State v. Sweat

Fl LE
t'l <:!.U~KS OFFICE
8UF'RE:.~···...... ::, GTATE OF WASHWCnal

c. .. .:_APR 0 3 2

This opinion was filed for record
m~~
Ronald R. Carperrie!·
Supreme Court Clark

IN THE SUPREME COURT OF THE STATE OF WASHINGTON

THE STATE OF WASHINGTON, ) No. 88663-6
)
Respondent, )
)
v. ) En Bane
)
RICHARD DEDE SWEAT, )
) Filed APR 0 3 2014
Petitioner. )
_______________________)
GONZALEZ, J.-Under RCW 9.94A.535(3)(h)(i), a court may impose an

exceptional sentence for someone who has exhibited an ongoing pattern of domestic

violence. Richard Sweat received such a sentence as part of his latest domestic

violence conviction. He believes the trial court erred and argues that the catchall

definition of"victim" in RCW 9.94A.030 must be used in interpreting RCW

9.94A.535(3)(h)(i), precluding the application of the aggravating factor when the

pattern of abuse was not perpetrated against the victim or victims of the currently

charged offense. We disagree and affirm.
State v. Sweat (Richard Dede), No. 88663-6

FACTS

Early on September 26, 2010, Sweat and Kellie Kenworthy, his girlfriend at the

time, began to argue. During this argument, Sweat told Kenworthy that he would

'"smack her in the face if she didn't shut up."' Clerk's Papers (CP) at 138. Shortly

after, he followed through on this threat. Sweat hit Kenworthy in the face hard

enough to cause significant swelling and a fracture of her left orbit.

Later that morning, Sweat and Kenworthy walked to a hospital. In the presence

of Sweat, Kenworthy told a nurse she sustained the injury when she fell out of bed

and hit her face on a dresser. Later, when Sweat was out of the room, the nurse asked

Kenworthy whether she felt safe being with Sweat. Kenworthy broke down and said

that she was not safe and the injury was a result of Sweat's abuse.

Ultimately, the King County Prosecutor's Office (KCPO) charged Sweat with

assault in the second degree under RCW 9A.36.021(1)(a) and classified it as domestic

violence under RCW 10.99.020(5). Given Sweat's history of domestic violence

convictions, the KCPO also charged Sweat with a domestic violence aggravator under

RCW 9.94A.535(3)(h)(i). Sweat opted to represent himself and waived trial by jury

and his right not to testify.

At trial, Sweat argued that Kenworthy caused her own injury when she fell out

of bed. The judge did not find Sweat's testimony credible and found Sweat guilty of

second degree assault-domestic violence. She also found that there was an "ongoing

pattern of psychological, physical or sexual abuse of multiple victims" under RCW

2
State v. Sweat (Richard Dede), No. 88663-6

9.94A.535(3)(h)(i) justifying a deviation from a standard range sentence. CP at 144.

Specifically, she found that Sweat's prior domestic violence and domestic violence-

related convictions, 1 which he committed against past girlfriends and other women,

were sufficient to establish the aggravating factor. As a result, Sweat was sentenced

to 84 months' confinement, well above the standard range of 43-57 months. Sweat

appealed this exceptional sentence. The Court of Appeals affirmed, finding that the

aggravating factor statute "contemplates abuse that was not the direct result of the

charged crime." State v. Sweat, 174 Wn. App. 126, 130, 297 P.3d 73 (2013). We

granted review, State v. Sweat, 177 Wn.2d 1023, 309 P.3d 504 (2013), and now

affirm.

ANALYSIS

A. Standard of review

Questions of statutory interpretation are reviewed de novo. State v. Alvarado,

164 Wn.2d 556, 561, 192 P.3d 345 (2008) (citing Tingey v. Haisch, 159 Wn.2d 652,

657, 152 P.3d 1020 (2007)). The purpose of statutory interpretation is to determine

and carry out the intent of the legislature. I d. at 561-62 (citing City of Spokane v.

