FILED JUNE 6, 2023 In the Office of the Clerk of Court WA State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE
STATE OF WASHINGTON, ) No. 38765-8-III ) Respondent, ) ) v. ) UNPUBLISHED OPINION ) BRANDY J. HOOD, ) ) Appellant. )
LAWRENCE-BERREY, J. — The State brought eight charges against Brandy Hood
for assaulting and harassing her teenage daughter throughout several days in January
2020. The jury convicted Ms. Hood of seven of the charges.
Ms. Hood appeals four of her convictions on double jeopardy grounds. She also
argues the trial court erred by not treating two other convictions as the same criminal
conduct for sentencing purposes. The State cross appeals and argues the trial court erred
in treating three convictions as the same criminal conduct for sentencing purposes. We
disagree with Ms. Hood’s arguments and agree with the State’s. We reverse in part,
remand for resentencing, and direct the trial court to correct two other sentencing errors. No. 38765-8-III State v. Hood
FACTS
Report of abuse
On January 16, 2020, a Thursday, Reardan Police Chief Andrew Manke began
investigating reports that Ms. Hood was physically abusing her teenage daughter, A.S.1
A.S.’s seven-year-old sister, S.H., disclosed to school officials that their mother was
physically assaulting her sister. A.S. had not been attending school that week.
On January 17, Chief Manke went to check on A.S. at her home. As he
approached, Ms. Hood came out of the house, and he asked to speak with A.S. He told
Ms. Hood there had been a report of an altercation between her and A.S., and he wanted
to check on A.S. Ms. Hood denied there had been any problems. She said A.S. was not
home, that she would return after the weekend, and declined Chief Manke’s request to
come inside the house.
Chief Manke returned on Monday, January 20, a school holiday, to speak with
A.S. A.S. denied any abuse. Ms. Hood indicated A.S. would be back in school the next
morning. Chief Manke intended to speak with A.S. alone at school the next day, but she
1 We use initials to protect the children’s privacy. Gen. Order 2012-1 of Division III, In re Use of Initials or Pseudonyms for Child Victims or Child Witnesses, (Wash. Ct. App. June 18, 2012), https://www.courts.wa.gov/appellate_trial_courts/?fa=atc. genorders_orddisp&ordnumber=2012_001&div=III.
2 No. 38765-8-III State v. Hood
arrived late with Ms. Hood, who requested paperwork to transfer A.S. out of the school
district.
On January 21, Chief Manke returned to Ms. Hood’s home with a Child Protective
Services investigator and arrested Ms. Hood. A.S. admitted the reports of Ms. Hood
abusing her were true.
Charges
The State charged Ms. Hood with eight counts occurring on or about specific
dates and alleged the “family or household member” aggravator for each count.
See RCW 10.99.020. The counts, paraphrased for brevity, were:
Count 1: January 12, 2020, second degree assault (with scissors);
Count 2: January 10, 2020, harassment, threat to kill;
Count 3: January 11, 2020, fourth degree assault (punching face);
Count 4: January 10, 2020, second degree assault (strangulation);
Count 5: January 10, 2020, fourth degree assault (pulling hair);
Count 6: January 10, 2020, fourth degree assault (punching eye);
Count 7: January 16, 2020, fourth degree assault (holding butter knife below eye);
Count 8: January 20, 2020, fourth degree assault (punching eye).
See Clerk’s Papers (CP) at 32-34.
3 No. 38765-8-III State v. Hood
Trial
Two years after her arrest, Ms. Hood proceeded to a jury trial. A.S. testified that
she and her mother had a “toxic” relationship. 1 Rep. of Proc. (RP) (Jan. 12, 2022) at
190. A.S. recalled emotional abuse all her life, which became progressively more
physical after her younger brother moved out. S.H. described the relationship between
her sister and their mother as “bad and disappointing.” 1 RP (Jan. 13, 2022) at 311.
A.S. recalled, before January 2020, her mother slapping her hard enough that her
nose would bleed, but throughout approximately one week in mid-January 2020, the
physical abuse suddenly escalated.
A.S. recalled that “[r]eally early on it would be like her punching me in the face,
pulling my hair. Just—just pushing aggressively.” 1 RP (Jan. 12, 2022) at 192. S.H.
recalled: “My mom would yell at my sister every single day and would hit her . . . like
kick her against the wall. . . . And then every single day it got worse and worse and
worse.” 1 RP (Jan. 13, 2022) at 312. The punching and hairpulling continued through
the week. A.S.’s bruising was so severe that her mother kept her home from school for
that week.
