State Of Washington v. Jeffrey Wayne Weller & Sandra Doreen Weller ( 2015 )

COURT OFAPPEALS
DIVISION II
2015 FEB 18 AM 9: 16
STAT O ;_ 1GTON
BY
IN THE COURT OF APPEALS OF THE STATE OF WASHING
DIVISION II
STATE OF WASHINGTON, Consolidated Nos. 44726 -6 -1I
44733 -9 -11
Respondent,
v.
PART PUBLISHED OPINION
JEFFREY W. WELLER,
Appellant.
STATE OF WASHINGTON,
Respondent,
v.
SANDRA D. WELLER,
Appellant.
MAXA, J. — Jeffrey Weller and Sandra Weller appeal their multiple convictions for
various degrees of assault and unlawful imprisonment, as well as their exceptional sentences.
The convictions arose from their abuse of their 16- year -old twins, which included multiple
beatings with a board and food deprivation. The Welters argue that the trial court erred in failing
to suppress the board that officers seized from the Welters' garage and that their exceptional
sentences are invalid because their convictions could have been based on accomplice liability.
We hold that the trial court did not err in failing to suppress the board that officers seized
from the Welters' garage because the community caretaking function and plain view exceptions
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to the warrant requirement were applicable. We also hold that the deliberate cruelty aggravating
factor was valid to support the trial court' s exceptional sentence but the ongoing pattern of abuse
aggravating factor was not. Because the record does not reveal whether the trial court would
have imposed the same exceptional sentences based only on the deliberate cruelty aggravating
factor, we must remand for resentencing. In the unpublished portion of this opinion we address
and reject the Wellers' additional arguments regarding their convictions and sentences.
Accordingly, we affirm the Wellers' convictions, but we remand to the trial court for
resentencing.
FACTS
Report ofAbuse
Sandra and Jeffrey Weller had six children in their care and under their custody: 16 -year-
old twins ( CW, a boy and CG, a girl) adopted by Sandra2 and her former husband, two of
Jeffrey' s biological children, one of Sandra' s biological children, and one biological child of
Sandra and Jeffrey together. In early October 2011, the twins left their therapist a note reporting
abuse from their parents, stating that they were fearful and asking for help. The therapist made a
mandatory report to Child Protective Services ( CPS).
On October 7, CPS investigator Margie Dunn visited the Weller residence and after
interviewing Jeffrey and Sandra, assessed that CW and CG were unsafe. Dunn left the Weller
residence for safety reasons and called in the assistance of the Vancouver Police Department.
1 Since CW and CG were minors at the time of the commission of the crimes, we use their
initials to identify them.
2 We use the defendants' first names where appropriate to avoid confusion.
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Welfare Check
Officers Jensen and Aldridge and four other officers arrived at the Weller residence to
conduct a welfare check. The officers believed their purpose was to evaluate the Weller home
environment and the twins' credibility to determine whether the children should be removed and
placed into protective custody. 3 One of the officers knocked on the front door and explained to
Sandra that the purpose of their visit was to perform a welfare check on the children. The
officers did not have a search warrant. Officer Aldridge asked if they could come inside and
speak with Sandra and the children. Sandra stepped back from the door and the officers entered
the house.
The officers attempted to talk privately with the twins. Officer Jensen and CW talked in
one room. Officer Aldridge and CG talked in another room, and ultimately moved into the
garage for greater privacy. Both children described being beaten repeatedly with a board.
Discovery of the Board
Both officers and the twins ultimately went together into the garage to talk. The only
purpose in going to the garage was for privacy. CG and CW started to look around for the board,
although not at the officers' direction.
Officer Aldridge was standing in the same place as when she entered the garage when she
looked around and saw a board leaning against the garage wall in plain view. She asked the
children if that was the board used to beat them, and they replied that it was. Officers Jensen and
3 RCW 26.44.050 gives law enforcement responding for a welfare check the statutory authority
to determine whether or not children should be removed from their home environment into
protective custody.
