Filed
Washington State
Court of Appeals
Division Two
June 18, 2019
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
STATE OF WASHINGTON, No. 51431-1-II
Respondent,
v.
TIMOTHY LLOYD MENZIES, JR., UNPUBLISHED OPINION
Appellant.
SUTTON, J. — Timothy Lloyd Menzies, Jr., appeals from his exceptional sentences
following his guilty plea convictions to two counts of first degree rape of a child (domestic
violence) stemming from his prolonged and repeated sexual abuse of his biological daughter KE
and his stepdaughter KM and from the court’s imposition of mandatory legal financial obligations
(LFOs). The trial court imposed exceptional minimum sentences on each conviction based on
three aggravating factors: abuse of a position of trust, ongoing pattern of sexual abuse as
manifested by multiple incidents over a prolonged period of time (multiple incidents), and multiple
victims.
We hold that (1) the trial court’s reliance on the multiple incidents aggravating factor was
not error, (2) because the State charged Menzies with crimes against each victim, the multiple
victim aggravating factor was improper, and (3) reversal of the exceptional sentences and remand
for resentencing is appropriate because the record is not sufficiently clear to establish that the trial
No. 51431-1-II
court would have imposed the same exceptional sentences without the multiple victim aggravating
factor.1 In addition, on remand the trial court should address the LFOs under the current law.
FACTS
I. ORIGINAL CHARGES
In June 2016, KM’s mother contacted law enforcement and reported that her six-year-old
daughter KM had disclosed that Menzies, KM’s father, had sexually abused her. Based on KM’s
allegations, the State originally charged Menzies with two counts of first degree rape of a child
and two counts of first degree child molestation. The declaration for determination of probable
cause supporting these charges stated that during a forensic interview, KM had revealed that
Menzies had forced her to engage in oral sex and other sexual contact “multiple times” for more
than a year. Clerk’s Papers (CP) at 1.
After Menzies’s arrest, his 12 year old stepdaughter KE disclosed that Menzies had
engaged in oral, vaginal, and anal sexual intercourse with her. KE stated that the sexual abuse
started when she was about five years old and the incidents occurred several times a week,
sometimes more than once in a single night, until Menzies’s arrest. Based on these new
allegations, the State amended the information to include four more charges: three counts of first
degree rape of a child and one count of second degree rape of a child.
1
Menzies originally argued that the trial court also erred when it failed to enter written findings
of fact and conclusions of law supporting the exceptional sentence. The trial court has entered
the written findings, so this argument is moot.
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No. 51431-1-II
II. GUILTY PLEAS AND STIPULATION
Menzies pleaded guilty to two counts of first degree rape, one for each victim, as charged
in the second amended information. In his statement of defendant on plea of guilty, Menzies stated
that he had committed the crimes and admitted facts related to three aggravating factors: abuse of
trust, multiple offenses per victim, and multiple victims. .
Menzies also entered a waiver of his right to a jury trial on the aggravating factors. In this
waiver, Menzies agreed to allow the trial court to rely on the statement of probable cause, the
State’s sentencing memorandum, the recitation of the facts by the State at the guilty plea hearing,
the victim impact statements, and the victims’ statements in open court to establish the aggravating
circumstances and to determine “whether the facts provide substantial and compelling reasons” to
impose exceptional sentences. CP at 30.
The trial court permitted the State to file the second amended information, which charged
Menzies with two counts of first degree rape of a child (domestic violence), one for each child.
The information alleged that the offense against KM occurred over a two-year, three-month period
and the offense against KE occurred over a six-year period. Following a colloquy, the trial court
found a factual basis for the pleas and accepted Menzies’s guilty pleas. The case then proceeded
to sentencing.
III. SENTENCING
At sentencing, Menzies argued that the trial court should not consider the abuse of trust or
multiple victim aggravating factors because they were already reflected in the charges. He did not
challenge the multiple incidents aggravating factor.
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No. 51431-1-II
The trial court orally addressed all three of the aggravating factors:
This is a defendant who was in the position of trust and authority as a parent
or stepparent to the two victims.
The pattern of abuse was excessive, as if any abuse wouldn’t be excessive.
But even in that context, this pattern of abuse was incredibly excessive, daily
patterns, oftentimes more than once a day, lasting for years. Done with threats of
violence and terror and even the threat of death.
Now that the defendant has been caught he recognizes his shortcomings.
Frankly, it’s impossible for this Court to believe that the very first incident, the very
first moment, the very first opportunity, the very first inclination he wouldn’t have
recognized the damage he was about to do.