1
This included Sweat's 1996 conviction for assault with intent to commit rape and indecent
liberties against J.W.; his 1998 conviction for unlawful imprisonment and assault in the third
degree against J.H.; his 2005 conviction for unlawful imprisonment-domestic violence and
assault in the fourth degree-domestic violence against A.M.; his 2006 conviction for felony
riot-domestic violence and assault in the fourth degree-domestic violence against N.N.; and
his 2006 conviction of felony riot-domestic violence against C.M. "Felony riot" has been
redesignated "Criminal Mischief' as of January 1, 2014. LAWS OF 2013, ch. 20 (currently
codified at RCW 9A.84.010 and RCW 13.40.0357).
3
State v. Sweat (Richard Dede), No. 88663-6

Spokane County, 158 Wn.2d 661,673, 146 P.3d 893 (2006)). Ifthe words of a statute

are clear, we end our inquiry. State v. Gonzalez, 168 Wn.2d 256,263,226 P.3d 131

(20 10). "In discerning the plain meaning of a provision, we consider the entire statute

in which the provision is found, as well as related statutes or other provisions in the

same act that disclose legislative intent." Alvarado, 164 Wn.2d at 562 (citing City of

Spokane, 158 Wn.2d at 673; Skamania County v. Columbia River Gorge Comm 'n,

144 Wn.2d 30, 45, 26 P.3d 241 (2001)). However, "[i]f a statute is susceptible to

more than one reasonable interpretation, it is ambiguous and, absent legislative intent

to the contrary, the rule of lenity requires us to interpret the statute in favor of the

defendant." State v. Coucil, 170 Wn.2d 704, 706-07,245 P.3d 222 (2010) (citing

State v. Jacobs, 154 Wn.2d 596, 600-01, 115 P.3d 281 (2005)).

B. Plain language ofRCW 9.94A.535(3)(h)(i)

Sweat does not argue that RCW 9.94A.535(3)(h)(i) is ambiguous. Instead, he

contends that the definition of "victim" in the general definition section of the

criminal code, RCW 9.94A.030(53)-·i.e., "any person who has sustained emotional,

psychological, physical, or financial injury to person or property as a direct result of

the crime charged' (emphasis added)-must control our interpretation of the phrase

"a victim or multiple victims" in RCW 9.94A.535(3)(h)(i). Pet'r's Suppl. Br. at 2.

According to Sweat, this makes the aggravating factor's applicability strictly limited

to incidents involving the same victim or victims as the charged crime, which, if true,

would entitle him to resentencing. !d.

4
State v. Sweat (Richard Dede), No. 88663-6

Sweat is correct that RCW 9.94A.535(3)(h)(i) is not ambiguous. However, his

reading of the general definition found in RCW 9.94A.030(53) into RCW

9.94A.535(3)(h)(i) fails to take into account the definitional statute's statement that its

definitions apply "[u]nless the context clearly requires otherwise." RCW 9.94A.030.

And the context ofRCW 9.94A.535(3)(h)(i) clearly requires us to use a broader

definition of"victim" than the one provided in RCW 9.94A.030(53).

We have previously observed that the definitions in RCW 9.94A.030 do not

apply to all criminal statutes in all criminal cases. In State v. Morley, we found that

the "'[u]nless the context clearly requires otherwise"' language in the definitions

section justified "[o]ur refusal to apply the definition of 'conviction' [from RCW

9.94A.030(9)] to out-of-state cases." 134 Wn.2d 588, 598, 952 P.2d 167 (1998)

(quoting RCW 9.94A.030). RCW 9.94A.030(9) defined "conviction" as "an

adjudication of guilt pursuant to Title 10 or 13 RCW," which would have eliminated

out-of-state convictions from offenders' criminal histories. We reasoned that because

the legislature referenced out-of-state convictions elsewhere in the SRA and the

definition of"conviction" contained in RCW 9.94A.030(9) would have rendered these

references meaningless, our refusal to apply that definition of "conviction" did "not

ignore the Legislature's statutory directives." !d. at 597-98. Here too, we find that

the context surrounding RCW 9.94A.535(3)(h) demands deviation from the general

definition section.

5
State v. Sweat (Richard Dede), No. 88663-6

The enhancement section at issue indicates the legislature intended that courts

can consider any prior domestic violence incidents in establishing a pattern of

conduct. The relevant portion reads:

(3) Aggravating Circumstances- Considered by a Jury- Imposed by the
Court

... [T]he following circumstances are an exclusive list of factors that
can support a sentence above the standard range ....

(h) The current offense involved domestic violence ... and one or more
of the following was present:

(i) The offense was part of an ongoing pattern of psychological,
physical, or sexual abuse of a victim or multiple victims manifested by multiple
incidents over a prolonged period of time;

(ii) The offense occurred within sight or sound of the victim's or the
offender's minor children under the age of eighteen years; or

(iii) The offender's conduct during the commission of the current offense
manifested deliberate cruelty or intimidation of the victim.