A.S. described her mother lashing out at “elevated moments.” 1 RP (Jan. 13,
2022) at 408. When her mother was “at a 10,” something minor would set her off and she
4 No. 38765-8-III State v. Hood
would assault A.S. 1 RP (Jan. 12, 2022) at 198. A.S. described minor things such as,
“maybe the dishes weren’t put away correctly or just I didn’t do [S.H.]’s hair right one
time.” 1 RP (Jan. 12, 2022) at 196. Her mother blamed her for her brother moving out.
To A.S., it seemed like her mother was taking all her sadness and anger out on A.S. A.S.
described the abuse as constant:
It would just be like from the morning like from the moment you wake up to like—to like 1:00 or 2:00 a.m. It would just be constantly. I—I didn’t really eat. It was just so like fighting all the time. I couldn’t get a break. . . . Every day [I] was questioning whether it’s gonna stop or [if] I’m just not gonna be around anymore. . . . I thought I was gonna die.”
1 RP (Jan. 12, 2022) at 210-11. S.H. could not remember how close together the
incidents happened, other than the fact that her sister would get yelled at every day.
She was “pretty sure that they were just separate.” 1 RP (Jan. 13, 2022) at 319.
A.S. described her mother pulling her hair “all the time.” 1 RP (Jan. 12, 2022) at
193. There was no exact reason or time, and it would happen “every day.” 1 RP (Jan. 12,
2022) at 193. A.S. recalled: “[S]he would drag me into different rooms of the house with
my hair, mainly in the front and just like drag me down and forward and like walk me
into a room.” 1 RP (Jan. 12, 2022) at 194. Her mother would rip her hair out of her head
and it was thinning in the front.
5 No. 38765-8-III State v. Hood
A.S. recalled multiple instances of her mother putting her hands around A.S.’s
neck and squeezing. It ranged from her mother just grabbing A.S. to her mother trying to
strangle her. One time, A.S. was on the ground and her mother used both hands to push
her down, and A.S. had difficulty breathing and started seeing black. Her mother would
let up pressure and slap A.S. on the face and then return to pushing A.S. down. Other
times, A.S.’s mother would push her up against the wall with one hand and push her neck.
Once her mother pushed her down while she was walking up the stairs and held A.S. still
with one hand and pushed against her neck with the other.
S.H. recalled her sister being strangled on the stairs, describing an incident where
their mother grabbed A.S. by the hair, throwing her onto the stairs, and choking her. She
recalled their mother using one hand to choke her sister.
A.S. recalled a “scissors incident” early in the week. 1 RP (Jan. 12, 2022) at 192.
Something minor set her mother off while she was near her mother’s craft area, and her
mother pinned her against the window and stabbed her in the upper chest with the pointed
end of a closed pair of scissors. She stabbed A.S. at least five times and broke the skin,
causing her to bleed. A.S. still had a scar from the scissors at the time of trial. While
stabbing A.S., her mother said, “I could kill you right now.” 1 RP (Jan. 12, 2022) at 200.
A.S. was terrified and did not know if she was going to live.
6 No. 38765-8-III State v. Hood
S.H. also recalled the incident, testifying that their mother had once put scissors to
her sister’s neck and said she would kill her. Because things had been getting worse
every day, S.H. thought it was possible their mother would actually kill her sister.
S.H. recalled seeing her sister with a bloody nose and saw her skin turn red when
their mother pushed her. S.H. saw her sister with a bloody nose multiple times. One
time, she came downstairs and saw her sister in the bathroom with a bloody nose and their
mother in the dining room smoking marijuana. She recalled another time when their
mother, while in the kitchen, slapped her sister and caused her nose to bleed.
A.S. recalled multiple instances of her mother punching her, mainly on her face.
Ms. Hood would also sometimes punch her arms and grab her. In one incident in the
kitchen, her mother grabbed a butter knife and dragged it against her body, scraping her
skin.
S.H. recalled their mother punching her sister in the eye so that she got a black eye.
S.H. recalled seeing her mother punch A.S. in the eye once while in the dining room:
“[M]y mom was yelling and then my sister was like up against the wall. And then my
mom like punched her really hard in the eye and then it started like turning red. And then
like a day after that, it like turned like yellow and purple.” 1 RP (Jan. 13, 2022) at 342.
