufficient grounds to impose the

sentence,     we affirm Rebecca' s exceptional sentence without reaching her abuse of trust

argument.




          The State charged Rebecca with the aggravating factor which requires that the " current

offense     involved domestic       violence, as      defined in RCW 10. 99. 020, ...              and ... [    t] he offense was


part of an ongoing pattern of psychological, physical, or sexual abuse of a victim or multiple

                                                                                                                4
victims      manifested     by    multiple     incidents   over      a   prolonged     period      of   time. "     Under RCW


10. 99. 020, domestic        violence "     includes but is     not      limited to"   a   list   of specific offenses " when




committed      by    one   family   or    household     member against another." (            Emphasis         added.).   Rebecca


argues      that   because the       statute     does    not   specifically     list   criminal         mistreatment,     criminal




mistreatment is not domestic violence and therefore the aggravator does not apply to the crime of

criminal     mistreatment        in the first degree.       We reject her argument because the statute plainly

indicates that the list is "        not   limited to" the      enumerated crimes.            In addition, the unchallenged




4 RCW 9. 94A.535( 3)( h)(i)


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43930 -1 - II / 43950 -6 -II



findings        of   fact    are   that Rebecca     committed a crime against           J. T.,     a family member, and caused

him harm.            Accordingly, the trial court properly concluded that the criminal mistreatment in the

first degree involved domestic violence.

           Rebecca           next   argues     that the " ongoing     pattern"     of abuse aggravating factor inheres in

criminal mistreatment                in the first degree. Appellant'         s(   Rebecca) Br.           at   21.   We disagree. To be


guilty     of criminal mistreatment               in the first degree, "[      a] parent of a child"                must " cause[ ]        great




bodily     harm to          a child ...   by   withholding any       of   the basic   necessities of           life." RCW 9A.42. 020.


To find the ongoing pattern aggravating factor, the fact finder must find that the abuse occurred

over a " prolonged period of                time."    RCW 9. 94A. 535( 3)( h)( i). Rebecca argues that the offense of


criminal mistreatment in the first degree necessarily " requires an ongoing pattern, manifested by

multiple ` incidents' over a prolonged period of time" and thus the ongoing pattern is already part

of   the   criminal mistreatment               in the first degree   conviction.       Appellant'         s(   Rebecca) Br.     at   21.    We


disagree. " Criminal               mistreatment can occur over a            few days    or ...     over a much longer period of


time."      State     v.    Rotko, 116 Wn.        App.   230, 245, 67 P. 3d 1098 ( 2003).                     Criminal mistreatment in


the first degree does not inherently imply an ongoing pattern, and thus we hold the trial court did

not err when relying on the ongoing pattern aggravating factor when giving an exceptional

sentence.




            Rebecca also challenges the abuse of trust aggravating factor, but we do not reach that

challenge.           The trial court stated in its findings of fact and conclusions of law for an exceptional

sentence         that the aggravating factors, "             taken together or considered individually, constitute

sufficient       cause        to impose the         exceptional      sentence,"       and   that    it    would "        impose the same


sentence        if only      one of   the   grounds    listed in the preceding         paragraph         is    valid."    CP ( filed Oct. 9,


2013)      at   10.    Because the " ongoing pattern of abuse" aggravating factor was established, the trial



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court would have imposed the same "sentence whether or not the abuse of trust aggravating factor

applied. As a matter of law, the trial court did not rely on impermissible factors when imposing

an exceptional sentence.



         We hold that the trial court did not interject his personal religious beliefs into the


sentencing hearing, that Rebecca' s sentence did not violate her Sixth and Fourteenth Amendment

rights to a jury determination of aggravating factors, and that permissible factors exist to uphold

Rebecca' s   exceptional       sentence.    We   address    the Trebilcocks'         remaining arguments in the

unpublished portion of this opinion.



         A majority of the panel having determined that only the foregoing portion of this opinion
will be printed in the Washington Appellate Reports and that the remainder shall be filed for public

record in accordance with RCW 2. 06. 040, it is so ordered.

