State v. Armstrong

723 P.2d 1111, 106 Wash. 2d 547, 1986 Wash. LEXIS 1239

• Court: Washington Supreme Court
• Decided: August 14, 1986
• Docket: 51771-1
• Status: Published

Opinions

Durham, J.

Randy Armstrong challenges his 5-year sentence for second degree assault. Under the Sentencing Reform Act of 1981, the presumptive sentence range for this crime is 12 to 14 months. Armstrong contends that the trial court did not supply reasons that justified imposition of a sentence outside the presumptive range, and that the sentence given is clearly excessive. We affirm the sentence of the trial court.

Armstrong had been looking after a 10-month-old baby. When the baby began to cry and would not stop, Armstrong lost control. He threw boiling coffee on the infant. The baby continued to cry and Armstrong responded by plunging the baby's foot in the hot coffee. Armstrong then drove the baby to the hospital where he was treated for first and second degree burns on his face and feet. Armstrong later pleaded guilty to a charge of second degree assault.

The presumptive sentence range for this crime is determined by combining the seriousness level of second degree assault with Armstrong's criminal history. RCW 9.94A.320. Armstrong has a criminal history score of "2" for two prior second degree burglary convictions. RCW 9.94A.330, former 9.94A.360(5). Thus, his presumptive sentence range is 12 to 14 months. The statutory maximum sentence for second degree assault is 10 years. RCW 9A.36.020(2), 9A.20.021-(l)(b). Although the prosecutor asked for a sentence within the presumptive range, the trial judge sentenced Armstrong to 5 years.

A sentencing judge may impose a term outside the presumptive range if he provides "substantial and compelling reasons", set forth in written findings of fact and conclusions of law. RCW 9.94A.120(2), (3). The trial court here listed four reasons to justify Armstrong's exceptional sentence: (1) the victim of the assault was a totally defenseless 10-month-old child; (2) the child was injured twice, once when Armstrong threw boiling coffee on him, and a second time when Armstrong plunged the child's foot in the coffee; (3) the injuries were very serious first and second degree burns to the child's body; and (4) the incident could have been avoided had Armstrong simply walked away from the crying child.

RCW 9.94A.210(4) provides the applicable standard of review:

To reverse a sentence which is outside the sentence range, the reviewing court must find: (a) Either that the reasons supplied by the sentencing judge are not supported by the record which was before the judge or that those reasons do not justify a sentence outside the standard range for that offense . . .

Armstrong agrees that the reasons given by the trial judge are supported by the record. Our only task is to determine if those reasons justify a sentence outside the presumptive sentence range.

We hold that the first two reasons provided by the trial court justify imposing an exceptional sentence. The first reason given, that the victim was a totally defenseless 10-month-old child, is specifically listed as an "aggravating circumstance" under former RCW 9.94A-.390(2):

The defendant knew or should have known that the victim of the offense was particularly vulnerable or incapable of resistance due to extreme youth, advanced age, disability, or ill health.

(Italics ours.) The second reason given, that Armstrong inflicted multiple injuries when he both threw boiling coffee on the child and later plunged the child's foot in the coffee, is not among the aggravating circumstances listed in RCW 9.94A.390. That list, however, is illustrative rather than exclusive. See State v. Nordby, 106 Wn.2d 514, 516, 723 P.2d 1117 (1986). We note that former RCW 9.94A-.390(3)(a) does list "multiple . . . incidents per victim" as an aggravating circumstance in the context of "major economic offenses". Likewise, the infliction of multiple injuries in the course of a second degree assault is a factor upon which a court may rely to justify an exceptional sentence.

Although the above two reasons alone are sufficient to impose a sentence outside the presumptive range, we note that the third and fourth reasons provided by the trial court are insufficient. The fact that Armstrong inflicted serious first and second degree burns upon the baby merely brings Armstrong's crime within the definition of second degree assault. RCW 9A.36.020 provides in pertinent part:

(1) Every person who, under circumstances not amounting to assault in the first degree shall be guilty of assault in the second degree when he:

(b) Shall knowingly inflict grievous bodily harm upon another with or without a weapon; . . .

(Italics ours.) In State v. Salinas, 87 Wn.2d 112, 121, 549 P.2d 712 (1976), the court, in defining "grievous bodily harm", stated, "By 'grievous' is meant atrocious, aggravating, harmful, painful, hard to bear, serious in nature." This definition encompasses first and second degree burns. Hence, the nature of the injuries inflicted were already accounted for in determining the presumptive sentence range for second degree assault; they cannot be counted a second time to justify an exceptional sentence. See also Nordby, at 518; State v. Baker, 40 Wn. App. 845, 700 P.2d 1198 (1985). Finally, the fourth reason given by the trial court, that Armstrong could have avoided the incident by simply walking away, we dismiss as inadequate because this holds true for any crime.

Armstrong contends that the aggravating circumstances listed by the trial court do not justify an exceptional sentence because the trial court failed to consider them in conjunction with the following alleged mitigating circumstances: (1) Armstrong had no prior crimes of violence, (2) Armstrong took the child to the hospital after the burns, (3) Armstrong did not commit a premeditated assault, and (4) Armstrong confessed to the police. The first, second, and third factors listed here are not valid mitigating circumstances. The first factor deals with Armstrong's criminal history and hence has already been accounted for in determining the presumptive sentencing range. State v. Hartley, 41 Wn. App. 669, 705 P.2d 821 (1985). The second and third factors simply show the lack of an aggravating circumstance, since if Armstrong had committed a premeditated second degree assault on a 10-month-old baby, or had left the child to suffer, he would have "manifested deliberate cruelty to the victim." Former RCW 9.94A.390(1), Aggravating Circumstances. The lack of an aggravating circumstance does not create a mitigating circumstance. Only the fourth factor arguably qualifies as a mitigating circumstance but in any event, it clearly is outweighed by the fact that Armstrong committed second degree assault by inflicting multiple injuries on a defenseless 10-month-old child.

Armstrong finally contends that even if an exceptional sentence is justified in this case, his 5-year prison term is "clearly excessive". RCW 9.94A.210(4)(b). The standard of review which we use to evaluate this claim is the abuse of discretion. Thus, we will reverse the sentence as "clearly excessive" only if the trial court's action was one that no reasonable person would have taken. State v. Oxborrow, 106 Wn.2d 525, 531, 723 P.2d 1123 (1986). The trial court here considered that the crime committed was not a routine second degree assault but rather a flagrant act of child abuse requiring severe punishment.¹ We cannot say that the trial court abused its discretion in imposing a 5-year sentence.

The sentence of the trial court is affirmed.

Dolliver, C.J., and Brachtenbach, Andersen, and Callow, JJ., concur.

1 The dissent argues that Armstrong's sentence is “clearly excessive" because it is not the "worst possible" second degree assault. (See dissent, at 555.) However, the trial court did not sentence Armstrong to 10 years, the statutory maximum supposedly reserved for the worst possible cases. Instead, the trial court sentenced Armstrong to 5 years — one-half the statutory maximum.