S.H. remembered it happening before Chief Manke came to the house because, when he
7 No. 38765-8-III State v. Hood
arrived, her sister had to cover the bruising with makeup. The second time Chief Manke
came, her sister did not have the black eye anymore. S.H. could not remember if her
sister had a black eye more than once.
When Chief Manke first came to their house on January 17, the girls’ mother hid
A.S. in a closet. She made them clean up the house so it would look nice when he
returned, during which time the abuse “mellowed out.” 1 RP (Jan. 12, 2022) at 205. The
girls’ mother told A.S. what to say when Chief Manke came on January 20 and directed
A.S. to wear long sleeves and makeup to cover the bruises. She also helped A.S. style her
hair so that the thinning areas were less noticeable. Chief Manke recalled that A.S.
appeared made up and was wearing a long sleeve shirt buttoned to her neck.
After Chief Manke left on January 20, Ms. Hood became mad that A.S. was not
convincing enough. She pinned A.S. against the wall and punched her in the face, giving
A.S. a black eye. Ms. Hood punched A.S. more than once in the face, but A.S. could not
count how many times.
Teresa Forshag, a nurse practitioner specializing in child abuse, examined A.S. on
January 22 and documented her injuries, photographs of which were introduced into
evidence. She testified that A.S. came in with “a lot of bruising,” including a “pretty
significant” bruised left eye, bruising on her right temple and under her chin, bruising
8 No. 38765-8-III State v. Hood
across her chest, “extensive, heavy bruising on her arms,” and bruising on her back.
1 RP at (Jan. 12, 2022) at 273. She was missing “a fair amount of hair,” had broken
blood vessels in her eye, and abrasions on her tongue and knee. 1 RP (Jan. 12, 2022) at
273.
A.S. told Nurse Forshag her mother had punched her in the eye on two occasions
the previous week. The bruising on her arms occurred when her mother grabbed her and
threw her into some furniture. She was missing hair because her mother had pulled her
by her hair. She had bitten her tongue when her mother hit her under her chin. Her knee
was scraped when her mother dragged her across the floor. Nurse Forshag was concerned
that the broken blood vessels in A.S.’s eye were due to an airway obstruction that
restricted her breathing, and A.S. disclosed her mother had choked her at least once over
the last two weeks to the point she started losing consciousness.
Ms. Hood testified in her own defense. She denied stabbing A.S. with scissors,
threatening to kill her, punching her in the face or eye, strangling her, or holding a butter
knife to her throat. She denied pulling A.S. by the hair and blamed A.S.’s hair loss on
eczema. She admitted she once slapped A.S. during an argument because she thought her
daughter was about to headbutt her. She attributed A.S.’s injuries to a fall off a
stepladder.
9 No. 38765-8-III State v. Hood
In closing argument, the State acknowledged the uncertainty as to the dates of each
offense but emphasized that it had charged the crimes as “on or about” various dates in
mid-January. 2 RP (Jan. 14, 2022) at 735.
The State argued counts 1 and 2, second degree assault with a deadly weapon and
harassment, threat to kill, had been proved by the testimony about Ms. Hood’s assault of
A.S. with the scissors and threat to kill her. Count 4, second degree assault by
strangulation, had been proved by testimony that Ms. Hood had put her hands around
A.S.’s throat and caused her to have difficulty breathing.
As to the five counts of fourth degree assault, the State argued count 3 had been
proved by the testimony about Ms. Hood punching A.S. in the face and the evidence from
Nurse Forshag that A.S. had a bruise on her right temple. Count 5 had been proved by the
testimony about Ms. Hood pulling A.S.’s hair and the evidence showing the bald patches
on A.S.’s scalp. Count 6 had been proved by the testimony about the first time Ms. Hood
punched A.S. in the eye. Count 7 had been proved by the testimony that Ms. Hood had
held a butter knife against A.S.’s skin. Count 8 had been proved by the testimony about
the second time Ms. Hood punched A.S. in the eye.
10 No. 38765-8-III State v. Hood
The jury found Ms. Hood guilty of all counts except count 7, the fourth degree
assault with the butter knife. It also returned a special verdict finding that Ms. Hood and
A.S. were members of the same family or household.
Sentencing
Ms. Hood argued that counts 2, 4, 5, and 6 were all the same criminal conduct for
sentencing purposes, as were counts 1 and 3. She therefore calculated her offender score
as a 4.