         In this section, we reject the Trebilcocks' joint arguments that their convictions violate

their constitutional right to an independent determination of the facts because their convictions


were based in part on impermissible opinion testimony; that their jury trial waivers were invalid;

and that their criminal mistreatment in the third degree conviction should be reversed for


insufficient evidence. We also decide Jeffrey' s individual argument that the trial court

improperly imposed substance abuse treatment as part of his sentence.

I.       OPINION TESTIMONY PROPERLY ADMITTED


         The Trebilcocks both argue that their convictions were based on an impermissible expert

opinion on    their   guilt, which violated    their   constitutional right    to    a   jury   trial.   The State argues


the Trebilcocks failed to object to the challenged testimony at trial and thus did not preserve this

issue for appeal. Although Jeffrey and Rebecca objected generally to expert testimony giving an

opinion on abuse,      they did   not   specifically   object   to the   statement   they   now challenge.       Because




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the challenged testimony did not provide an improper opinion on guilt, the Trebilcocks do not

raise a manifest constitutional error and we will not review this issue.

             We will not review an argument raised for the first time on appeal unless the challenging

party   demonstrates                a manifest constitutional error.                     RAP 2. 5(   a)(   3).   To satisfy RAP 2. 5(    a)(   3),   an




appellant first must identify a constitutional error and then demonstrate how the alleged error

affected      his      rights at     trial.    State   v.   O' Hara, 167 Wn.2d 91, 98, 217 P. 3d 756 ( 2009). An error is


manifest          if it is   so obvious on          the     record        that the      error requires appellate review.             O' Hara, 167


Wn.2d        at    99 -100.         The defendant must show actual prejudice, meaning the alleged error had

practical and            identifiable         consequences at             trial.   State v. Gordon, 172 Wn.2d 671, 676, 260 P. 3d


884 ( 2011).


             Under ER 704, an expert may not testify about a defendant' s guilt, either directly or by

inference.             State   v.   Olmedo, 112 Wn.                App.      525, 530, 49 P. 3d 960 ( 2002). "             Such an improper


opinion       undermines              a   jury' s   independent determination                    of        the facts,   and may invade the
                                                                                                                                               5
defendant'         s    constitutional         right   to    a    trial    by jury."        Olmedo, 112 Wn.             App.   at   530 -31.         An


expert's opinion, however, is not objectionable " simply because it embraces an ultimate issue the

trier   of   fact      must    decide."        State   v.   Hayward, 152 Wn.                 App.    632, 649, 217 P. 3d 354 ( 2009);                see




also    ER 704. "` [           T] hat an opinion encompassing ultimate factual issues supports the conclusion

that the defendant is guilty does not make the testimony an improper opinion of guilt. '

Hayward, 152 Wn. App. at 649 ( quoting City of Seattle v. Heatley, 70 Wn. App. 573, 579, 854

P. 2d 658 ( 1993)).                 A trial court' s decision to admit expert testimony is reviewed for abuse of

discretion. State v. Kirkman, 159 Wn.2d 918, 927, 155 P. 3d 125 ( 2007).



5
    Although the Trebilcocks had                        a   bench trial, " the            constitutional guaranty of an impartial trial
does    not       distinguish between jury                  and   bench trials." State v. Read, 147 Wn.2d-238, 249, 53 P. 3d
26 ( 2002) ( emphasis in original).



                                                                                   16
43930 -1 - II / 43950 -6 -II




         Here, Dr. Tolby, one of the State' s expertmedical witnesses, testified that that he " would

place the severity of this particular case, as being the worst case of chronic abuse and neglect"

that   he had   seen     in his 37   years of     being   a physician:       7A RP      at   1463.    Although Dr. Tolby' s

testimony touched on an ultimate legal issue, the cause of J. T.' s condition, Dr. Tolby' s testimony

did not include any opinion regarding Jeffrey' s and Rebecca' s guilt, but rather simply stated his

medical opinion that J. T.' s condition occurred because of abuse and neglect.


