State v. Pryor

782 P.2d 1076, 56 Wash. App. 107, 1989 Wash. App. LEXIS 366, 50 Empl. Prac. Dec. (CCH) 39
CourtCourt of Appeals of Washington
DecidedNovember 30, 1989
Docket9433-2-III
StatusPublished
Cited by31 cases

This text of 782 P.2d 1076 (State v. Pryor) is published on Counsel Stack Legal Research, covering Court of Appeals of Washington primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Pryor, 782 P.2d 1076, 56 Wash. App. 107, 1989 Wash. App. LEXIS 366, 50 Empl. Prac. Dec. (CCH) 39 (Wash. Ct. App. 1989).

Opinions

Shields, J.

Dennis Dow Pryor pleaded guilty to two counts of indecent liberties with an 8-year-old female. RCW 9A.44.100(l)(b). He received an exceptional sentence for the maximum term of 10 years and appeals. We remand for resentencing.

The underlying facts are related in the presentence report:

According to the Moses Lake Police reports . . ., officers contacted Child Protective Services ... on 10-09-87, regarding a possible child sex abuse case, involving two victims, [AV], age four years and [LL], age eight years.
Officers learned that the suspect, Dennis Pryor, was living at the [V] residence in August-September, 1987, when the incidents occurred.
Officers interviewed [AV] and she indicated her friend, [LL], was staying with her and they were in the living room. She related the Pryor had tickled her on the "privates", side and on her butt. She pointed to the vagina and butt of an anatomical doll, when asked to show where she was touched. She state [d] he had touched her on the outside of her clothing.
This incident appears to have occurred in about August to mid-September, 1987, while Pryor was on the living room floor wrestling with [AV].
Officers then interviewed [LL]. She stated that while staying with the [V's], during August-September, 1987, she remembers Pryor coming into the bedroom. She indicated she was standing on the bed and Pryor was wearing a pair of jeans and a shirt. He pulled down his pants to where he was naked and rubbed his penis up against her buttock. She then demonstrated this incident by using two anatomical dolls, a male and female.
When asked if anything else happened, she stated Pryor came into her bedroom on about four (4) other occasions and [110]*110put his hand under her nightgown and inside her panties and rubbed her vagina. She again demonstrated this by using the anatomical doll. She related she said "No, don't", when he did it, but he continued anyway.
During [an] interview with Mrs. [KL], [LL's] mother, on 03-24-88, she advised [that] her daughter told her the reason she had not told anyone about the incident, was because Pryor had threatened to kill her if she told anyone about what happened.

Mr. Pryor was charged with five counts of indecent liberties with the 8-year-old. He was also originally charged with one count of indecent liberties with the 4-year-old. Pursuant to a plea bargain agreement, he pleaded guilty to two counts of indecent liberties with the 8-year-old and the remaining counts were dismissed.

The presentence report revealed Mr. Pryor had three previous convictions involving minor females—first degree rape of a 14-year-old of unsound mind in Oklahoma in 1971, sexual assault of a 12-year-old in Montana in 1978, and communication with a 10-year-old minor for immoral purposes1 in Washington in 1984. Both counsel and the trial court apparently considered Mr. Pryor's 1984 offense a misdemeanor and did not consider it when computing his criminal offender score. The trial court determined he had an offender score of 3, based on two prior felony convictions and the one additional current offense, making the standard range sentence for each present count 26 to 34 months. Correctly calculated, Mr. Pryor has an offender score of 4, making the standard range sentence for each present count 31 to 41 months. The prosecutor, pursuant to the plea bargain, recommended a 34-month concurrent [111]*111sentence on each count. The court, however, sentenced him to concurrent exceptional sentences of 120 months on each count. Subsequently, the court learned it may have misstated the time sequence and nature of the prior convictions in Mr. Pryor's criminal history and granted a motion by Mr. Pryor for a "real facts" hearing pursuant to RCW 9.94A.370(2).2 At that hearing, evidence of the convictions was admitted. It was determined that for his 1971 conviction of rape of the 14-year-old, Mr. Pryor was given a 15-year sentence of which he served less than 4 years and was released in 1975. For his 1978 conviction of sexual assault of the 12-year-old, he was given a 5-year sentence of which he served 3Vz years and was released in 1982. For his 1984 conviction of communication with a 10-year-old minor for immoral purposes, he was sentenced to 1 year, and served approximately 4 months. The trial court adhered to the original conclusion an exceptional sentence was appropriate on reasons of (1) progressively predatory behavior toward minor females, (2) abuse of a position of trust, (3) particular vulnerability of the victim, and (4) deliberate cruelty. This appeal followed.

Mr. Pryor contends the exceptional sentence was unjustified for the first reason because his prior convictions inhered in his offender score. State v. Hartley, 41 Wn. App. 669, 705 P.2d 821, review denied, 104 Wn.2d 1028 (1985). He also contends the other three reasons do not support an exceptional sentence; and, in any event, a sentence of 120 months is clearly excessive.

The 3-step inquiry necessary in a review of an exceptional sentence is: (1) are the reasons supplied by the sentencing judge supported by the record—a factual determination which this court must uphold absent a finding the reasons are clearly erroneous, State v. Nordby, 106 Wn.2d [112]*112514, 517-18, 723 P.2d 1117 (1986); (2) do these reasons justify a sentence outside the standard range for that offense—a matter of law for this court to determine independently, Nordby, at 518; and (3) was the sentence imposed clearly excessive? RCW 9.94A.210(4).

Predatory Behavior

The trial court's first reason for an exceptional sentence is "progressively predatory behavior by the defendant towards minor females." As outlined above, Mr. Pryor was convicted of first degree rape of a 14-year-old in 1971, sexual assault of a 12-year-old in 1978, and communication with a minor for immoral purposes with a 10-year-old in 1984. Mr. Pryor's current offense involves an 8-year-old. The trial court made reference to the fact Mr. Pryor was also originally charged with one count of indecent liberties with a 4-year-old. However, a defendant is not accountable for crimes the prosecutor could not or chose not to prove. State v. Harp, 43 Wn. App. 340, 342-43, 717 P.2d 282 (1986). Therefore, the charges for indecent liberties with the 4-year-old, which were dismissed, cannot be used to support the reason "predatory behavior".

The State relies on State v. Wood, 42 Wn. App. 78, 709 P.2d 1209 (1985), review denied, 105 Wn.2d 1010 (1986), to support the finding of "predatory behavior" as justification for the imposition of an exceptional sentence. The prece-dential value of Wood

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Bluebook (online)
782 P.2d 1076, 56 Wash. App. 107, 1989 Wash. App. LEXIS 366, 50 Empl. Prac. Dec. (CCH) 39, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-pryor-washctapp-1989.