IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON, No. 87546-9-I
Respondent,
DIVISION ONE
v.
UNPUBLISHED OPINION
MATTHEW LEE CHRISTENSON,
Appellant.
HAZELRIGG, C.J. — Matthew Christenson, in his third appeal in this case,
appeals from the judgment and sentence and the findings of fact and conclusions
of law for an exceptional sentence entered on resentencing. As relevant here,
following a 2017 trial, a jury convicted Christenson of one count of homicide by
abuse of O 1 (Count 1) and assault in the second degree of O by strangulation and
suffocation (Count 7). The jury found by special verdicts that the aggravating
factors of deliberate cruelty, a particularly vulnerable victim, and abuse of a
position of trust applied to both counts and both counts were crimes of domestic
violence. He now asserts that the sentence imposed on those convictions
deprived him of the right against double jeopardy, substantial and compelling
reasons did not justify the imposition of an exceptional sentence on his conviction
of homicide by abuse, and for the first time on appeal, the exceptional sentencing
1 O was eighteen years old at the time, had severe autism, was largely nonverbal, and had
the mental capacity of a toddler.
framework set out in the Sentencing Reform Act of 1981 2 deprives criminal
defendants of the constitutional right to a jury trial. Because he does not
demonstrate an entitlement to appellate relief, we affirm.
FACTS
The facts leading up to O’s death are well-known to the parties. 3 As we
described in our 2022 decision:
In 2014, [P], a special education teacher, lived in Auburn with her two sons, 13-year-old [J] and 18-year-old [O]. [O] was severely autistic and had the mental age of a toddler, requiring assistance with many daily tasks, including eating, dressing, using the toilet, and cleaning himself. He was largely unable to speak and would sometimes engage in minor self-harming behaviors including scratching and pinching himself.
On January 22, 2014, [P] posted an advertisement on Craigslist looking for a casual romantic partner. Christenson responded to her post and, after texting for about a week, they met for drinks. The next morning, [P] invited Christenson and his 20- year-old son, who were homeless at the time, to stay with her until they found their own place to live.
Christenson quickly took control over the lives of [P]’s family.
Before he moved in, [O] and [J] each had their own room while their mother slept in the apartment living room. Within two or three weeks of moving in, Christenson had moved [J] into the bathroom. . . . Christenson forced [J] to live in the bathroom without bedding of any kind and without the freedom to leave. Christenson told the mother that [J]’s confinement was necessary because the child was “possessed by evil spirits.” Shortly thereafter, Christenson also moved [O] into the bathroom, forcing him to sleep in the bathtub. [P] did not intervene because she “thought [Christenson] was trying to help us.”
Christenson, believing the family was unhealthy and overweight, also took control of the cooking and placed [O] and [J]
2 Ch. 9.94A RCW. 3 In rePers. Restraint of Christenson, No. 82309-4-I (Wash. Ct. App., May 31, 2022)
(unpublished), https://www.courts.wa.gov/opinions/pdf/823094.pdf; State v. Christenson, No. 77463-8-I (Wash. Ct. App., Aug. 12, 2019) (unpublished), https://www.courts.wa.gov/ opinions/pdf/774638.pdf. Pursuant to GR 14.1(c), we may reference unpublished opinions where necessary for a reasoned opinion. We cite to these opinions as procedural facts of the case on review and because the underlying facts from the trial court are known to the parties and undisputed on appeal.
3
on a strict diet. He threw away the food they had in their cupboards and severely restricted [O] and [J]’s food intake. Christenson even forced the children to eat hot peppers to regulate their bowel movements. And Christenson forced [J] and [O] to exercise for hours at a time. . . . After Christenson allowed [J] and [O] to stop exercising, he forced them to sit in ice baths, sometimes for hours.
Christenson was frequently physically violent with the children for seemingly minor reasons, such as expressing a negative opinion about the food he prepared or trying to add warm water to their bath. Christenson once hit [O] in the testicles with [O]’s favorite toy as punishment for trying to hold his mother’s hand, and his testicles became so bruised that [P] took him to the hospital. Christenson rubbed hot pepper powder into the children’s eyes. On one occasion, Christenson held [O] under water until he passed out. . . . Christenson even brought a stun gun to the home and tested it on [O].
Christenson also psychologically abused the boys. He did not allow [P] and her children to talk or look at each other or “have any kind of contact.” Christenson . . . told [P] that [O] was “smarter than what he was letting on” and just “manipulating [her] to try to take advantage so that he could be lazy.” Christenson called [O] a “nuisance” and a waste of his time. He repeatedly called the children names and told their mother that they were “ugly, worthless pieces of shit.” . . .
Despite the physical and psychological abuse, [P] never called the police, never told Christenson to stop, and never asked him to leave.
On March 5, 2014, approximately one month after Christenson moved in, [P] took [O] to see a medical professional about bruises on his testicles. Because he was nonverbal, [O] was unable to report what had happened to him. The mother told the medical staff that [O] had injured himself, later admitting this story was a lie. A few days later, [P] took [O] to the emergency room at Children’s Hospital. The doctors noted that [O] had extensive bruising and his body was covered in scratches. Again, the mother told hospital staff that [O]’s injuries were self-inflicted. But medical staff did not observe any self-injurious behavior during [O]’s hospitalization. [O] was discharged on March 20, 2014.
On March 24, 2014, [O] was admitted to the Yakima Valley School, a respite center for the developmentally disabled. [O] was again covered in extensive bruising. [P] lied to the staff and told them that the injuries occurred when [O] fell down stairs. On April 10, when she went to retrieve [O], he did not want to go with her. Scared, [O] removed his seatbelt and tried to jump out of the car as [P] was driving on the freeway.
4
Sometime between April 12 and April 13, 2014, [O] died. [J]
testified that on that night, he and [O] were sitting in their ice bath when Christenson and [P] came and took [O] out of the bath. They came back after 15 minutes and let [J] out of the bath, at which point he curled up on the floor and went to sleep.