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Aldridge both reported that the board was in a position where they could clearly see it from
where they were standing. Officer Jensen picked up the board, and both officers observed the
board had a long groove in it as well as discoloration that appeared to be consistent with dried
blood. Officer Aldridge estimated that at that time the officers had been at the Weller residence
for 20 minutes and she testified that they " had no idea that this was heading toward a criminal
investigation." J. Weller Report of Proceedings ( RP) ( Jan. 31, 2013) at 185.
Criminal Charges.
Based on her observations, Officer Aldridge decided to remove the twins and the other
children from the Weller residence. After speaking with the children, the State filed multiple
charges against the Wellers, including several charges of second, third, and fourth degree assault,
and several counts of unlawful imprisonment. The record is unclear on whether each was
charged as both a principal and an accomplice. For most of the charges, the State alleged that
each defendant' s conduct manifested deliberate cruelty to the victims and was part of an ongoing
pattern of abuse.
Motion to Suppress the Board
The Wellers moved to suppress the board, arguing that it was seized during an unlawful
search of their residence without a warrant. They argued that the emergency aid exception to the
warrant requirement was inapplicable because there was no immediate threat of injury to any
persons and that entry into the house was a pretext for a search for evidence of a crime. The
State responded that the officers' warrantless entry into the Weller residence was justified both
by Sandra' s consent and law enforcement' s community caretaking function, and that the seizure
of the board from the Weller garage was justified under the plain view doctrine.
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At the suppression hearing, Jeffrey assumed that the emergency aid exception applied,
but argued that at the time the board was found the officers were conducting a criminal
investigation rather than a welfare check. Sandra also argued that law enforcement had begun a
criminal investigation by the time the officers had spotted the board in the Weller garage. The
trial court denied the motion to suppress, concluding in a detailed oral ruling that the officers
lawfully were in the garage under the community caretaking exception and that they were
authorized to seize the board because it was in plain view. The trial court did not enter written
findings of fact or conclusions of law following the suppression hearing.
Convictions and Sentences
The case proceeded to a jury trial. The jury found Jeffrey guilty on most counts and the
trial court sentenced him for five counts of second degree assault, one count of unlawful
imprisonment, one count of third degree assault of a child, and two counts of fourth degree
assault. 4 The jury also found Sandra guilty on most counts and the trial court sentenced her for
four counts of second degree assault and one count of unlawful imprisonment. 5 For all of
Jeffrey' s and Sandra' s convictions, the jury returned a special verdict form answering yes to the
questions " Did the defendant' s conduct during the commission of the crime manifest deliberate
cruelty to the victim ?" and " Was the crime part of an ongoing pattern of psychological or
4 Several of the additional counts Sandra and Jeffrey were convicted of were dismissed because
they merged into the other convictions.
5 Sandra' s appellate brief contends in its statement of facts that Sandra was convicted by
complicity for her four counts of second degree assault. The jury verdicts do not state this.
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physical abuse of the victim manifested by multiple incidents over a prolonged period of time ?','
J. Weller Clerk' s Papers ( CP) at 151; S. Weller CP at 106.
The trial court imposed exceptional sentences of 240 months confinement for both
Sandra and Jeffrey. Both of the exceptional sentences were based on the jury' s findings that the
Wellers' conduct manifested deliberate cruelty to the victims and occurred as part of an ongoing
pattern of abuse.
Jeffrey and Sandra appeal their convictions and their exceptional sentences.
ANALYSIS
A. WARRANTLESS SEIZURE OF THE BOARD
The Wellers argue that the officers seized the board used to beat CW and CG in an
unlawful warrantless search of their garage, and therefore that the trial court erred in denying
their CrR 3. 6 motion to suppress the board. We disagree, and hold that the trial court did not err
when it concluded that ( 1) the officers' entry into the garage to privately interview the children
was lawful under the community caretaking function exception to the warrant requirement, and
2) the seizure of the board was lawful under the plain view exception to the warrant
requirement.