If I had the power I certainly would be removing the pain from these
children, the ugliness in their lives, which are going to last for a heck of a lot more
than the sentence I’m going to impose in this case. It will last the rest of their lives;
and by the way, probably through your grandchildren’s lives and possibly through
their grandchildren as well.
This pattern goes on and on and on. It does not stop. Hopefully, they’ll get
the help they need. The damage is really unmeasurable. There’s no word for it.
An exceptional sentence is really called out for in this case. The Legislature
set some parameters for us to take a look at. They mean doggone well that we
follow those parameters unless there is exceptions.
There is exceptions here. This was abuse of trust, multiple victims. Yes,
the two victims are multiple victims. There are two crimes. They’re also multiple,
because every doggone day they were a victim again. Multiple victims, multiple
times; and the power of authority and trust, coupled with threats of violence and
death.
240 months confinement counts I and II[.2]
RP at 45-46 (emphasis added). The trial court did not, however, expressly state that it would have
imposed the same sentences if one or more of the aggravating factors were not present.
2
The standard range minimum sentence based on Menzies’s offender score of zero points was
120 to 160 months.
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No. 51431-1-II
The trial court later entered written findings of fact and conclusions of law addressing the
exceptional sentence. The trial court found,
4. The defendant is the stepfather of K.E. and the biological father of K.M. The
defendant occupied a position of trust with respect to both K.E. and K.M.
5. The defendant engaged in multiple acts of sexual intercourse with both K.M.
and K.E. The sexual abuse of K.M. and K.E. was excessive, lasted for years,
occurred on a daily or more than once daily basis and included threats of violence.
6. There are multiple victims in this case.
CP at 102. The trial court also incorporated its oral ruling by reference.
Based on these findings, the trial court concluded that the facts supported each of the three
aggravating factors and that each of these factors were substantial and compelling reasons to
impose an exceptional sentence. The trial court imposed a sentence of 240 months to life on each
count.
The trial court also addressed LFOs. The trial court declined to impose any discretionary
LFOs, but it imposed mandatory LFOs including a $200 criminal filing fee. The trial court also
ordered that the LFOs would bear interest from the date of the judgment and sentence.
Menzies appealed his exceptional sentences, the $200 criminal filing fee, and the LFO
interest provision.
ANALYSIS
I. EXCEPTIONAL SENTENCES
Menzies argues that (1) the multiple incidents aggravating factor was improper because the
unit of prosecution for first degree rape of a child is each act of sexual intercourse or penetration
and he pleaded guilty to only one charge per victim, (2) the multiple victims aggravating factor
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No. 51431-1-II
was improper because there were separate charges for each victim, and (3) these errors require
resentencing because it is not clear that the trial court would have imposed the same sentences
without these aggravating factors.
A. LEGAL PRINCIPLES
To reverse an exceptional sentence, we must find, “(1) under the ‘clearly erroneous’
standard, the reasons for departure from the presumptive range are not supported by the record;
[or] (2) as a matter of law, the stated reasons do not justify the exceptional sentence.”3 State v.
Hutsell, 120 Wn.2d 913, 916, 845 P.2d 1325 (1993). We may, however, affirm an exceptional
sentence when it is clear from the record that the trial court would have imposed the same sentence
based on any remaining aggravating factors that are upheld. State v. Jackson, 150 Wn.2d 251,
276, 76 P.3d 217 (2003); State v. Gaines, 122 Wn.2d 502, 512, 859 P.2d 36 (1993).
B. MULTIPLE INCIDENTS
Menzies argues that the trial court’s reliance on the multiple incidents aggravating factor
was improper because the unit of prosecution is each act of sexual intercourse or penetration and
he pleaded guilty to only one charge per victim. We disagree that the trial court could not consider
multiple incidents in imposing the exceptional sentence.
RCW 9.94A.530(3) gives the trial court the authority to consider facts related to additional
crimes in this circumstance. RCW 9.94A.530(3) provides, in part: “Facts that establish the
elements of a more serious crime or additional crimes may not be used to go outside the standard
3
The third ground upon which an appellant can challenge an exceptional sentence is if the sentence
is clearly excessive. State v. Hutsell, 120 Wn.2d 913, 916, 845 P.2d 1325 (1993). Menzies does
not argue that the sentence was clearly excessive.
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No. 51431-1-II
sentence range except . . . when specifically provided for in RCW 9.94A.535(3). . . (g).” (Emphasis
added.) The multiple incidents aggravating factor is codified under RCW 9.94A.535(3)(g). Thus,
RCW 9.94A.530(3) expressly allowed the trial court to consider “[f]acts that establish the elements
of a more serious crime or additional crimes” in imposing the exceptional sentence based on the
multiple incidents aggravating factor.