The mother testified that she saw Christenson remove [O]
from the bathroom, but she went into the other bathroom to attend to their cannabis plants. When she came out into the living room an hour later, she saw [O] lying on the floor with a chair and sheet on top of his body. According to [P], [O] had a sock in his mouth and his hands and mouth were bound in duct tape. Christenson was sitting about 10 feet away, drinking and smoking. [P] further testified that she saw [O] gasp for breath, at which point she removed the chair, sheet, duct tape, and sock. She attempted CPR but, when she realized her efforts to revive [O] had been unsuccessful, washed and dressed [O] before calling 911. [P] decided to take [O] to the hospital herself rather than wait for an ambulance to arrive.
[J] testified that, in the middle of the night, Christenson pulled him out of the bathroom and told him to perform CPR on his brother who was lying motionless on the floor. [J] continued CPR on [O] as they drove to the hospital.
[O], however, had no vital signs and “no signs of life whatsoever” when they arrived at the hospital and was pronounced dead shortly after they arrived. 4
Our 2019 decision described the resulting prosecution and trial as follows:
On January 2, 2015, the State charged Matthew L.
Christenson with domestic violence assault in the second degree and domestic violence unlawful imprisonment of 14-year-old [J] between January 1 and May 10, 2014. . . .
On March 26, 2015, the State filed an amended information to add charges against Christenson of domestic violence homicide by abuse of [O] on or about April 12, 2014; domestic violence murder in the second degree of [O] on or about April 12, 2014; domestic violence assault in the second degree of [O] between January 1 and April 12, 2014; and felony harassment of [J] between January 1 and May 10, 2014. The State alleged several aggravating factors, including deliberate cruelty, the victims were particularly vulnerable or incapable of resistance, Christenson used his position of trust to commit the crimes, and an ongoing pattern of abuse.
.... On June 6, [2017,] the State filed a second amended information to add another count of domestic violence assault in the second degree of [O] between January 1 and April 12, 2014 and the
4 Christenson, No. 82309-4-I, slip op. at 2-5 (some alterations in original).
5
aggravating factors of deliberate cruelty, an ongoing pattern of abuse, [O] is a vulnerable victim, and Christenson used his position of trust to commit the crime. 5
A 12-day jury trial commenced in July 2017. 6 Three of the seven charged
counts before the jury are relevant to this matter, all of which were alleged as
domestic violence offenses. Count 1 charged Christenson with homicide by abuse
of O, alleging that “on or about April 12, 2014, under circumstances manifesting
an extreme indifference to human life and having previously engaged in a pattern
or practice of assault or torture of [O], did cause the death of [O], a person who
was developmentally disabled.” (Emphasis added.) For that count, the State also
alleged aggravating factors of deliberate cruelty, an ongoing pattern of abuse, O
being a particularly vulnerable victim, and Christenson using his position of trust to
commit the crime.
Count 3 charged Christenson with assault in the second degree of O,
alleging that between January 1 and April 12, 2014, Christenson “did knowingly
inflict bodily harm upon [O], which by design did cause such pain and agony as to
be the equivalent of that produced by torture.” (Emphasis added.) For that count,
the State also alleged aggravating factors of deliberate cruelty, an ongoing pattern
of abuse, O being a particularly vulnerable victim, and Christenson using his
position of trust to commit the crime.
Count 7 charged Christenson with assault in the second degree of O and
alleged that between January 1 and April 12, 2014, he “did assault [O] by
strangulation and suffocation.” (Emphasis added.) For this count, the State also
5 Christenson, No. 77463-8-I, slip op. at 1, 5. 6 Id. at 9.
6
alleged aggravating factors of deliberate cruelty, an ongoing pattern of abuse, O
being a vulnerable victim, and Christenson using his position of trust to commit the
crime.
During the State’s case-in-chief, in addition to evidence supporting the
incidents described supra, and other additional incidents not set out herein, the
prosecutor presented the testimony of O’s brother, J, that included a description of
an instance in which Christenson held O’s head underwater in an ice bath until O
passed out, and the testimony of J.C., Christenson’s son, that included details of
an incident during which Christenson, after punching O several times, placed O in
a chokehold until he lost consciousness. In closing, the State specifically argued
that the jury could rely on either incident to support its charge of assault in the
second degree by strangulation or suffocation. 7
Following jury instruction and deliberation,
[t]he jury convicted Christenson as charged. By special verdict, the jury found Christenson guilty of the aggravating factors of deliberate cruelty, the victims were particularly vulnerable or incapable of resistance, Christenson used his position of trust to commit the crimes, and an ongoing pattern of abuse. 8
In October 2017, the trial court entered a judgment and sentence (J&S), 9
determined that the aggravating factors found by the jury warranted imposition of
an exceptional sentence above the standard range, and imposed a total concurrent
7 The prosecutor also told the jury that they must unanimously agree as to which incident
the State proved beyond a reasonable doubt.
8 Id. at 10. 9 The court dismissed the conviction for murder in the second degree.
7
term of confinement of 780 months in prison followed by a 36-month term of
community custody. 10
Christenson appealed from the 2017 J&S and asserted errors unrelated to
the matter herein. 11 In August 2019, we affirmed. 12 Christenson then filed a timely
personal restraint petition that sought relief on double jeopardy grounds from his
conviction for assault in the second degree against O charged as Count 3; in May
2022, we noted and accepted the State’s concession of error on that basis,
vacated the conviction, and remanded for resentencing. 13
Back in the superior court, in September 2024, the parties filed sentencing
memoranda, and the State again requested imposition of an exceptional sentence
of 780 months based on the aggravating factors of deliberate cruelty, a particularly
vulnerable victim, and abuse of a position of trust. 14 Christenson argued that the
sentence imposed on his convictions for homicide by abuse in Count 1 and assault
in the second degree by strangulation or suffocation in Count 7 deprived him of his
right against double jeopardy and imposition of an exceptional sentence would not
be justified based on the aggravating factors found by the jury and, on that basis,
requested a sentence at the low end of the lower standard range that resulted from
10 The term of confinement imposed on Count 1 was 780 months with all other terms of
confinement imposed concurrently.
11 He asserted a deprivation of the right to counsel and trial court error in denying his
request for an evaluation of his competency to stand trial. Christenson, No. 77463-8-I, slip op. at 1, 15.
12 Id. at 1. 13 Christenson, No. 82309-4-I, slip op. at 1, 8. 14 The State also informed the court that it was not pursuing the pattern of abuse
aggravating factor the jury found as to Count 1.
8
his proposed analysis. 15 The State filed a brief opposing his double jeopardy
argument.