1. Legal Principles
Both the Fourth Amendment to the United States Constitution and article I, section 7 of
the Washington State Constitution prohibit warrantless searches and seizures unless one of the
narrow exceptions to the warrant requirement applies. State v. Garvin, 166 Wash. 2d 242, 249, 207
P.3d 1266 ( 2009). The State bears the burden of demonstrating that a warrantless search or
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seizure falls within an exception to the warrant requirement. State v. Duncan, 146 Wash. 2d 166,
172, 43 P.3d 513 ( 2002).
The community caretaking function exception to the warrant requirement arises from law
enforcement officers' community caretaking function and involves two aspects: officers
rendering aid or assistance ( emergency aid exception) or making routine checks on health and
safety ( health and safety check exception). State v. Schultz, 170 Wash. 2d 746, 754, 248 P.3d 484
2011); State v. Thompson, 151 Wash. 2d 793, 802, 92 P.3d 228 ( 2004); State v. Kinzy, 141 Wash. 2d
373, 386, 5 P.3d 668 ( 2000). Another exception to the warrant requirement is the plain view
exception, which allows officers to seize an object if they are lawfully present in a
constitutionally protected area and the object is in plain view. 6 State v. Hudson, 124 Wash. 2d 107,
114, 874 P.2d 160 ( 1994).
When reviewing the denial of a suppression motion, we determine whether substantial
evidence supports the trial court' s findings of fact and whether the findings support the
conclusions of law. Garvin, 166 Wash. 2d at 249. We review de novo the trial court' s conclusions
of law pertaining to the suppression of evidence. Id. Specifically, whether an exception to the
warrant requirement applies is a question of law that we review de novo. See id.
6
Another exception is consent. State v. Ferrier, 136 Wash. 2d 103, 111, 960 P.2d 927 ( 1998). But
the State does not argue that the Wellers' consented to the officers' entry into their garage by
opening the door and allowing them to come in to their house. And mere acquiescence when
officers enter a home does not constitute consent. Schultz, 170 Wash. 2d at 757, 759.
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2. Failure to Enter Written Findings and Conclusions
Sandra initially argues that the trial court erred by failing to enter written findings of fact
and conclusion of law supporting its CrR 3. 6 ruling. Although failure to enter findings of fact
and conclusions of law is error, such error is harmless if the trial court' s oral findings are
sufficient to permit appellate review. See State v. Bluehorse, 159 Wash. App. 410, 423, 248 P.3d
537 ( 2011).
Here, the trial court provided a detailed oral ruling that included numerous oral factual
findings regarding the officers' conduct and the events leading up to the seizure, and legal
conclusions regarding the applicability of exceptions to the warrant requirement. As a result, we
hold that the trial court' s oral findings and conclusions are sufficient to permit appellate review.
3. Community Caretaking Function Exception
The Wellers argue that the trial court erred in reaching a legal conclusion that the
officers' presence in the Wellers' garage was lawful under the community caretaking function
exception to the warrant requirement. We disagree.
7 The State also argues that in oral argument of the CrR 3. 6 suppression motion, the Wellers
abandoned any arguments that ( 1) the emergency aid exception to the warrant requirement did
not justify the officers' initial entry into their house, and ( 2) the plain view doctrine does not
apply. As a result, the State claims that the Wellers are precluded from making these arguments
on appeal. We disagree. The Wellers did argue below in Jeffrey' s written motion (although not
at oral argument) that the emergency aid exception was inapplicable, and the court ruled on that
issue as well as the plain view issue. Accordingly, we hold that the Wellers did not waive their
arguments on these issues.
