Opinion
No. 36734-3-II.
March 3, 2009.
Appeal from a judgment of the Superior Court for Mason County, No. 07-1-00129-8, Toni A. Sheldon, J., entered August 9, 2007.
Affirmed in part and remanded by unpublished opinion per Penoyar, J., concurred in by Van Deren, C.J., and Quinn-Brintnall, J.
Renee Field appeals her third degree assault conviction, claiming the State failed to prove criminal negligence and the sentencing court erred in imposing a sentence greater than the statutory maximum for the offense. We affirm the conviction but remand for the sentencing court to clarify the judgment and sentence.
In violation of RCW 9A.36.031(1)(d) and RCW 9A.08.020.
Facts
On November 12, 2006, Dorsey Moody's 15-year-old daughter, AM, came home after being gone for four days. She had told Moody that she was staying at a girlfriend's house on Thursday night and would be home on Friday. When she did not come home, Moody called AM's friend's mother and learned that AM had not and was not staying there. When AM came home on Sunday night, Moody discussed with AM how he should discipline her for not calling, not telling the truth, and not coming home. AM thought phone restrictions would be appropriate. Moody disagreed and sent her to her room. About five minutes later, Moody picked up a sledgehammer handle from the living room and went into AM's room and told her he was going to spank her. AM did not cooperate and Moody struck her arm while attempting to strike her buttocks.
He then called out for Field to come into the bedroom. Field had been in the kitchen making turkey soup and tending to Moody's three-year-old daughter. When Moody saw Field, he asked her to hold AM's arms so that he could spank her. Field then held AM's arms above AM's head and Moody struck AM with the wooden handle five times. Moody and Field then left the bedroom.
When AM came out of her room and into the kitchen a few minutes later, Field told her she was losing computer privileges for at least two weeks and to unplug her computer and put it in Field and Moody's room. Field explained at trial that this was her way of punishing AM for the misbehavior. AM then told her father she was going out to check the mail. Instead, she went to a neighbor's home, called her aunt, and then called the police.
When the police arrived, Moody was standing out by the road. He told the officer what happened and retrieved the wooden handle. Moody ultimately pleaded guilty to third degree assault.
The State charged Field with third degree assault as either a principal or accomplice and with a special finding that the offense involved domestic violence. The jury found her guilty of the assault charge but found by special verdict that hers was not a domestic violence act. The trial court imposed a 53 month standard range sentence to be followed by 9 to 18 months' community custody.
ANALYSIS
I. Sufficiency of the Evidence
Field argues that the State failed to show the intent element of third degree assault. The court's to-convict instruction provided:
To convict the defendant of the crime of assault in the third degree, each of the following elements of the crime must be proved beyond a reasonable doubt:
(1) That on or about the 12th day of November, 2006, the defendant caused bodily harm to another person, or was an accomplice in causing such bodily harm;
(2) That the physical injury was caused by a weapon or other instrument or thing likely to produce bodily harm;
(3) That the defendant acted with criminal negligence; and
(4) That the acts occurred in the State of Washington.
Clerk's Papers (CP) at 50. The court defined criminal negligence as:
A person is criminally negligent or acts with criminal negligence when he or she fails to be aware of a substantial risk that a wrongful act may occur and the failure to be aware of such substantial risk constitutes a gross deviation from the standard of care that a reasonable person would exercise in the same situation.
Criminal negligence is also established if a person acts intentionally or knowingly or recklessly.
CP at 44. Field argues that the evidence was insufficient to show that she or Moody was criminally negligent. She points to Moody's testimony that he was trying not to hurt AM, that he could not paddle her without hurting her hands, and that he asked Field "to hold her hands out of the way so that I would not hit her hands." 2 Report of Proceedings (RP) at 91. He explained, "I did not want to hurt her. I only wanted to express that, you know, dad was not happy with you being gone four days." 2 RP at 91.
Field also argues that there was insufficient evidence that she was an accomplice. While admitting that she held AM's hands above her head, she explained that she did it in order to protect AM's hands from Moody's paddling. She testified that she only heard Moody and AM talking in her bedroom, that she did not hear angry words, and she did not hear any assaultive behavior. Her intentions, she argues, in light of all the relevant circumstances, did not amount to criminal negligence.
When facing a challenge to the sufficiency of the evidence, we ask whether, after viewing the evidence in a light most favorable to the State, any rational trier of fact could have found the essential elements of the charged crime beyond a reasonable doubt. State v. Green, 94 Wn.2d 216, 221, 616 P.2d 628 (1980). Because credibility determinations are for the trier of fact and are not subject to review, State v. Camarillo, 115 Wn.2d 60, 71, 794 P.2d 850 (1990), we defer to the trier of fact on issues of conflicting testimony, credibility of witnesses, and the persuasiveness of the evidence. State v. Walton, 64 Wn. App. 410, 415-16, 824 P.2d 533 (1992).