At the resentencing hearing, the court issued an oral ruling that imposed an
exceptional sentence of 600 months in reliance on the jury’s special verdict
aggravating factors of deliberate cruelty, a particularly vulnerable victim, and abuse
of a position of trust. 16 The court later issued findings of fact and conclusions of
law in support of its sentencing decision.
Christenson timely appealed.
ANALYSIS
I. Double Jeopardy for Homicide by Abuse and Assault in Second Degree
Christenson asserts that his convictions for homicide by abuse of O and
assault in the second degree by strangulation or suffocation of O violate the
constitutional prohibition against double jeopardy. We disagree.
A. Standard of Review and Legal Standard
Our Supreme Court has stated,
Claims of double jeopardy are questions of law, which we review de novo. The United States Constitution provides that a person may not be subject for the same offense to be twice put in jeopardy of life or limb. U.S. CONST. amend. V. Similarly, the Washington State Constitution provides that a person may not be twice put in jeopardy for the same offense. WASH. CONST. art. I, § 9.
State v. Hughes, 166 Wn.2d 675, 681, 212 P.3d 558 (2009). As relevant here, this
right “‘protects a criminal defendant from being . . . punished multiple times for the
15 If the sentencing court accepted Christenson’s arguments, his offender score would be
lower, resulting in a correspondingly lower standard sentencing range.
16 The resentencing court also imposed a 36-month term of community custody.
9
same offense.’” State v. Fuller, 185 Wn.2d 30, 33-34, 367 P.3d 1057 (2016)
(quoting State v. Linton, 156 Wn.2d 777, 783, 132 P.3d 127 (2006) (plurality
opinion)).
We have stated that our Supreme Court’s decision in
State v. Freeman, 153 Wn.2d 765, 771-73, 108 P.3d 753 (2005), sets forth the framework for the double jeopardy analysis. Freeman requires us to first look to whether there is either express or implicit legislative intent authorizing cumulative punishment. Subject to constitutional restraints, the legislature has the power to define crimes and assign punishment. [State v.] Calle, 125 Wn.2d [769,] 775[, 888 P.2d 155 (1995)]. If the intent is clear and the legislature authorizes “cumulative punishments” under two different statutes, “then double jeopardy is not offended” and the court’s double jeopardy analysis is at an end. Freeman, 153 Wn.2d at 771.
State v. Simms, 151 Wn. App. 677, 690, 214 P.3d 919 (2009), aff’d, 171 Wn.2d
244, 250 P.3d 107 (2011). Next, according to the court in Freeman,
if the legislative intent is not clear, we may turn to the Blockburger test. See Calle, 125 Wn.2d at 777-78; Blockburger v. United States, 284 U.S. 299, 304, 52 S. Ct. 180, 76 L. Ed. 306 (1932). If each crime contains an element that the other does not, we presume that the crimes are not the same offense for double jeopardy purposes. Calle, 125 Wn.2d at 777; Blockburger, 284 U.S. at 304 (establishing “same evidence” or “same elements” test); State v. Reiff, 14 Wash. 664, 667, 45 P. 318 (1896) (double jeopardy violated when “‘the evidence required to support a conviction [of one crime] would have been sufficient to warrant a conviction upon the other’”) (quoting Morey v. Commonwealth, 108 Mass. 433, 434 (1871)).
When applying the Blockburger test, we do not consider the elements of the crime on an abstract level. “‘[W]here the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not.’” [In re Pers. Restraint of] Orange, 152 Wn.2d [795,] 817[, 100 P.3d 291 (2004)] (quoting Blockburger, 284 U.S. at 304 (citing Gavieres v. United States, 220 U.S. 338, 342, 31 S. Ct. 421, 55 L. Ed. 489 (1911))).
10
153 Wn.2d at 772 (emphasis added and omitted) (some alteration in original). 17 In
conducting this test, reviewing courts “consider the elements of the crimes as
charged and proved.” Id.
B. Offenses as Charged and Proved at Trial
Here, the two crimes, as charged, read as follows:
Count 1 Homicide By Abuse That the defendant Matthew L Christenson in King County, Washington, on or about April 12, 2014, under circumstances manifesting an extreme indifference to human life and having previously engaged in a pattern or practice of assault or torture of [O], did cause the death of [O], a person who was developmentally disabled;
....
Count 7 Assault In The Second Degree—Domestic Violence That the defendant Matthew L Christenson in King County, Washington, between January 1, 2014 and April 12, 2014; did assault [O] by strangulation and suffocation.
During the State’s opening remarks at trial, the prosecutor told the jury, “[W]hat we
will prove to you is that this man, the defendant, killed [O] through homicide by
abuse. And in doing so he showed extreme indifference to human life in that it
was a pattern of assault or torture.” Thereafter, the prosecutor stated,
We will prove that he committed the crime of unlawful imprisonment for forcing [J] to live in that bathroom every single day.
We will prove that he also committed the act of assault in the second degree when he strangled, suffocated [O] in that bathtub.
During the State’s case-in-chief, in addition to the evidence of Christenson’s
assaultive and torturous behavior toward O described supra, the prosecutor
17 Given our resolution of this issue, we need not consider the remaining steps set forth in
Freeman regarding the applicability of the merger doctrine and whether the offenses have an independent purpose or effect. See 153 Wn.2d at 772-73.
11
presented the testimony of O’s brother, J, who testified that on one occasion when
Christenson had forced O into an ice bath in the bathtub, O tried to get out, and
Christenson “held [O’s] head underwater until he passed out.” J believed O had
lost consciousness because Christenson “held [O’s] head underwater for so long,
he just stopped struggling,” O “just kind of came up, and his eyes were shut,” and
“about 50 seconds later,” O’s “eyes opened and he was super confused.”
The prosecutor also presented J.C.’s testimony where he explained that
one of the worst things he saw his father do to O occurred when he “saw [his] dad
punch [O] in the face a few times and then put [O] in a headlock until [he] saw [O’s]
eyes roll in the back of his head and [O] passed out” and, when O regained
consciousness, O “started kind of like screaming again, crying” and began to “sway
back and forth, and he just looked in so much distress.”