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a. Two Aspects of Community Caretaking
Our Supreme Court has recognized a " community caretaking function" exception to the
warrant requirement. Thompson, 151 Wash. 2d at 802; Kinzy, 141 Wash. 2d at 386. " This exception
allows for the limited invasion of constitutionally protected privacy rights when it is necessary
for police officers to render aid or assistance or when making routine checks on health and
safety." Thompson, 151 Wash. 2d at 802. As noted in Thompson, there are two aspects to the
community caretaking function: ( 1) the emergency aid exception, Schultz, 170 Wash. 2d at 754,
8
and ( 2) the health and safety check exception. Kinzy, 141 Wash. 2d at 387. The emergency aid
exception involves greater urgency and allows searches resulting in a greater intrusion. Id. at
386.
A search pursuant to the community caretaking function exception must be totally
divorced from a criminal investigation. Id. at 385. The exception does not apply where an
officer' s primary motivation is to search for evidence or make an arrest. State v. Williams, 148
Wash. App. 678, 683, 201 P.3d 371 ( 2009).
Both the State and the Wellers focus on the emergency aid exception to the warrant
requirement, but the trial court' s oral ruling also could be interpreted as applying the more
8 The cases have been less than clear about whether the community caretaking function
exception and the emergency aid exception are synonymous or separate. However, Kinzy makes
it clear that the community caretaking function exception involves both emergency aid and
routine health and safety checks. 141 Wash. 2d at 386 -87. And our Supreme Court more recently
noted that the emergency aid exception is a " subset" of the community caretaking exception.
State v. Smith, 177 Wash. 2d 533, 541, 303 P.3d 1047 ( 2013).
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general exception for routine health and safety checks. Because we decide this issue based on
the health and safety check aspect exception as discussed below, we do not address the
emergency aid exception.
b. Health and Safety Check Exception
To invoke the health and safety check exception, the State must show that ( 1) the officer
health assistance, ( 2) a reasonable person in the
subjectively believed someone needed or safety
same situation would believe that there was a need for assistance, and ( 3) there was a reasonable
1°
basis to associate the need for assistance with the place searched. Thompson, 151 Wash. 2d at
802. Next, the. State must show that the encounter under this exception was reasonable, which
depends upon a balancing of the individual' s interest in freedom from police interference against
the public' s interest in having the police perform a community caretaking function. Thompson,
151 Wash. 2d at 802. " When weighing the public' s interest, this [ c] ourt must cautiously apply the
community caretaking function exception because of the potential for abuse." Kinzy, 141 Wash. 2d
at 391.
Here, the three requirements for application of the health and safety check exception
clearly were satisfied. The officers subjectively and reasonably believed that the Weller children
needed health or safety assistance. A trained CPS investigator relayed to the officers her
9 The trial court ruled that the officers' search of the Wellers' garage was lawful because they
were within the scope of their community caretaking function at the time. The trial court stated
that the community caretaking function also was referred to as the " Health and Safety
Emergency," which seems to merge the two separate exceptions. J. Weller RP ( Feb. 1, 2013) at
287.
10 These also are the first three parts of the test for application of the emergency aid exception,
which also includes three additional requirements. Schultz, 170 Wash. 2d at 754 -761.
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professional opinion that the Weller children were not safe and were expressing severe fear. And
the officers had a reasonable basis to associate the need for assistance with the Wellers'
residence — the CPS official told them that the children were in the residence. Further, based on
this information, the balancing process shows that the officers' initial entrance into the Weller
residence was justified because the public' s interest in having the officers perform a welfare
check on the children outweighed the Wellers' privacy interests in the foyer of their residence.
See Thompson, 151 Wash. 2d at 802.
Once the officers moved into other rooms of the residence and ultimately to the garage,
the Wellers' privacy interests became more significant — entering a residence' s garage is more
intrusive than entering the foyer. However, the trial court expressly found that the officers had
no pretextual purpose in entering the residence, that at all times they were engaged in the
community caretaking function. These findings are supported by the evidence, which shows that
the officers' only purpose in entering the Wellers' residence and later their garage was to carry
out their community caretaking. function. Specifically, the evidence shows that the officers were
in the garage because they were trying to find a private place to interview the children in
conjunction with their welfare check. Further, the trial court found that the officers simply
ended up in the garage." J. Weller RP ( Feb. 1, 2013) at 288. Nothing in the record suggests
that the officers were searching the garage or looking for evidence.