         Additionally, "' in the absence of evidence to the contrary, we presume the judge in a

bench trial does        not consider      inadmissible    evidence     in rendering     a verdict. '      State v. Gower, 179


Wn.2d 851, 855, 321 P. 3d 1178 ( 2014) (                quoting State v. Read, 147 Wn.2d 238, 242, 53 P. 3d 26

 2002)).    This " presumption arises because of the ` unique demands' bench trials place on judges,


 requiring them to        sit as   both   arbiters of   law   and as   finders   of   fact. '    Gower, 179 Wn.2d at 855


 quoting Read, Wn.2d           at    242).    Indeed, the trial court' s findings of fact do not reference Dr.


Tolby' s testimony         except    to   note   that the " growth charts and medical findings related to the


expected growth" were credible. CP ( filed May 28, 2013) at 29.

         Dr. Tolby' s expert testimony did not amount to an opinion on Jeffrey' s and Rebecca' s

guilt; therefore, Dr. Tolby' s testimony did not constitute manifest constitutional error.

II.      DEFENDANTS CAN WAIVE A JURY TRIAL


         The Trebilcocks next argue that under article I, section 21 of the Washington State

                6
Constitution,       a    criminal defendant may           never      waive   a   jury   trial   for   a   felony   charge.   The




6 Article I, section 21 provides:

           The right of trial by jury shall remain inviolate, but the legislature may provide
         for a jury of any number less than twelve in courts not of record, and for a verdict
         by nine or more jurors in civil cases in any court of record and for waiving of the
         jury in civil cases where the consent of the parties interested is given thereto.


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43930 -1 - II / 43950 -6 -II



Trebilcocks        argue     that the six Gunwall                factors "      suggest[ ]   that all felony cases in Washington

must    be tried to    a    jury, regardless      of   the   parties'      wishes."      Appellant' s ( Rebecca) Br. at 27.


             The Trebilcocks' argument is inconsistent with our decision in State v. Benitez, 175 Wn.


App.    116, 126, 302 P. 3d 877 ( 2013).                   Because Gunwall " addresses ` the extent of a right and not


how the       right   in    question     may be    waived, '           Gunwall is inapplicable.             Benitez, 175 Wn. App. at

126 -27 ( quoting State            v.   Pierce, 134 Wn.           App.    763, 773, 142 P. 3d 610 ( 2006)).              We further held


in Benitez that " Washington law                   allows         a   defendant to      waive    a   jury   trial."    Benitez, 175 Wn.


App.    at   127 ( citing Stegall, 124 Wn.2d                at   723. We reject the Trebilcocks' argument.


III.         THE TREBILCOCKS KNOWINGLY, VOLUNTARILY, AND INTELLIGENTLY WAIVED THEIR
             RIGHT TO A JURY TRIAL


             The Trebilcocks next argue that even if the right to a jury trial may be waived, their jury

trial   waivers       were     invalid.          The Trebilcocks contend that because the Washington State


constitutional right to a jury trial is broader than the federal right, a Gunwall analysis must be

used    to determine          whether       more      extensive        protections       are   required     to   waive    the   right.   The


Trebilcocks recognize that we rejected the same argument in Pierce, 134 Wn. App. 763, but

argue    that Pierce         was    wrongly decided              and     that   we should overturn          it here.     We rejected this


same     argument          in Benitez     and    do   so   again.        Further, because Jeffrey and Rebecca knowingly,

intelligently, and voluntarily waived their rights to a jury trial, we hold their waivers were valid.

             We   review a     jury     trial   waiver     de    novo.     State v. Ramirez- Dominguez, 140 Wn. App. 233,

239,     165      P. 3d 391 ( 2007).              The sufficiency of the record to satisfy the constitutional

requirements for waiver of the fundamental right to a jury trial may be raised for the first time on

appeal.       State   v.    Wicke, 91 Wn. 2d 638, 644, 591 P. 2d 452 ( 1979).                          The record must adequately

establish      that the defendant           waived       his     right   knowingly, intelligently,           and   voluntarily.      Pierce,