The “to convict” instruction that the trial court provided to the jury for
homicide by abuse as charged in Count 1 read:
To convict the defendant of the crime of Homicide by Abuse, as charged in Count I, each of the following elements of the crime must be proved beyond a reasonable doubt:
(1) That on or about April 12, 2014, the defendant acted under circumstances manifesting an extreme indifference to human life;
(2) That [O] died as a result of defendant’s acts; (3) That [O] was a developmentally disabled person; (4) That the defendant previously engaged in a pattern or practice of assault or torture of [O].
The “to convict” instruction for assault in the second degree for Count 7 read:
To convict the defendant of the crime of Assault in the Second degree, as charged in Count VII, separate and distinct from acts charged in Counts II and III, each of the following elements of the crime must be proved beyond a reasonable doubt:
(1) That between January 1, 2014 and April 12, 2014, the defendant intentionally assaulted [O] by
12
(a) strangulation or (b) suffocation.
Additionally, the court provided jury instruction no. 29 that stated,
With respect to Count VII, the State alleges that the defendant committed acts of assault in the second degree by strangulation or suffocation on multiple occasions. To convict the defendant of Assault in the Second Degree in Count VII, one particular act of assault in the second degree by strangulation or suffocation must be proved beyond a reasonable doubt, and you must unanimously agree as to which act has been proved. You need not unanimously agree that the defendant committed all the acts of assault in the second degree.
Then, in closing argument, the prosecutor explained,
Count six is assault in the second degree. I believe that should actually be count seven. By strangulation or suffocation. The Defendant intentionally assaulted [O] by one of those methods. Strangulation and suffocation are actually defined differently, and you do have that.
Suffocation means to block or impair a person’s intake of air at the nose or mouth, whether by smothering or other means, with intent to obstruct the person’s ability to breathe.
Strangulation means to compress a person’s neck, thereby obstructing the person’s blood flow or ability to breathe, or to compress a person’s neck with the intent to obstruct the person’s blood flow or ability to breathe.
You heard from both [J] and [J.C.] about occasions where the Defendant deliberately inhibited and obstructed [O]’s ability to breathe. [J] described a time when [O] was in the bathtub, and the Defendant held his head underwater until he stopped struggling. [J] told you that when his brother came up from the water, his eyes were closed for like 15 seconds and then he opened his eyes. He said [O] was really super confused. [J] sobbed on the stand when he described to you how he felt in that moment, thinking his brother was dead. [J] said that this happened the day before [P] finally took her son to Children’s. That’s assault in the second degree by suffocation.
Immediately thereafter, the prosecutor stated,
[J.C.] described another circumstance in the bathroom. He told you it was the worst thing he’s ever seen and something he will never forget. He said he saw his dad swinging at [O] repeatedly.
13
Remember, he was standing in the bathroom, but behind his dad: It was pretty clear I didn’t see him connect, but I saw him swinging. And then he saw his dad with his arm around [O]’s neck on the bathroom floor, in a chokehold, squeezing, until [O]’s eyes went to the back of his head and he passed out. [J.C.] said he was only three feet away. And he sat there, too, wondering if [O] was going to die. [J.C.] specifically said he will never forget the sounds and how terrible [O] looked in that moment, how distressed. How so much worse he looked than when he first met [O].
[J.C.] told you that his dad, the Defendant, just walked away like nothing happened. [J.C.] said he hated his dad for that. [J.C.] believed that assault occurred after [O] got back from Yakima, but before he died. What [J.C.] described is assault in the second degree by strangulation. Both of these incidents amount to assault in the second degree, as charged in count seven. And you can convict the Defendant of that charge based on either of those.
Again, the jury later convicted Christenson as charged.
On remand in 2024, the parties each submitted sentencing memoranda,
and following argument at the resentencing hearing in November, the court ruled,
All right. The [c]ourt did review the briefing. The facts here, obviously as the Court of Appeals pointed out, between Counts 1 and 3 were very different [sic]. That was also pointed out by the State during sentencing that it was all of the other evidence.
Count 7, however, was specifically charged and described as relating to two specific incidents, one with the bathtub and one with the manual strangulation. And the jury was accordingly instructed that they needed to be unanimous as to which act they found comprised Count 7.
The test under Blockburger to determine whether or not double jeopardy is applicable to these—or applies to these charges in Count 1 and Count 7 is if the crimes are the same in law, which has been conceded that they are not. And the [c]ourt moves on to the—whether they are the same in fact.
The [c]ourt is going to find that the act in Count 7, specifically the strangulation or suffocation, depending on which act the jury decided, and I don’t think it’s important for this analysis which act they did decide, that it is not necessary to find that act occurred for purposes of the homicide by abuse charge in Count 1.
So, with that, I do not find that Count 1 and Count 7 violate double jeopardy, and that count will remain and score.
(Emphasis added.)
14
C. Blockburger Analysis of Counts 1 and 7
The trial court’s reasoning, though not binding on this court, is persuasive.
As the parties conceded, the offenses of homicide by abuse and assault in the
second degree by strangulation or suffocation are not the same in law. We
therefore presume that double jeopardy does not apply to those offenses.
With that presumption in mind, we conclude that the manner in which the
State charged and proved these offenses at trial reflect that they are not the same
in fact. As reasoned by the trial court, the State’s theory of the case regarding the
relationship between Counts 1 and 7 is that the evidence in support of Count 7
constituted the incidents of Christenson’s choking and forced submersion of O and
the evidence in support of Count 1 was all of Christenson’s remaining abuse of O.
Therefore, the evidence underlying the State’s proof of Count 7 was plainly not
necessary to its proof of Count 1, and those offenses, as charged and proved,
were not the same in fact. 18
Christenson nevertheless relies on our prior holding that vacated his
conviction for Count 3, a separate assault in the second degree allegation as to O
that we held constituted a double jeopardy violation, as a basis on which we should
rule that the charged offense in Count 7 similarly deprived him of the right to be
free of double jeopardy. However, as analyzed infra, the two charges of assault in
18 Christenson, for the first time in his reply brief, relies on a statement by the prosecutor in
closing that, according to Christenson, supports that the State relied on the two incidents of strangulation or suffocation in proving its charge of homicide by abuse. We do not consider arguments raised for the first time on reply. Cowiche Canyon Conservancy v. Bosley, 118 Wn.2d 801, 809, 828 P.2d 549 (1992); see also RAP 10.3(c).
15
the second degree in Counts 3 and 7 were plainly not the same either as charged
or proven at trial.