Menzies relies on State v. Vaughn, 83 Wn. App. 669, 677, 924 P.2d 27 (1996), State v.
Armstrong, 106 Wn.2d 547, 550, 723 P.2d 1111 (1986), and State v. Dunaway, 109 Wn.2d 207,
219, 743 P.2d 1237, as amended by 749 P.2d 160 (1988), for the premise that the multiple incidents
must take place “during the course of the incident underlying the charged crime.” Opening Br. of
Appellant at 11. Although each of these cases involved a single charge based on a series of
incidents that occurred over a shorter period of time than is the case here, none of these cases
require that the multiple incidents that are the basis for the aggravating factor must occur during a
single act or a specified period of time.4
Because RCW 9.94A.530(3) expressly allows the trial court to consider additional crimes
when evaluating the multiple incidents aggravating factor, Menzies fails to show that the trial
court’s reliance on the multiple incidents aggravating factor was clearly erroneous or that this
aggravating factor was improper as a matter of law.
4
Armstrong and Dunaway also address a nonstatutory aggravating factor, not the multiple
incidents aggravating factor at issue here. Armstrong, 106 Wn.2d at 550; Dunaway, 109 Wn.2d
at 219.
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No. 51431-1-II
C. MULTIPLE VICTIMS
Menzies further argues that the multiple victims aggravating factor was improper as a
matter of law because the State filed charges related to each of the victims. The State concedes
that the trial court’s reliance on this aggravating factor was improper.
The multiple victim aggravator is not available when, as here, the State had filed charges
for each victim. State v. Bourne, 90 Wn. App. 963, 976, 954 P.2d 366 (1998) (citing State v. Flake,
76 Wn. App. 174, 184, 883 P.2d 341 (1994)), see also State v. Modest, 88 Wn. App. 239, 252, 944
P.2d 417 (1997). Accordingly, we accept the State’s concession and hold that the trial court erred
by considering the multiple victims aggravating factor as a matter of law.
D. RESENTENCING REQUIRED
We must next address whether Menzies is entitled to resentencing. We hold that reversal
of the exceptional sentences and remand for resentencing is required.
“Where the reviewing court overturns one or more aggravating factors but is satisfied that
the trial court would have imposed the same sentence based upon [the remaining factor or factors],
it may uphold the exceptional sentence rather than remanding for resentencing.” Jackson, 150
Wn.2d at 276. It must, however, be “clear whether the trial court would have imposed an
exceptional sentence on the basis of only the [factors] upheld.” Gaines, 122 Wn.2d at 512
(emphasis added) (citing State v. Henshaw, 62 Wn. App. 135, 140, 813 P.2d 146 (1991)).
The required clarity often comes from an express statement by the trial court that a single
factor alone would be a “sufficient basis for the exceptional sentence imposed.” State v. Harding,
62 Wn. App. 245, 250, 813 P.2d 1259 (1991). But, lacking such an express statement, the record
must, at a minimum, allow us to conclude that the trial court would have imposed the same
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No. 51431-1-II
sentence based on the remaining aggravating factor or factors without engaging in speculation.
See State v. Weller, 185 Wn. App. 913, 344 P.3d 695 (2015).
Here, the record shows that the trial court initially discussed only the abuse of trust and
multiple incidents aggravating factors and concluded that these factors supported exceptional
sentences. Because the trial court stated that these two factors would support exceptional sentences
before mentioning the third factor, multiple victims, we do not have to speculate to hold that the
trial court would have imposed exceptional sentences based on fewer than all three aggravating
factors. But because the trial court also acknowledged the number of victims aggravating factor
before announcing the length of the exceptional sentences without stating how this additional
factor influenced its final sentencing decision, “we would need to speculate to hold that the trial
court would have imposed the same exceptional sentences based on only the [remaining]
aggravating factor[s].” Weller, 185 Wn. App. at 931 (emphasis added). Accordingly, we reverse
Menzies’s exceptional sentences and remand this matter back to the trial court for resentencing
without the multiple victims aggravating factor.
II. LFOs
Menzies also argues that under the current law we should vacate the $200 criminal filing
fee because he is indigent and strike the LFO interest provision. Because we are already remanding
for resentencing, the trial court should reconsider the LFOs in light of the current law.
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No. 51431-1-II
CONCLUSION
We reverse the exceptional sentences and remand to the trial court for resentencing
without considering the multiple victim aggravating factor. On remand, the trial court should
reconsider the LFOs in light of the current law.
A majority of the panel having determined that this opinion will not be printed in the
Washington Appellate Reports, but will be filed for public record in accordance with RCW 2.06.040,
it is so ordered.
SUTTON, J.
We concur:
MELNICK, P.J.
CRUSER, J.
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