The trial court did not expressly state that it engaged in the balancing process required for
application of the health and welfare check exception. Nevertheless, the trial court' s factual
findings support the conclusion that under the circumstances of this case, the officers' entry into
the garage in order to properly conduct their welfare check outweighed the Wellers' privacy
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interest in their garage. Accordingly, we affirm the trial court' s application of the community
caretaking function to the officers' entrance into the Wellers' residence and garage.
4. Plain View Doctrine
The " plain view" exception to the warrant requirement applies when officers ( 1) have a
valid justification for being in a constitutionally protected area, and ( 2) are immediately able to
realize that an item they can see in plain view is associated with criminal activity. State v.
Hatchie, 161 Wash. 2d 390, 395, 166 P.3d 698 ( 2007). The test for determining when an item is
immediately apparent for purposes of a plain view seizure is whether, considering the
surrounding circumstances, the police can reasonably conclude that the item is incriminating
evidence. Hudson, 124 Wash. 2d at 118. Officers do not need to be certain that the item is
associated with criminal activity —probable cause is sufficient. See id.
Here, we hold that the officers were lawfully present in the Wellers' garage. Further, the
surrounding facts and circumstances allowed the officers to reasonably conclude that the board
was evidence of a crime. The officers initially arrived at the scene where they were informed of
the twins' CPS report, which alleged frequent beatings with a potentially bloody board. As the
welfare check progressed, both twins reported separately to each officer that Jeffrey would
periodically beat them with a board. Further, when the officers were in the garage, the children
began to look for the board. And the children immediately confirmed that the board Officer
Aldridge saw was in fact the board used to beat them.
The trial court did not enter any specific factual findings regarding plain view. However,
these facts support the conclusion that the officers could have reasonably concluded after
listening to the twins' reports that the board Officer Aldridge saw in the garage was the board
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used to beat the children and therefore was incriminating evidence. As a result, we hold that the
plain view exception to the warrant requirement applied to the officers' seizure of the board. We
affirm the trial court' s denial of the Wellers' motion to exclude the board.
B. EXCEPTIONAL SENTENCES
The Wellers argue the trial court erroneously imposed their exceptional sentences
because the jury did not expressly find that the deliberate cruelty and ongoing pattern of abuse
aggravating factors were based on principal liability as opposed to accomplice liability. We hold
that the deliberate cruelty aggravating factor was a valid basis for the trial court' s imposition of
the exceptional sentences, but the ongoing pattern of abuse aggravating factor was not. Because
we cannot determine from the record whether the trial court would have imposed the same
exceptional sentences based on only the deliberate cruelty aggravating factor, we must remand
11
for resentencing.
1. Deliberate Cruelty Aggravating Factor
In order for the trial court to impose an exceptional sentence, the aggravating factor
supporting the exceptional sentence generally must be based on the defendant' s own conduct.
State v. Hayes, No. 89742 -5, 2015 WL 481023, at * 2 ( Wash. Feb. 5, 2015). As a result, an
aggravating factor cannot be applied to an accomplice unless the accomplice' s own conduct or
knowledge of the principle' s conduct informs the aggravating factor. Id.
11 The Wellers also argue that their exceptional sentences were based in part on judicial fact
finding, which violated their Sixth Amendment jury trial right. We disagree. Here, the jury —
and not the trial found the two aggravating factors. And the trial court expressly relied
court —
on those findings in imposing the exceptional sentences. Although the trial court ruled that the
jury' s findings were supported by the evidence, it properly was evaluating the evidence
supporting the jury' s findings before imposing the exceptional sentences.