The State’s second amended information and the court’s jury instructions
emphasized that the charge of assault in the second degree in Count 3 was based
on bodily harm designed to cause “such pain or agony as to be the equivalent of
that produced by torture,” and, as discussed, those same documents set forth that
the charge of assault in the second degree in Count 7 was based on strangulation
or suffocation. The State’s theory of the case was that these incidents were
meaningfully distinct from one another: in closing argument, the prosecutor
expressly argued to the jury that the underlying conduct for Count 3 was “separate
and distinct from the assault two that we just talked about in count seven” and that
Count 3 was based not on “the two specific acts in the second degree for count
seven” but, rather, was based on a “continuing course of conduct. The bodily harm
that was inflicted on them [sic] and caused such pain and agony to be the
equivalent of torture by design.” Given that, these offenses were not the same in
law or fact and Christenson’s reliance on this court’s decision in his favor in his
direct appeal after trial is unavailing. Therefore, he has failed to rebut the
presumption that the homicide by abuse and assault in the second degree by
strangulation or suffocation charges constituted the “same offense” for the purpose
of the relevant constitutional inquiry and his double jeopardy assertion fails.
II. Exceptional Sentence Imposed After Remand
Christenson next asserts that reversal and remand for resentencing is
required yet again because the reasons provided by the court on resentencing did
16
not justify the imposition of an exceptional sentence on his conviction for homicide
by abuse. We disagree.
We have recently described the relevant standard of review as follows:
We will reverse an exceptional sentence only upon determining “[e]ither that the reasons supplied by the sentencing court are not supported by the record which was before the judge or that those reasons do not justify a sentence outside the standard sentence range for that offense” or “that the sentence imposed was clearly excessive or clearly too lenient.” RCW 9.94A.585(4). Interpretation of the [Sentencing Reform Act], chapter 9.94A RCW, is a question of law that we review de novo. State v. Jones, 172 Wn.2d 236, 242, 257 P.3d 616 (2011).
State v. Jackson, 28 Wn. App. 2d 654, 661, 538 P.3d 284 (2023) (some alteration
in original), review denied, 2 Wn.3d 1027 (2024).
Notably, Christenson does not challenge his exceptional sentence on the
basis that the sentencing court’s reasons were unsupported by the record.
Therefore, the facts on which the court based its determination are undisputed on
appeal. 19 Christenson instead contends that the reasons provided did not, as a
matter of law, justify an exceptional sentence.
When considering whether the imposition of an exceptional sentence is
justified, the reasoning of the sentencing court in support thereof must satisfy both
parts of the two-part test set forth in State v. Grewe:
First, a trial court may not base an exceptional sentence on factors necessarily considered by the Legislature in establishing the standard sentence range. Second, the asserted aggravating factor must be sufficiently substantial and compelling to distinguish the crime in question from others in the same category.
117 Wn.2d 211, 215-16, 813 P.2d 1238 (1991).
19 Christenson also does not challenge the exceptional sentence on the basis that it was
clearly excessive.
17
On appeal, Christenson asserts that the sentencing court did not satisfy
either part of that test for three factors on which the court relied. His assertion fails.
A. Legislature’s Consideration of Deliberate Cruelty, Particularly Vulnerable Victim, and Abuse of Position of Trust for Homicide by Abuse
Christenson first contends that legislature intended for the aggravating
factors relied on by the sentencing court herein to be inherent in the offense of
homicide by abuse. He is incorrect.
Our decision in State v. Russell, 69 Wn. App. 237, 848 P.2d 743 (1993),
and our Supreme Court’s subsequent decision in State v. Berube, 150 Wn.2d 498,
79 P.3d 1144 (2003), are instructive. In Russell, the sentencing court imposed an
exceptional sentence after a jury convicted Russell of homicide by abuse in
reliance on, as pertinent here, the aggravating factors of deliberate cruelty, a
particularly vulnerable victim, and abuse of position of trust. 69 Wn. App. at 249-
50. On appeal to this court, Russell asserted that those factors did not justify his
exceptional sentence because the state legislature necessarily considered them
when it criminalized homicide by abuse. Id. at 251-54. We rejected those
assertions. Id. at 254. In so doing, we noted that the legislature set forth the
deliberate cruelty factor in the Sentencing Reform Act (SRA) “as an illustrative
factor justifying a departure from the standard range.” We explained,
Deliberate cruelty is gratuitous violence or other conduct, significantly more serious or egregious than typical of the crime, which inflicts physical, psychological or emotional pain as an end in itself. State v. Strauss, 54 Wn. App. 408, 418, 773 P.2d 898 (1989); State v. Delarosa-Flores, 59 Wn. App. 514, 518, 799 P.2d 736 (1990), review denied, 116 Wn.2d 1010 (1991).
18
Russell contends that any homicide by abuse must necessarily be deliberately cruel because the statute requires a pattern or practice of assault or torture and extreme indifference to human life. We note that the same argument can be made with reference to other criminal statutes, such as murder and intentional rape. However, even where a statute proscribes behavior that generally could be described as deliberately cruel, it remains possible for a defendant to engage in gratuitous violence more egregious than typical.
“Deliberate cruelty” does not inhere in homicide by abuse. It is possible to engage in conduct that satisfies the mental element of the crime, extreme indifference to human life, by more passive, less violent means than those used by Russell.
Id. at 253 (footnote omitted).
As to the aggravating factor of a particularly vulnerable victim, we stated,
The sentencing court may consider a defendant’s knowledge that [their] victim was particularly vulnerable or incapable of resistance because of extreme youth; such knowledge is identified as an aggravating factor in the Sentencing Reform Act. [Former] RCW 9.94A.390(2)(b) [(1990)]. However, Russell argues that the youth of the victim was already considered by the Legislature when it set the standard range for homicide by abuse. The homicide by abuse statute is specifically aimed at the homicide of children. RCW 9A.32.055. However, the victim’s age may be an aggravating factor, even when the statute violated applies only to children, if the victim’s extreme youth makes the victim more vulnerable than other victims of the same crime. State v. Fisher, 108 Wn.2d 419, 424, 739 P.2d 683 (1987); [State v.] Garibay, 67 Wn. App [773,] 778-79[, 841 P.2d 49 (1992)].