 134 Wn.       App.    at   771.    A written waiver " is strong evidence that the defendant validly waived the


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43930 -1 - II / 43950 -6 -II



jury   trial      right."    Pierce, 134 Wn.          App.    at   771.    An attorney' s representation that the defendants

waiver       is    knowing,         intelligent,     and   voluntary is         also   relevant.    Pierce,    134 Wn. App. at 771

                            Woo Won Choi, 55 Wn.               App.       895, 904, 781 P. 2d 505 ( 1989)).              Washington law
 citing State         v.



does    not require           an    extensive      colloquy     on   the    record;     instead " only a personal expression of


waiver from the defendant" is required. Pierce, 134 Wn. App. at 771 ( citing Stegall, 124 Wn.2d

at   725).        As a result, the right to a jury trial is easier to waive than other constitutional rights.

Pierce,        134 Wn.         App.     at   772 (   citing State v. Brand, 55 Wn. App. 780, 786, 780 P.2d 894

 1989)).


             Here, Jeffrey and Rebecca were informed that they had the right to have their case heard

by an impartial jury, that they could take part in the jury selection process, and that in a jury trial
the State would have to convince twelve citizens of their guilt beyond a reasonable doubt,

whereas in a bench trial the State had to convince only the judge of their guilt beyond a

reasonable           doubt.         Both Jeffrey and Rebecca signed written jury waivers stating that they

understood the rights they were giving up, that they had consulted with an attorney regarding

their decisions,                    that                   voluntarily giving up their             right   to be tried   by   a   jury.   In a
                             and           they   were




colloquy with the trial court, Jeffrey and Rebecca also confirmed that they wished to waive their

right   to   a    jury     trial.   Jeffrey' s attorney also stated that Jeffrey and Rebecca " signed the waiver of

a    jury   trial.    It was, after being discussed over a period of months now, been decided that this is

how both Parties              want    to   proceed."       1 RP at 60.


             The Trebilcocks argue that they were insufficiently apprised of their rights because their

written waiver did not make clear that they understood they were entitled to a fair and impartial

jury    or     that the       jury   would     be instructed         on   the    presumption       of   innocence.       But Washington


courts have " not required that a defendant be apprised of every aspect of the jury trial right in



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43930 -1 - II / 43950 -6 -II



order   for the defendant' s           waiver      to be   valid."    Benitez, 175 Wn. App. at 129 ( citing Pierce, 134

Wn.    App.   at   773).    Further, the Trebilcocks were " not required to be informed of `[their] right to


be    presumed      innocent        until       proven     guilty beyond      a   reasonable     doubt    or [   their] right to an


impartial trier      of    fact because these              rights    are   inherent in   all   trials'   and are not waived by

waiving the     right      to a   jury   trial."    Benitez, 175 Wn. App at 129 ( quoting Pierce, 134 Wn. App. at

772).    Accordingly, we hold that both Rebecca and Jeffrey made knowing, intelligent, and

voluntary waivers of their right to a trial by jury.

IV.      SUFFICIENT           EVIDENCE             SUPPORTS          THE    TREBILCOCKS'          THIRD     DEGREE           CRIMINAL

         MISTREATMENT CONVICTION


         The Trebilcocks next argue that the evidence is insufficient to support their convictions

for criminal mistreatment in the third degree of A.T because there was insufficient evidence of

substantial    bodily harm.               We disagree and hold there is sufficient evidence that Jeffrey and

Rebecca       caused       A.T.     substantial bodily harm and affirm Jeffrey' s and Rebecca' s criminal

mistreatment in the third degree convictions.


         To determine whether sufficient evidence supports a conviction, we view the evidence in

the light most favorable to the prosecution and determine whether any rational fact finder could

have found the        elements of           the    crime   beyond     a reasonable    doubt.      State v. Homan, 181 Wn.2d


102, 105, 330 P. 3d 182 ( 2014).                   Specifically, following a bench trial, appellate review is limited

to determining whether substantial evidence supports the findings of fact and, if so, whether the

findings   support      the   conclusions of          law. Homan, 181 Wn.2d              at    105 -06. " Substantial evidence"


is evidence sufficient to persuade a fair -minded person of the truth of the asserted premise.