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The Wellers argue that this rule applies to the deliberate cruelty aggravating factor
because the trial court' s instructions allowed the jury to convict each of them as an accomplice.
However, here there is no possibility that the jury found the aggravating factor for one of the
Wellers based on the conduct of the other. Instead, for each charge of each defendant the jury
was asked, " Did the defendant' s conduct during the commission of the crime manifest deliberate
cruelty to the victim ?" E.g., J. Weller CP at 151; S. Weller CP at 106 ( emphasis added). And
for each count the jury answered in the affirmative. Therefore, the trial court' s imposition of an
exceptional sentence based on the deliberate cruelty aggravating factor was based on Jeffrey' s
and Sandra' s own conduct, regardless of whether their convictions were based on accomplice
liability.
We hold that the deliberate cruelty aggravating factor was a valid basis for the trial
court' s imposition of the Wellers' exceptional sentences.
2. Ongoing Pattern of Abuse Aggravating Factor
Unlike the deliberate cruelty aggravating factor, the jury' s finding of the ongoing pattern
of abuse aggravating factor for both Jeffrey and Sandra could have been based on each other' s
conduct. For each charge the jury was asked, " Was the crime part of an ongoing pattern of
psychological or physical abuse of the victim manifested by multiple incidents over a prolonged
period of time ?" E.g., J. Weller CP at 151; S. Weller CP at 106 ( emphasis added). The jury
answered in the affirmative. As a result, the jury did not specifically find that either Jeffrey or
Sandra engaged in an ongoing pattern of abuse or that either Jeffrey or Sandra knew the other
engaged in an ongoing pattern of abuse. Hayes, 2015 WL 481023, at * 2.
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The State concedes that the ongoing pattern of abuse aggravating factor was not valid
with regard to Sandra. We accept the State' s concession. The court' s instructions allowed
Sandra to be convicted as an accomplice, and the jury did not find that either Sandra' s conduct or
her knowledge of Jeffrey' s conduct informed the aggravating factor. Hayes, 2015 WL 481023,
at * 2.
However, the State does not concede that the ongoing pattern of abuse aggravating factor
is invalid as to Jeffrey. The State argues that based on the evidence, the jury could only have
convicted Jeffrey as a principal and not as an accomplice. We disagree.
With regard to the beatings of the children, the children' s testimony was that only Jeffrey
administered those beatings while Sandra encouraged him. However, there also were other
forms of abuse — such as withholding food from the for which the jury could have
children —
found that Sandra was the principal and Jeffrey was the accomplice. And the State chose to
charge Jeffrey as an accomplice. Therefore, it is possible that the jury could have convicted
Jeffrey as an accomplice to Sandra' s abuse rather than convicting him as a principal for the
beatings. Under these circumstances, the jury' s finding of the ongoing pattern of abuse
aggravating factor as to Jeffrey could have been based on Sandra' s conduct, and therefore was
not a valid basis for the imposition of an exceptional sentence.
We hold that the ongoing pattern of abuse aggravating factor was not a valid basis for the
trial court' s imposition of an exceptional sentence for either Jeffrey or Sandra.
3. Exceptional Sentence Based on One Valid and One Invalid Factor
The State argues that as long as one aggravating factor supports the trial court' s
exceptional sentences, those sentences can be affirmed even though another aggravating factor
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supporting the exceptional sentence is held to be an invalid basis for imposing the sentences.
The State argues that we should affirm the trial court' s imposition of the exceptional sentence
based solely on the deliberate cruelty aggravating factor. We disagree.
A reviewing court can affirm an exceptional sentence even though not every aggravating
factor supporting the exceptional sentence is valid. " 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 a factor or factors that are upheld, it may uphold the exceptional sentence
rather than remanding for resentencing." State v. Jackson, 150 Wash. 2d 251, 276, 76 P.3d 217
2003). This rule is particularly appropriate when the trial court expressly states that the same
exceptional sentence would be imposed based on any one of the aggravating factors standing
alone. See State v. Nysta, 168 Wash. App. 30, 54, 275 P.3d 1162 ( 2012).