Id. at 251-52. Regarding the abuse of a position of trust factor, we stated that it
refers primarily to the trust relationship between the perpetrator and the victim which renders the victim particularly vulnerable to the crime, and the factor may be used against a parent. Grewe, 117 Wn.2d at 220. Russell’s parental role gave him unmonitored access to Derik. He abused that position by repeated assaults on the boy until he finally killed him.
Russell argue[d] that all conduct that violates the homicide by abuse statute involves the abuse of a position of trust; therefore, abuse of trust was necessarily considered in setting the standard sentence range. We d[id] not agree that the language of the statute requires abuse of a trust relationship. Admittedly, a person in a
19
position of trust could more easily gain access to a child, an elderly person, or a dependent person. However, this is not a necessary element of the crime. To hold otherwise would mean that a person who committed all the elements of the crime, but was not in a position of trust, could not be convicted of “homicide by abuse.” We d[id] not believe this interpretation would be consistent with the legislative intent as expressed in the statute. The sentencing court did not err in relying on this aggravating factor
Id. at 252.
Then nine years later, our Supreme Court issued its decision in State v.
Berube, another appeal from an exceptional sentence imposed on a conviction of
homicide by abuse and in reliance on the aggravating factors of deliberate cruelty,
a particularly vulnerable victim, and abuse of a position of trust. 150 Wn.2d at 512-
513. The court identified that “Berube and [his co-defendant] argue[d] that th[o]se
aggravating factors are inherent in the offense of homicide by abuse and may not
be used to justify an exceptional sentence.” Id. at 513 (emphasis added).
Significantly, in response to that argument, the court plainly stated, “We disagree.”
Id. Hence, our state’s highest court expressly rejected the notion that the foregoing
factors are inherent in the offense of homicide by abuse.
In so doing, the court repeatedly relied on our decision in Russell to
conclude that “[e]xtreme youth is a valid aggravating factor when considering the
vulnerability of a victim” and a “familial or same household relationship is clearly
not an element of the homicide by abuse crime.” Id. (citing Russell, 69 Wn. App.
at 251-52). In discussing deliberate cruelty, the court relied on Strauss, the same
20
underlying appellate decisional authority relied on in Russell in setting forth the
standard for deliberate cruelty. 20
Now on appeal, Christenson asserts that the aggravating factors of
deliberate cruelty, a particularly vulnerable victim, and abuse of a position of trust
are inherent in the offense of homicide by abuse and may not be used to justify an
exceptional sentence. 21 In so doing, he somewhat disputes this court’s decision
in Russell but, critically, does not cite to or otherwise discuss anywhere in his
appellate briefing our Supreme Court’s decision in Berube, despite its status as
binding precedent and the sentencing court’s express reliance on Berube in its oral
ruling at resentencing. Because he does not engage with controlling decisional
authority, present a lawful basis on which this intermediate appellate court could
depart from such authority, or provide us with analysis in support of establishing
that Berube is no longer good law, his challenge based on the first part of the
Grewe test fails.
B. Substantial and Compelling Reasons Supporting Aggravating Factors
Christenson next asserts that the sentencing court’s imposition of an
exceptional sentence based on the aggravating factors of deliberate cruelty, a
particularly vulnerable victim, or abuse of a position of trust was not supported by
substantial and compelling reasons. As to each factor, he is again incorrect.
20 Compare Berube, 150 Wn.2d at 514 (quoting State v. Talley, 83 Wn. App. 750, 923 P.2d
721 (1996) (quoting Strauss, 54 Wn. App. 418), aff’d, 134 Wn.2d 176, 949 P.2d 358 (1998)), with Russell, 69 Wn. App. at 253 (citing Strauss, 54 Wn. App. at 418).
21 The sentencing court here, in reliance on Russell and Berube, rejected Christenson’s
assertions that the foregoing factors were inherent in the homicide by abuse offense.
21
1. Deliberate Cruelty
Christenson avers that substantial and compelling reasons did not support
the court’s reliance on the deliberate cruelty aggravating factor. We disagree.
As explained above, deliberate cruelty, set forth at RCW 9.94A.535(3)(a), 22
encompasses “gratuitous violence or other conduct, significantly more serious or
egregious than typical of the crime.” Strauss, 54 Wn. App. at 418. In Russell, we
stated that the following circumstances were sufficient to support the sentencing
court’s imposition of an exceptional sentence based on a special verdict finding of
deliberate cruelty:
One who deliberately and severely beats, with brass knuckles, a 20- month-old child until that child’s liver ruptures and the child sustains unusual pain, and who further denies medical assistance to the agonized child, has gone beyond exhibiting extreme indifference to human life; he has engaged in gratuitous violence and deliberate cruelty. Nor does the statute’s bare requirement of a previous practice of assault necessarily involve the gratuitously violent head injuries inflicted on [the child victim] before he was 4 months old. Homicide of a child by abuse is indeed an abhorrent crime, but Russell’s actions exceeded the prohibited conduct and deserve greater punishment.
69 Wn. App. at 253-54. In Berube, our Supreme Court recognized the following
circumstances as sufficient for reliance on the deliberate cruelty factor:
There was testimony showing that [the 23-month-old child victim] was repeatedly beat with the belt. There is also evidence in the record that [the co-defendant] assaulted [the child victim] with a cable cord on at least one occasion because the belt was no longer effective. Testimony establishes that on the day of his death, [the child victim] was forced to run in circles around a couch because [the
22 RCW 9.94A.535(3) provides as follows:
Except for circumstances listed in subsection (2) of this section, the following circumstances are an exclusive list of factors that can support a sentence above the standard range.
(a) The defendant’s conduct during the commission of the current offense manifested deliberate cruelty to the victim.
22
co-defendant] had determined that [the child victim] was becoming lazy. [The co-defendant] made [the child victim] run faster by picking up a belt and running after [him]. When [the child victim] turned around to look at [the co-defendant], [the co-defendant] “smacked him . . . two or three times.” Further, as discussed above, [the child victim]’s abuse was exacerbated because Berube would often discipline [the child victim] for his behavior, but then would inform [the co-defendant] of [the child victim’s] behavior, which led [him] to discipline [the child victim] again.
Berube, 150 Wn.2d at 514 (some alterations in original) (citation omitted).