Homan, 181 Wn.2d                  at     106.      We treat unchallenged findings of facts and findings of fact

                                                                                   Homan, 181 Wn.2d              at   106.   We review
supported      by   substantial evidence as verities on appeal.



challenges to a trial court's conclusions of law de novo. Homan, 181 Wn.2d at 106.



                                                                       20
43930 -1 - II / 43950 -6 -II



         A.             Findings of Fact


         Here, the Trebilcocks only challenge finding of fact 34 that states:

         For a period of approximately seven years, the defendants also withheld food, a
         necessity         of    life, from A.T.               The defendants used food as a punishment and
         reward         for A.T.,
                            and would intentionally withhold food from her if she was
         disobedient.   As a result of this withholding, A.T. suffered substantial bodily
         injury, to include very low body weight and growth stunting, and she was also
         placed at imminent and substantial risk of substantial bodily harm.

CP ( filed   May        28, 2013)         at   31.     Because this finding of fact is supported by substantial evidence,

we reject their argument.


         The evidence at trial supported a finding that the Trebilcocks withheld food from A.T. in

order   to   punish      her.        A.T. testified that both Jeffrey and Rebecca withheld food if she had not

completed her chores or schoolwork, that she was frequently hungry even after eating, and that

the Trebilcocks rarely                gave       her   more    food if   she asked       for   more.      A.T. testified that sometimes


the Trebilcocks made her eat outside and that she was cold because she did not have a coat on.

         Furthermore, the evidence at trial supported a finding that as a result of this withholding,

A.T. suffered substantial bodily injury and was put at imminent and substantial risk of substantial

bodily   harm.          Substantial            bodily    harm    means "     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 State' s medical evidence demonstrated that A.T. was below the third


percentile for height and weight when she was removed from the Trebilcocks' home and that her

condition         put   her     at    a   greater       risk   for infection      and     disease.        Specifically, for a child as

malnourished as           A.T.       was, a routine " minor              gastroenterology issue ...             may    result   in [ ] death."


6B RP        at    1372.        This evidence was sufficient to persuade a fair- minded person that the


Trebilcocks' withholding of food put A.T. at severe risk and impaired her ability to grow and


                                                                           21
43930 -1 - II / 43950 -6 -II



live   a   normal life.       We hold that finding of fact 34 is supported by substantial evidence and is

thus binding on appeal.

            B.        Conclusions of Law


            The Trebilcocks challenge conclusion of law 5, which states that the elements of criminal


mistreatment         in the third degree        were proved     beyond     a reasonable   doubt.   We disagree and


affirm the trial court.


            A person is guilty of criminal mistreatment in the third degree

            if the   person    is the   parent of a child ...   and either: (   a) With criminal negligence,

            creates an imminent and substantial risk of substantial bodily harm to a child or
            dependent person by withholding any of the basic necessities of life; or ( b) With
            criminal negligence, causes substantial bodily harm to a child or dependent person
            by withholding any of the basic necessities of life.

RCW 9A. 42. 035.             A person " acts with criminal negligence when he or she fails to be aware of a

substantial risk that a wrongful act may occur and his or her failure to be aware of such

substantial risk constitutes a gross deviation from the standard of care that a reasonable person


would exercise            in the   same situation."   RCW 9A. 08. 010( 1)( d). We hold that the findings of fact


support a conclusion that the Trebilcocks were guilty of criminal mistreatment in the third

degree.


             Unchallenged findings of fact 28 and 29 show that the Trebilcocks were A.T.' s parents.


Unchallenged finding of fact 35 establishes that the Trebilcocks acted with criminal negligence.

Finding of fact 34, which is supported by substantial evidence, establishes that the Trebilcocks

caused substantial bodily harm to A.T. and put her at imminent and substantial risk of substantial

bodily      harm     by   withholding basic      necessities of   life.   Accordingly, we hold that the findings of

fact support conclusion of law 5 and we affirm.