Here, the trial court stated that both the deliberate cruelty aggravating factor and the
ongoing pattern aggravating factor independently provided authority to order the exceptional
sentence. However, the trial court did not specifically state that it would impose the same length
of exceptional sentence based on each of the aggravating factors standing alone. Therefore, the
record is unclear as to how the trial court would have sentenced the Wellers if it had not
considered the ongoing pattern aggravating factor.
Based on the record before us, we would need to speculate to hold that the trial court
would have imposed the same exceptional sentences based on only the deliberate cruelty
aggravating factor. Accordingly, we must remand to the trial court for resentencing.
CONCLUSION
We affirm the Wellers' convictions, but we remand to the trial court for resentencing.
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A majority of the panel having determined that only the foregoing portion of this opinion
will be printed in the Washington Appellate Reports and that the remainder shall be filed for
public record in accordance with RCW 2. 06. 040, it is so ordered.
In the unpublished portion of this opinion, we address and reject the Wellers' remaining
arguments. We hold that ( 1) the information charging the Wellers with unlawful imprisonment
was not required to contain the statutory definition of "restrain," ( 2) Washington' s accomplice
liability statute is not unconstitutionally overbroad, and ( 3) Sandra' s statement of additional
grounds ( SAG) assertions do not support reversal.
A. RIGHT TO NOTICE - CHARGING DOCUMENT
The Wellers argue that the information charging them with unlawful imprisonment failed
to allege the essential elements of the charge. Specifically, the information alleged that they
knowingly restrain[ ed]" the children. J. Weller CP at 3 - 4. The Wellers assert that an
information that only alleges " knowing restraint" is inadequate because it does not include the
statutory definition of "restraint." Br. of Appellant J. Weller at 12 -13.
Our Supreme Court expressly rejected this argument in State v. Johnson, 180 Wash. 2d 295,
325 P.3d 135 ( 2014). The court held that the information charging unlawful imprisonment need
include only the statutory elements of unlawful impris inment, as was done here. Id. at 300 -03.
Accordingly, based on Johnson we hold the information charging the Wellers was
constitutionally sufficient.
B. ACCOMPLICE LIABILITY STATUTE
Jeffrey contends that Washington' s accomplice liability is overbroad because it
criminalizes constitutionally protected speech. We rejected this argument in State v. Ferguson,
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164 Wn. App. 370, 375 -76, 264 P.3d 575 ( 2011). The other divisions of this court also have
rejected this argument. State v. Holcomb, 180 Wash. App. 583, 590, 321 P.3d 1288, review
denied, 180 Wash. 2d 1029 ( 2014); State v. Coleman, 155 Wash. App. 951, 961, 231 P.3d 212 ( 2010).
Under Ferguson, we hold that the accomplice liability statute is not unconstitutional.
C. SANDRA WELLER' S SAG
Sandra' s SAG argues three main issues: ( 1) the officers unconstitutionally searched her
house without a warrant, (2) several of the facts presented at trial were erroneous, and ( 3) there
was insufficient evidence to support her convictions or her exceptional sentence. We hold that
none of these contentions support reversal of Sandra' s convictions or sentence.
A defendant may file a SAG, subject to limitations. First, we consider an issue in a SAG
only where it adequately informs us of the nature and occurrence of alleged errors. RAP
10. 10( c); State v. Alvarado, 164 Wash. 2d 556, 569, 192 P.3d 345 ( 2008). Second, we consider
only arguments that we did not already adequately address as raised by the defendant' s appellate
counsel. See RAP 10. 10( a) ( providing that the purpose of a SAG is to " identify and discuss
those matters related to the decision under review that the defendant believes have not been
adequately addressed by the brief filed by the defendant' s counsel "). Third, issues involving
facts outside of the record are properly raised in a personal restraint petition ( PRP), not in a
SAG. Alvarado, 164 Wash. 2d at 569.