The resentencing court herein did not err when it relied on the deliberate
cruelty aggravating factor as found by the jury. The court determined as much on
the basis of the following:
[T]he facts here, which are, in this [c]ourt’s opinion, much more egregious than in Berube or Russell. That there was gratuitous violence. There was psychological abuse, including taking away toys, making [O] wear garbage sacks or diapers, being forced to sleep in a bathtub, forced exercise that would not amount to an assault, and other examples of psychological abuse that is not encompassed in torture or assault under the homicide by abuse.
We agree. The requirement of proof of physical abuse or psychological torture for
the purpose of proving homicide by abuse may be shown when a defendant
severely restricts a developmentally disabled victim’s diet, their freedom of
movement, and verbally degrades them. However, a determination of deliberate
cruelty plainly follows, where, as here, Christenson compelled O to eat chile
peppers to regulate his bowel movements, 23 locked him in a bathroom and forced
him to sleep in a bathtub, 24 and prevented him from interacting with, looking, or
seeking comfort from his primary caregiver. 25
23 Christenson, No. 82309-4-I, slip op. at 3. 24 Id. at 2. 25 Id. at 3.
23
Furthermore, repeatedly causing physical harm to a victim under the guise
of corporal punishment can amount to a pattern of physical abuse. However, it is
unquestionably a gratuitous pattern of abuse where, as here, the record reflects
that during the time in question, Christenson struck O’s testicles with O’s favorite
toy and bruised them to such a degree as to result in a hospital visit, 26 rubbed chile
powder into O’s eyes, 27 forced O to exercise or into ice baths for hours at a time, 28
and subjected O to electric shocks using a stun gun. 29 The record thus supports
the conclusion that Christenson’s conduct underlying his commission of homicide
by abuse of O was gratuitously violent and therefore distinct from others in the
same category. Christenson’s assertion on this point fails.
2. Particularly Vulnerable Victim
Christenson also avers that substantial and compelling reasons did not
support the court’s reliance on the particularly vulnerable victim aggravating factor.
Again, we disagree.
RCW 9.94A.535(3)(b) sets forth this aggravating factor as follows: “The
defendant knew or should have known that the victim of the current offense was
particularly vulnerable.” Interpreting that provision, we have recognized that
imposition of an exceptional sentence based on a particularly vulnerable victim
requires that the victim be more vulnerable to the crime at issue than other victims
and the defendant knew of this vulnerability. State v. Bedker, 74 Wn. App. 87, 94,
26 Id. 27 Id. 28 Id. 29 Id.
24
871 P.2d 673 (1994). In addition, the vulnerability of the victim must be a
substantial factor in accomplishing the crime in order for such a factor to warrant
an exceptional sentence. State v. Ross, 71 Wn. App. 556, 565, 861 P.2d 473, 883
P.2d 329 (1993).
The record reflects that the extent of O’s developmental disability caused
him to be more vulnerable to the crime of homicide by abuse than other
developmentally disabled victims, Christenson knew of this vulnerability, and it
played a substantial part in Christenson’s commission of that crime. As well-
reasoned by the judge on resentencing,
[W]hile I agree with the parties, the case law on the developmentally disabled person prong of homicide by abuse, there is not much case law, if any; however, the facts of this case do show that [O] was basically nonverbal. I think there was [sic] very few words that he could say, but basically nonverbal.
The [c]ourt does recognize that there are plenty of developmentally disabled persons who would be termed that under the homicide by abuse statute that do not have severe autism, as [O] did, that do not have—or that do have verbal skills.
As the State said, same with a child under 16 years of age, from 1 day old to 16 years, there is a very wide variety; same with children, or adults, who are developmentally disabled.
The undisputed evidence here was that [O] was severely autistic and mostly nonverbal. He would not be able to call for help or explain to any doctor, social worker, or teacher what was going on with him. He was reliant upon his mother. And as the evidence showed, she did not tell the doctors, she did not tell the school and other individuals what was happening with [O], either. And he was unable to do that and advocate for himself.
He, by, seems, all accounts, had the mental age of a toddler.
And while the State described that he would shield himself or flee, those are pretty basic instinctual acts that would — that any human would probably do, including a two-year-old child.
So the fact that [O] was not able to communicate, he did not have the cognitive ability to fight back or understand what was happening to him, or that he even could fight back. Even though he may have had the body of an adult, he was—had the mental age of a young child.
25
As the court recognized, the combination of O’s severe autism and lack of verbal
skills rendered him akin to a two-year-old child, which resulted in an inability to
report or otherwise seek assistance from the abuse that he was suffering, which
rendered him more susceptible to a pattern of abuse that resulted in his death.
Thus, Christenson’s challenge to the court’s reliance on that factor fails.
3. Abuse of Position of Trust
Christenson also contends that substantial and compelling reasons did not
support the court’s reliance on the abuse of a position of trust aggravating factor.
Again, we disagree.
This factor is set forth in RCW 9.94A.535(3)(n), which states, “The
defendant used [their] position of trust, confidence, or fiduciary responsibility to
facilitate the commission of the current offense.” We have stated,
“When analyzing abuse of trust, the focus is on the defendant.” State v. Bedker, 74 Wn. App. 87, 95, 871 P.2d 673 (1994). “The inquiry is whether the defendant was in a position of trust, and further whether this position of trust was used to facilitate the commission of the offense.” Id. A family relationship between the victim and the perpetrator will establish a position of trust. Id. at 95-96.
State v. Garnica, 105 Wn. App. 762, 772, 20 P.3d 1069 (2001). Additionally,
[t]he trust relationship may exist between the perpetrator and the child’s primary care giver who entrusts the child’s care to the perpetrator, or between the child victim, who has a tendency to trust, and the perpetrator, who preys upon this tendency.
Garibay, 67 Wn. App. at 779. Furthermore, “[a]n ‘abuse of trust’ may occur through
recklessness as well as through purposeful design, as where a person acts
26
inconsistently with a standard of care expected of those in a position of trust.” State
v. Chadderton, 119 Wn.2d 390, 398, 832 P.2d 481 (1992).
Christenson was in a position of trust that facilitated his commission of
homicide by abuse of O. As again well-reasoned by the sentencing court,
Russell and Berube are persuasive. Berube is a State Supreme Court case.
The familial or same household relationship is clearly not an element of a homicide by abuse crime. That is in Berube, which also cites to Russell.