The trial court calculated Ms. Hood’s offender score as 6 on counts 1, 2, and 4, the
felony convictions. As part of its calculation, the court treated counts 4, 5, and 6—assault
by strangulation, hair pulling, and punching A.S. in the eye—as the same criminal
conduct because they all took place on the same day. It noted that acts did not have to be
committed simultaneously to be treated as occurring at the same time. The State voiced
its disagreement, arguing that “if there are time breaks in between the assaults, then they
can’t be at the same time.” 2 RP (Feb. 22, 2022) at 819. It argued that the testimony at
trial showed “that all of the assaults were separate acts. . . . [T]he Defendant formed a
new intent.” 2 RP (Feb. 22, 2022) at 820. The court interrupted, stating it agreed that the
assaults were separate acts, “[b]ut they all took place the same day and the same
11 No. 38765-8-III State v. Hood
timeframe. And I think they’re close enough to be treated as same criminal conduct.”
2 RP (Feb. 22, 2022) at 820.
The State requested that the court order an evaluation for substance use disorder
because there was testimony Ms. Hood was smoking marijuana in front of her children.
It also requested that the court impose the $100 domestic violence penalty assessment.
The court stated it would only impose mandatory legal financial obligations and agreed
with the State that the domestic violence penalty assessment was mandatory.
The court sentenced Ms. Hood to a standard range sentence of 43 months of
imprisonment followed by 18 months of community custody. It ordered Ms. Hood to
undergo an evaluation for substance use disorder and to pay the $100 domestic violence
penalty assessment.
Ms. Hood appealed and the State cross appealed.
ANALYSIS
DOUBLE JEOPARDY
Ms. Hood contends her fourth degree assault convictions—counts 3, 5, 6, and 8—
violate principles of double jeopardy. We disagree.
The prohibition on double jeopardy includes protection against being punished
twice for the same offense. State v. Villanueva-Gonzalez, 180 Wn.2d 975, 980, 329 P.3d
12 No. 38765-8-III State v. Hood
78 (2014). When a person has multiple convictions under the same statutory provision,
whether they are punished twice for the same offense depends on what the legislature has
defined as the punishable act or unit of prosecution. Id. at 980-81. For assault, the unit of
prosecution is the course of conduct of assault rather than each assaultive act. Id. at 984.
To determine whether multiple assaultive acts constitute a single course of
conduct, we look at:
- The length of time over which the assaultive acts took place, - Whether the assaultive acts took place in the same location, - The defendant’s intent or motivation for the different assaultive acts, - Whether the acts were uninterrupted or whether there were any intervening acts or events, and - Whether there was an opportunity for the defendant to reconsider his or her actions.
Id. at 985. These factors are useful, but no one factor is dispositive. Id. Instead of
mechanically balancing the factors, a reviewing court ultimately looks at the totality of
the circumstances. Id.
We disagree that double jeopardy prevents Ms. Hood from being punished
separately for the two convictions for punching A.S. in the eye, count 6 and count 8. The
testimony at trial showed that there were two distinct incidents in which Ms. Hood
punched A.S. in the eye. S.H. described A.S. being punched in the eye and covering up
13 No. 38765-8-III State v. Hood
the marks on her face with makeup before Chief Manke arrived on January 20. A.S.
testified that her mother also punched her in the eye after Chief Manke visited that day.
A.S. described her mother assaulting her after small things would set her off; we
can therefore infer that there were intervening periods of calm when she had time to
reconsider her actions. There was no testimony indicating the punches to the eye were
connected to the second degree assault and harassment involving the scissors or the
second degree assault by strangulation. Based on the totality of the circumstances, the
facts support that each incident of Ms. Hood punching A.S. in the eye was a separate
course of conduct from the felony assaults of which Ms. Hood was convicted.
We also disagree that double jeopardy prevents Ms. Hood from being separately
punished for the two convictions for pulling A.S.’s hair and punching A.S., counts 3
and 5. A.S. testified that her mother pulled her hair and hit her constantly every day for
one week. Just because A.S. could not describe each and every attack throughout the
week does not require these separate attacks to be sentenced as if they occurred together
or as if they occurred during the felony assaults A.S. described. Reviewing the totality of
the circumstances, as we must, it is obvious that the hairpulling and punching attacks
started and stopped not just throughout one day, but throughout each and every day for
14 No. 38765-8-III State v. Hood
one week. By allowing counts 3 and 5 to be punished separately, we are confident that
Ms. Hood is not being punished twice for any other attack.
SAME CRIMINAL CONDUCT
For the first time on appeal, Ms. Hood argues the trial court erred by not treating
count 1 (assault with a deadly weapon) and count 2 (harassment, threat to kill), as the
same criminal conduct for sentencing purposes. As explained below, Ms. Hood waived
her challenge to this claim of error.