RCW 9.94A.535(3)(h) (emphasis added). Indeed, the legislature's use of the

indefinite article "a" and the broad term "multiple" in subsection (i) and its use of the

definite article "the" in subsections (ii) and (iii) is telling. The legislature uses "the"

in this scheme to refer back to the victim of the currently charged offense. In contrast,

the use of "a" and "multiple" indicates that the victim or victims do not have to be

6
State v. Sweat (Richard Dede), No. 88663~6

defined by the currently charged offense. 2 Reading the statute otherwise would render

statutory terms-albeit small ones-meaningless.

Had the legislature intended to limit the ongoing pattern to incidents involving

only the victim of the current charged offense, it would have substituted "the" for "a"

and not included the word "multiple" in front ofvictims. 3 Based on the use of"the

victim" and omission of "multiple victims" in subsequent subparts, it is clear that

legislators understood the subtle distinction between articles and the breadth of the

word "multiple" and chose to employ a broader definition of "victim" in RCW

9.94A.535(3)(h)(i) than that in RCW 9.94A.030(53).

Finally, the term "victim" appears 28 times in RCW 9.94A.535. In this

scheme, to reference the victim of the currently charged offense, the legislature makes

an explicit reference to "the offense" or "currently charged offense," uses the definite

article before "victim," or does both. See, e.g., RCW 9.94A.535(3)(a) ("The

2
In State v. Ose, we stated noted that

Webster's provides the following definition for "a":

"1-used as a function word before most singular nouns other than proper and
mass nouns when the individual in question is undetermined, unidentified, or
unspecified ... ; used with a plural noun only ifjew, veryfew, good many, or great
many is interposed."

156 Wn.2d 140, 146, 124 P.3d 635 (2005) (alteration in original) (quoting WEBSTER's THIRD
NEW INTERNATIONAL DICTIONARY, 1 (2002)).
3
The subpart would then be limited in its applicability to the victim or victims of the current
charged offense: "The offense was part of an ongoing pattern of psychological, physical, or
sexual abuse of [the] victim or ... victims manifested by multiple incidents over a prolonged
period oftime."
7
State v. Sweat (Richard Dede), No. 88663-6

defendant's conduct during the commission of the current offense manifested

deliberate cruelty to the victim."); see also RCW 9.94A.535(1 )(a), (b), (f), (h), (3)(b ),

(c), (d)(i), (g), (h) (ii)-(iii), (i), U), (!), (p), (r), (u)-(w), (y), (z)(l)(A)-(C), (cc). The

deviation from this scheme in RCW 9.94A.535(3)(h)(i), where the legislature

intended harsher punishments if"[t]he offense was part of an ongoing pattern of ...

abuse of a victim or multiple victims," must be given its own, broader interpretation.

Other than in RCW 9.94A.535(3)(h)(i), the legislature uses the term "a victim"

only once in that statute. See RCW 9.94A.535(3)(w). 4 Likewise, there is only one

other instance where the legislature uses the term "multiple victims." RCW

9.94A.535(3)(d)(i). 5 In both of these instances, however, the legislature ties "victim"

to "the current offense" or "the offense" by explicit reference. RCW

9.94A.535(3)(d)(i), .535(3)(w). The legislature did not provide any such clarification

in RCW 9.94A.535(3)(h)(i).

Perhaps looking to RCW 9.94A.535(3)(g), which comes immediately before

the subsection in question and bears substantial similarity to RCW 9.94A.535(3)(h)(i),

provides the clearest evidence of the legislature's intent. This aggravating

circumstance applies when "[t]he offense was part of an ongoing pattern of sexual

abuse of the same victim ... manifested by multiple incidents over a prolonged period

4
"The defendant committed the offense against a victim who was acting as a good samaritan."
RCW 9.94A.535(3)(w).
5 "The current offense involved multiple victims or multiple incidents per victim." RCW

9.94A.535(3)( d)(i).
8
State v. Sweat (Richard Dede), No. 88663-6

of time." RCW 9.94A.535(3)(g) (emphasis added). The difference between this

verbiage and "[t]he offense was part of an ongoing pattern of ... abuse of a victim or

multiple victims manifested by multiple incidents over a prolonged period of time,"

RCW 9.94A.535(3)(h)(i) (emphasis added), conclusively proves that the legislature

did not intend the domestic violence aggravator to apply solely to repeated abuse of

the same victim or victims.

CONCLUSION

RCW 9.94A.535(3)(h)(i) allows a judge to impose an exceptional sentence

based on a prolonged, ongoing pattern of domestic abuse. We find that this abuse

need not involve the same victim or victims as the charged offense. Accordingly, we

affirm.

9
State v. Sweat (Richard Dede), No. 88663-6

WE CONCUR:

10