                                                                22
43930 -1 - II / 43950 -6 -II



V.       ERROR TO IMPOSE SUBSTANCE ABUSE TREATMENT AS PART OF JEFFREY' S PROBATION


         Jeffrey further argues the trial court erred by imposing substance abuse treatment as a

condition of his probation for his criminal mistreatment in the third degree conviction. The State

concedes this argument and agrees the court imposed the condition in error; it was " most likely a

scrivener' s error."     Resp' t' s   Br.   at   32. We accept the State' s concession and remand for the trial


court to strike the substance abuse treatment from Jeffrey' s sentence.

         While the trial court has broad discretion to impose probationary conditions on

misdemeanors and gross misdemeanors, those conditions must be reasonably related to the

crime.   State    v.   Hall, 35 Wn.         App.   302, 308, 666 P. 2d 930 ( 1983).          Here, the record fails to


indicate that Jeffrey abused any substance or that substance abuse was related to the charges.

We hold that the State' s concession is proper and we remand for a correction of Jeffrey' s

judgment and sentence.


VI.      SAG ISSUES


         Jeffrey   raises several       issues in his    statement of additional grounds (         SAG).   Although a


defendant is not required to cite to the record or authority in his SAG, he must still " inform the

court of   the   nature and occurrence of [the]              alleged errors,"    and we are not required to search the


record   to find    support    for the defendant'        s    claims.   RAP 10. 10( c).      Because Jeffrey does not

provide support for his alleged errors, we do not reach his claims.

         A.        Delays


         Jeffrey    argues   that     his   case was   delayed for two          years.   However, the record does not


show that Jeffrey asserted his right to a speedy trial prior to trial, and thus Jeffrey is not entitled

to relief.




                                                                 23
43930 -1 - II / 43950 -6 -II



           B.           Lack of Time with Lawyer


           Jeffrey argues that his lawyer did not spend enough time on his case. The record does not

indicate how much time Jeffrey' s lawyer spent working on his case. Matters outside of the

record must be raised in a personal restraint petition. See State v. McFarland, 127 Wn.2d 322,

335, 338 n.5, 899 P. 2d 1251 ( 1995).


           C.           Outside -of -Court Conduct


           Jeffrey argues that his lawyer had casual social contact with the judge and the prosecuting

attorney. This information is not a part of the record and must be raised in a personal restraint

petition. See McFarland, 127 Wn.2d at 338 n.5.


           Jeffrey also complains of CPS' s conduct outside of court, such as getting him fired from

his job.      Similarly, Jeffrey complains that the media released his personal information and that he

received      death threats from     unidentified persons.          Jeffrey complains that as a result of the media

coverage of his case, he was refused service in a store. Jeffrey complains that the detectives told

his   family      and   friends that they   would " put[ ] [   the Trebilcocks] away   for   a   long   time."   SAG at 5.


Jeffrey complains that a person named Sue Barr " said a lot of un true [ sic] stuff' on television.

SAG     at   3.   This information is not a part of the record, and even if it were, we cannot provide a


remedy for the actions of third parties outside of court.

             D.         Credibility Arguments

             Jeffrey argues that Dr. Tolby, Dr. Wu, and unspecified persons who were " involved with

these too [ sic] children when they were tooking [ sic] from the blood mother" were biased and

gave false testimony. SAG at 3. Jeffrey further argues that the children' s case worker, Tina Day,

lied.    But      we    do   not review weight     or   credibility issues   on   appeal.    State v. Camarillo, 115


Wn.2d 60, 71, 794 P. 2d 850 ( 1990).




                                                               24
43930 -1 - II / 43950 -6 -II




        E.       Bifurcated Trial


        Jeffrey argues that he wanted to be tried alone, rather than jointly with his wife. The

record does not indicate that Jeffrey ever moved for a separate trial, and thus Jeffrey is not

entitled to relief.


        F.       Jury Trial

         Jeffrey argues that he wanted a trial by jury. We have already addressed and rejected this

argument above.



         We remand for the trial court to strike the substance abuse treatment from Jeffrey' s

sentence. We otherwise affirm the Trebilcocks' convictions and sentences.




We concur:




                                                  25