Russell also indicates that a person in a position of trust could be more eas—could more easily gain access to a child or an elderly person or dependent person; however, this is not a necessary element of the crime.
Like Berube, this case involved [O]’s mother’s boyfriend; here, Mr. Christenson. He moved into their home. And the evidence is that he took control of the household, including both children. He was in the position of a parent figure—I use that term loosely—in the household, to which the mother passively acquiesced. He took the role of disciplinarian. And these facts support that Mr. Christenson was in a position of trust over [O].
As described by the court, Christenson moved into the home; he was not merely
a visitor. Christenson then took control of both children’s eating habits, chore
assignments, and discipline, which placed him in the assumed role of a parental
figure, a role to which O’s mother either acquiesced to Christenson or entrusted to
him. Regardless, in taking control of the household here which included O, a
severely developmentally disabled individual, Christenson obtained a position of
trust in the household and patently abused that trust such that it differentiated his
commission of homicide by abuse from others’ commission thereof. Thus,
Christenson’s assertion fails. 30 Accordingly, Christenson does not establish that
30 Christenson also relies, for the first time on appeal, on Division Two’s decision in State
v. Eller, 29 Wn. App. 2d 537, 541 P.3d 1001 (2024), and Division Three’s decision in State v. Saltz, 137 Wn. App. 576, 154 P.3d 282 (2007), in support of his assertion of a deprivation of his right to
27
the sentencing court erred when it imposed an exceptional sentence in reliance on
the foregoing aggravating factors.
III. Challenge to Constitutionality of SRA
Christenson next asserts, for the first time on appeal, that he was deprived
of the right to trial by jury because the SRA requires a judge, rather than a jury to
make “the factual finding” of whether substantial and compelling reasons justify an
exceptional sentence. His assertion is unpreserved, but more critically, it is
contradicted by controlling authority.
First, although he relies on Erlinger v. United States, 31 a recent United
States Supreme Court decision, his resentencing counsel did not provide that case
in his memorandum on resentencing or at the hearing, notwithstanding its
availability during the resentencing proceedings. Indeed, the Court issued its
decision therein in June 2024, three months before his legal counsel at
resentencing submitted his sentencing memorandum in September 2024 and five
months before the resentencing hearing in November 2024.
As a result, Christenson raises this alleged error for the first time on appeal.
In so doing, however, his briefing does not present the required manifest
constitutional error analysis to establish his entitlement to our consideration of this
trial by jury. His reliance is unavailing. Those cases involved the constitutionality of the imposition of an exceptional sentence pursuant to certain subdivisions of subsection (2) of RCW 9.94A.535, which, significantly, involved imposition of “an aggravated exceptional sentence without a finding of fact by a jury.” Eller, 29 Wn. App. 2d at 543-44; Saltz, 137 Wn. App. at 579-82. By contrast, the sentencing court here imposed sentence based on the aggravating factors set forth in the subdivisions of subsection (3) of that same provision, factors which, as discussed, were found by the jury here beyond a reasonable doubt. Compare RCW 9.94A.535(2), with RCW 9.94A.535(3). He does not present persuasive analysis or authority in support of his argument that such subdivisions are analogous to one another and his assertion thus fails.
31 602 U.S. 821 (2024).
28
assignment of error under RAP 2.5(a)(3). Therefore, we decline to consider his
challenge. 32
We nonetheless note, however, that since the Court published its decision
in Erlinger, all three divisions of this court have rejected attempts similar to
Christenson’s to either rely on the Supreme Court’s decisional authority, depart
from our own authority, or both. State v. Johnson, 29 Wn. App. 2d 401, 426, 540
P.3d 831, review denied, 2 Wn.3d 1035, cert. denied, 145 S. Ct. 771 (2024); State
v. Sage, 1 Wn. App. 2d 685, 708-09, 407 P.3d 359 (2017); State v. Fulkerson, No.
40600-8-III, slip op. at 6-7 (Wash. Ct. App. June 16, 2026) (unpublished),
https://www.courts.wa.gov/opinions/pdf/406008_unp.pdf; State v. Zimin, No.
59518-4-II, slip op. at 17-21 (Wash. Ct. App. June 2, 2026) (unpublished),
https://www.courts.wa.gov/opinions/pdf/D2%2059518-4II%20Unpublished%20Opinion.pdf;
State v. Flores-Gomez, No. 86109-3-I, slip op. at 21-22 (Wash. Ct. App. Oct. 13,
2025) (unpublished), https://www.courts.wa.gov/opinions/pdf/861093.pdf, review
denied, 5 Wn.3d 1043 (2026); State v. Pimentel, No. 60467-1-II, slip op. at 23-26
(Wash. Ct. App. June 24, 2025) (unpublished), https://www.courts.wa.gov/
opinions/pdf/60467-1.25.pdf, review denied, 6 Wn.3d 1012 (2026); State v.
Korsakas, No. 86843-8-I, slip op. at 10 (Wash. Ct. App. Feb. 18, 2025)
32 Furthermore, to the extent that Christenson seeks to rely on a three-sentence order by
the United States Supreme Court in Fields v. Colorado, 145 S. Ct. 1136 (2025), which vacated and remanded an unpublished Colorado State Court of Appeals decision, his briefing falls far short of the mark. He does not provide any analysis in support of the proposition that the Court intended its three-sentence order to carry precedential weight.
Christenson also does not provide analysis comparing the underlying facts and analysis of the Colorado appellate court decision or statutory framework in Fields, which appears to have regarded facts of prior convictions, to the matter before us, which regards the SRA, jury verdict findings, and conclusions of law based thereon. Christenson plainly does not present adequate analysis to demonstrate entitlement to the appellate relief that he seeks.
29
(unpublished), https://www.courts.wa.gov/opinions/pdf/868438.pdf, aff’d on other
grounds, ___ Wn.3d ___, 589 P.3d 768 (2026). 33
Christenson presents no persuasive argument or analysis on which to
depart from our decisional authority. Thus, for several reasons, his challenge to
the SRA fails. Accordingly, Christenson does not establish an entitlement to
appellate relief, and we affirm.
WE CONCUR:
33 We cite the foregoing unpublished decisional authority in support of establishing this
court’s prior and repeated rejection of the argument presented here by Christenson. See GR 14.1(c).