1. Search of House
With regard to Sandra' s first SAG contention, her appellate counsel already addressed the
issue of whether the search of the Weller residence was constitutional. Therefore, we need not
separately address Sandra' s argument on this issue. See RAP 10. 10( a).
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2. Erroneous Trial Testimony
We also do not address Sandra' s many contentions that several of the facts testified to at
trial were not in accordance with the truth. These issues depend on matters outside the record
before us in this direct appeal. As a result, we cannot consider them in this direct appeal. State
v. McFarland, 127 Wash. 2d 322, 335, 899 P.2d 1251 ( 1995). They are more properly raised in a
PRP. Id.
3. Sufficient Evidence for Convictions
Evidence is sufficient to support a conviction if after viewing the evidence in the light
most favorable to the prosecution, we determine that a rational fact finder would have found the
elements of the crime beyond a reasonable doubt. State v. Homan, 181 Wash. 2d 102, 105, 330
P.3d 182 ( 2014). We defer to the trier of fact on issues of conflicting testimony, witness
credibility, and persuasiveness of the evidence. State v. Thomas, 150 Wash. 2d 821, 874 -75, 83
P.3d 970 ( 2004).
In this case, Sandra was found guilty and sentenced on four counts of second degree
assault and one count of unlawful imprisonment. The jury' s verdict does not make explicit
whether it found Sandra guilty under a theory of principal or accomplice liability. However, the
State argued at trial that Sandra was an accomplice to Jeffrey in the assault and unlawful
imprisonment of CW and CG.
To support a conviction for second degree assault, the State must show there was ( 1) an
assault with ( 2) a deadly weapon. RCW 9A. 36. 021( 1)( c). Here, the State presented evidence
that Sandra encouraged Jeffrey to hit the Weller children with a board, which resulted in beatings
so ferocious that they drew blood and resulted in at least one broken bone and permanent skin
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discoloration. This evidence is sufficient to support Sandra' s convictions for second degree
assault.
To support a conviction for unlawful imprisonment, the State must show Sandra ( 1)
restricted another' s movements, ( 2) without that person' s consent, ( 3) without legal authority,
and ( 4) in a mamier that substantially interfered with that person' s liberty. RCW 9A.40. 040;
Johnson, 180 Wash. 2d at 301 -02. Here, the State presented evidence that ( 1) CG was forced to
remain for most of the day in her locked room, with an alarm on the outside of the door, and a
missing inside door handle; ( 2) she was only able to leave her room with Sandra' s or Jeffrey' s
permission; and ( 3) she was locked in her room with such frequency that her younger siblings cut
a hole in between their bedroom walls to pass food through to CG. Because CG was unable to
leave her room, her younger siblings testified that they took it upon themselves to procure food
for her. This evidence is sufficient to support Sandra' s convictions for unlawful imprisonment.
Viewing the evidence in the light most favorable to the State, the evidence was sufficient
for any rational trier of fact to find beyond a reasonable doubt that Sandra was guilty of four
counts of second degree assault and one count of unlawful imprisonment. Therefore, we hold
that there was sufficient evidence to support her convictions.
4. Sufficient Evidence for Exceptional Sentence
Sandra argues that there was insufficient evidence to support the jury' s finding of the
aggravating factors that supported her exceptional sentence. We disagree with regard to the
deliberate cruelty aggravating factor. The trial court carefully outlined the facts supporting this
factor, and ruled that the evidence was sufficient to support the jury' s findings. We hold that the
evidence clearly supports the jury' s finding that Sandra engaged in deliberate cruelty.
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We need not address this argument regarding the ongoing pattern of abuse aggravating
factor because we hold above that this factor was not valid with regard to Sandra.
We affirm the Wellers' convictions, but we remand for resentencing.
We concur:
JHANSON, C. J.
SUTTON, J.
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