While a defendant cannot generally waive a challenge to a miscalculated offender
score, “waiver can be found where the alleged error involves an agreement to facts, later
disputed, or where the alleged error involves a matter of trial court discretion.” In re
Pers. Restraint of Goodwin, 146 Wn.2d 861, 874, 50 P.3d 618 (2002). Whether multiple
offenses are the same criminal conduct is a matter of trial court discretion. State v.
Graciano, 176 Wn.2d 531, 537, 295 P.3d 219 (2013). We cannot evaluate whether the
trial court abused its discretion when it was never given the opportunity to exercise it.
We thus conclude Ms. Hood waived this challenge to her offender score and decline to
review Ms. Hood’s claim that count 1 and count 2 constituted the same criminal conduct.
15 No. 38765-8-III State v. Hood
In its cross appeal, the State argues the trial court erred in treating the three counts
charged as occurring on or about January 10, 2020, as the same criminal conduct for
sentencing purposes. We agree.
Whether two offenses constitute the same criminal conduct for sentencing is a
different inquiry than whether the offenses violate double jeopardy. State v. French,
157 Wn.2d 593, 611, 141 P.3d 54 (2006). Two crimes constitute the “same criminal
conduct” if they “require the same criminal intent, are committed at the same time and
place, and involve the same victim.” RCW 9.94A.589(1)(a). The defendant has the
burden of proving two crimes are the same criminal conduct, and we review the
sentencing court’s decision on the matter for an abuse of discretion or a misapplication of
the law. Graciano, 176 Wn.2d at 537-38.
The trial court considered count 4, count 5, and count 6, assault by strangulation,
hairpulling, and the first punch to the eye, respectively, as the same criminal conduct
because they occurred on the same day. The trial court relied on the fact that the
information charged all three assaults as occurring “on or about January 10, 2020.”
CP at 33-34. But the evidence at trial failed to establish specific dates for any of the
charges except count 8, the second punch to the eye that occurred on January 20 after
Chief Manke interviewed A.S. The testimony at trial made no temporal connection
16 No. 38765-8-III State v. Hood
between Ms. Hood strangling A.S. (count 4), pulling A.S.’s hair (count 5), and the first
time Ms. Hood punched A.S. in the eye (count 6). Because the trial court’s finding that
the crimes occurred at the same time and place is unsupported by the record, it erred in
treating these counts as the same criminal conduct.
OTHER SENTENCING ERRORS
Ms. Hood raises two additional sentencing errors; the State concedes both. We
accept the State’s concessions.
Ms. Hood first argues that the court erred in imposing the domestic violence
penalty assessment because she is indigent. The State concedes the assessment should be
struck, but disagrees it has anything to do with Ms. Hood’s indigency. We agree with the
State.
A domestic violence assessment is a penalty that a court may impose regardless of
a defendant’s indigent status and without consideration of the defendant’s ability to pay.
RCW 10.99.080(5); State v. Smith, 9 Wn. App. 2d 122, 127, 442 P.3d 265 (2019). It is
discretionary, however, and not mandatory as the State argued during sentencing.
Because the trial court clearly expressed its intent to impose only mandatory legal
financial obligations, we agree with the parties that the assessment should be struck.
17 No. 38765-8-III State v. Hood
Ms. Hood next argues the trial court lacked authority to order a substance use
evaluation and treatment. The State concedes the court lacked authority. We agree.
Under RCW 9.94A.703(3)(c), the trial court may order a defendant to engage in
substance use treatment if the substance use was crime related. S.H.’s passing reference
at trial to her mother smoking marijuana does not show that her mother’s assaultive
behavior was related to her marijuana use. A trial court may order participation in
rehabilitative programs, including chemical dependency evaluation or treatment, when the
court finds a defendant has a chemical dependency that contributed to the offense.
RCW 9.94A.607(1). The trial court made no such finding here nor would the record
support such a finding. We conclude that the trial court lacked statutory authority to order
Ms. Hood to submit to substance use evaluation and treatment as a community custody
condition.
18 No. 38765-8-III State v. Hood
Reversed in part and remanded for resentencing.
A majority of the panel has determined this opinion will not be printed in the
Washington Appellate Reports, but it will be filed for public record pursuant to
RCW 2.06.040.
Lawrence-Berrey, J. WE CONCUR: j
~,.:r. C. ~ Fearing, Staab, J.