AM's testimony varied from Moody's in many respects and supports the jury's verdict. She testified that her father was "overly angry, insane," that he came into her room with the wooden handle to beat her, that she tried to fend off his blows by blocking them with her arms, and that he pushed her to the floor. 3 RP at 134. She testified that at one point Field came into the room, grabbed her by the ponytail, and threw her onto the bed where Field held down AM's head and arms while Moody beat her. She also testified that the welts and bruises lasted three to four weeks. Also, the State introduced photographic evidence showing the welts on AM's arm, back, and buttocks. A jury could easily find that Field enabled and assisted Moody as he assaulted his daughter by holding AM's arms so that Moody could strike AM without AM resisting.
II. Length of Sentence.
The sentencing court imposed a 53 month standard range sentence and an additional 9 to 18 months' community custody. Because Field's sentence potentially exceeds the statutory maximum of 60 months' incarceration, she asks that she be resentenced, limiting her community custody to 7 months.
A sentencing court "may not impose a sentence providing for a term of confinement or community supervision, community placement, or community custody which exceeds the statutory maximum for the crime as provided in chapter 9A.20 RCW." RCW 9.94A.505(5); State v. Sloan, 121 Wn. App. 220, 221, 87 P.3d 1214 (2004) (the total punishment, including imprisonment and community custody, may not exceed the statutory maximum) State v. Hudnall, 116 Wn. App. 190, 195, 64 P.3d 687 (2003).
Criticizing the result in Sloan, Field argues that the proper remedy is for resentencing, not for the sentencing court to merely note on the judgment and sentence that the overall sentence cannot exceed 60 months. She reasons that to do so imposes an indeterminate sentence contrary to specific legislative directives given in the Sentencing Reform Act, chapter 9.94A RCW. A determinate sentence is one "that states with exactitude the number of actual years, months, or days of total confinement, of partial confinement, of community supervision, the number of actual hours or days of community restitution work, or dollars or terms of a legal financial obligation." RCW 9.94A.030(21). She argues that this solution deprives a defendant of due process of law in that a defendant could potentially lose earned good time credit and the sentencing court has no authority to impose an indeterminate sentence.
In Sloan, the court reviewed the sentence for a class C felony in which the court imposed a 60 month sentence and 36 to 48 months' community custody. After considering the defendant's potential to earn early release time in prison, the court found no violation of RCW 9.94A.505(5) and remanded for the sentencing court to clarify its sentence, reasoning:
To avoid confusion, therefore, when a court imposes community custody that could theoretically exceed the statutory maximum sentence for that offense, the court should set forth the maximum sentence and state that the total of incarceration and community custody cannot exceed that maximum.
Sloan, 121 Wn. App. at 223-24. This court expressly adopted the Sloan court's reasoning in State v. Vant, 145 Wn. App. 592, 605, 186 P.3d 1149 (2008). See also State v. Davis, 146 Wn. App. 714, 192 P.3d 29 (2008) (discussing Sloan, 121 Wn. App. 220, Hudnall, 116 Wn. App. 190, and State v. Vanoli, 86 Wn. App. 643, 937 P.2d 1166 (1997)), and concluding that a sentencing court may impose an exceptional sentence downward to fit within statutory maximum or clarify a sentence as in Sloan). Field presents no reason why we should reconsider our decision. But see State v. Linerud, ___ Wn. App. ___, 197 P.3d 1224 (2008) (abandoning Sloan); State v. Berg, ___ Wn. App. ___, 198 P.3d 529 (2008) (abandoning Sloan).
Field argues that allowing the trial court to impose a sentence as that allowed in Sloan may operate to deny a defendant her earned early release time in violation of due process. In re Pers. Restraint of Johnston, 109 Wn.2d 493, 496-97, 745 P.2d 864 (1987). We fail to see how this is possible. Should Field earn early release credit while in prison, she would simply begin her period of community custody at an earlier date than if she serves her full sentence while incarcerated. See RCW 9.94A.728(2)(b) (transfer to community custody status in lieu of earned release time). In any case, she will never serve more than the 60 month statutory maximum for her offense.
We also disagree that allowing a clarification amounts to an indeterminate sentence. A sentencing court never knows the exact amount of time an offender will spend in prison (unless it is life without the possibility of parole) because the court cannot know in advance whether the defendant will earn early release time. Instead, the court simply imposes the maximum time an offender will spend in incarceration and in post-incarceration supervision. Field presents no convincing reason to fault the Sloan decision.
We affirm the conviction but remand for the sentencing court to clarify the judgment and sentence.
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 pursuant to RCW 2.06.040, it is so ordered.
VAN DEREN, C.J. and QUINN-BRINTNALL, J., concur.