EXTRA - Wenatchee Woman Sentencing
Anonymous
Curio...@hotmail.com
____________
1996 Wash. App. LEXIS 789
STATE OF WASHINGTON, Respondent, v. L.R.H., Appellant.
No. 14560-3-III
COURT OF APPEALS OF WASHINGTON, DIVISION THREE, PANEL FIVE
December 19, 1996, Filed
PRIOR HISTORY: Appeal from Superior Court of Chelan County.
Docket No: 94-1-00294-6. Date filed: 11/28/94.
Judge signing: Hon. John E. Bridges.
DISPOSITION: Affirmed
COUNSEL: For Appellant: Erik S. Bakke, SR., PO Box 2867,
Wenatchee, WA 98807.
For Respondent: Roy S. Fore, Chelan County Courthouse,
401 Wash St, Po Box 2596 Wenatchee, WA 98807.
JUDGES: Authored by John A. Schultheis. Concurring:
Ray E. Munson, Frank L. Kurtz.
OPINION BY: John A. Schultheis
OPINION: SCHULTHEIS, A.C.J. L.R.H. entered an Alford nl
plea of guilty to eight counts of raping her three minor
children. The court, finding six aggravating factors,
imposed an exceptional sentence. L.R.H. concedes one
aggravating factor is valid, but contends some of the
court's reasons are not supported by the record and some
do not justify an exceptional sentence as a matter of law.
As a result, she argues, the sentence imposed is clearly
excessive. We affirm.
L.R.H. and her husband have three children: D.H. born in
1982, P.H. born in 1983, and M.H. born in 1987. In
January 1994 the children were removed from their home
and placed in foster care after L.R.H. reported her
husband had been sexually assaulting their daughter, P.H.
After reaching a plea agreement with the prosecutor,
Mr. H. was convicted of three counts of child rape and
sentenced in April 1994 to 170 months.
In July 1994 Wenatchee Police Detective Robert Perez
investigated allegations that P.H. had been abused by
others. He interviewed P.H. and D.H., and both children
reported their mother had also sexually abused them.
Detective Perez brought L.R.H. to the police station for
questioning. After he informed her of her rights, she
confessed to ongoing sexual contacts with all three children
individually and in various family groupings since 1987
with D.H. and P.H. and since 1992 with M.H. Detective Perez
booked L.R.H. into Chelan County Regional Jail on 1,528
counts of first degree child rape.
At a CrR 3.5 hearing to determine the admissibility of
her statement, L.R.H. stated she repeatedly denied the
accusations and only admitted involvement after Detective
Perez threatened her with 40 to 50 years in prison
if she persisted with her denials and promised things
would go easier for her if she admitted the charges.
The court did not believe her; it found no threats or
promises were made and the statement was voluntary. L.R.H.
then reached an agreement with the prosecutor: she would
enter an Alford plea to eight counts of first degree child
rape and the prosecutor would recommend a sentence within
the standard range.
In November 1994 L.R.H. was brought before the court
for sentencing. Although she had no criminal history,
the multiple convictions gave L.R.H. an offender score of
21. The standard range for the offenses was 210 to 280
months. The prosecutor honored the plea agreement and
recommended 280 months. Stephen Sype, the community
corrections officer who prepared the presentence investigation
report (PSI), recommended an exceptional sentence of
one and one-half times the high end, 420 months. The
judge indicated he was considering an exceptional sentence
and, although he believed the record before him supported
one, he followed the prosecutor's recommendation to first
hold an evidentiary hearing.
A week later, after hearing from Mr. Sype, Detective
Perez, child Protective Services caseworker Kate Carrow,
the children's therapist Cindy Andrews, and L.R.H., the
judge imposed concurrent exceptional sentences of 480
months. He found several aggravating factors justified
the exceptional sentences: (1) the children were
particularly vulnerable because they were so young and
had no one to turn to because both parents were abusing
them, (2) L.R.H. abused her position of trust to commit
the offenses, (3) there were multiple incidents per child,
(4) the offenses were part of an ongoing pattern of
sexual abuse of each child over a prolonged period,
(5) the offenses caused exceptionally serious emotional
and psychological damage to the children, and (6) the
multiple offense policy of RCW 9.94A.400 results in a
presumptive sentence that is clearly too lenient.
The court concluded:
I think not one of those factors is necessarily more
valuable than any other or weighs more heavily except
that these children were particularly vulnerable being
not only abused by their father, at least with respect
to P.H., but being also abused by their mother with
respect to all three children. And secondly, that the
pain and suffering that these children have experienced
and, quite frankly, perhaps have yet to experience even
to a greater extent [,] causes the Court to conclude
that (L.R.H.] should be sentenced to prison for 40 years,
which I think is 480 months.
L.R.H. appeals the exceptional sentence. Under RCW
9.94A.210(4) this court reviews an exceptional sentence
to determine (1) under the clearly erroneous standard
whether the reasons given by the sentencing court are
factually supported by the record, (2) under the matter
of law standard whether the reasons justify an exceptional
sentence, and (3) under the abuse of discretion standard
whether the sentence is clearly excessive or clearly too
lenient. State v. Nordby, 106 Wash. 2d 514, 517-18,
723 P.2d 1117 (1986); State v. Oxborrow,Wash. 2d 525,
532, 723 P.2d 1123 (1986).
I.
L.R.H. first contends three of the court's reasons are
not supported by the record. She argues (1) the finding
of particular vulnerability is flawed because the court
should not have considered acts outside the period covered
by the charges, namely those from 1987 to 1992, since
she did not admit to them at the time of sentencing;
(2) the record does not support the court's finding that
these children suffered more than other rape victims
since Detective Perez testified the children did not
appear to be distressed about the things that had happened
to them; and (3) the court provided no factual basis for
its finding the multiple offense policy resulted in a
presumptive sentence that is clearly too lenient.
L.R.H.'s arguments are not persuasive. All of the court's
reasons are supported by the record, and the factual
basis for most of them is L.R.H.'s statement to Detective
Perez, which is part of the PSI. Although the PSI reflects
her denial of the statement's contents and its voluntariness,
L.R.H. did not appeal the court's determination the
statement was voluntary and admissible.
(1) Particular vulnerability. Particular vulnerability
due to extreme youth is a statutory aggravating factor,
RCW 9.94A.390(2), that may be used even when an offense
requires that the victim be a child. State v. Fisher,
108 Wash. 2d 419, 425, 739 P.2d 683 (1987) (five-and-one
-half-year-old indecent liberties victim could be
considered particularly vulnerable even though his age
was an element of the crime); State v. Bedker, 74 Wash.
App. 87, 94-95, 871 P.2d 673, review denied, 125 Wash.
2d 1004, 886 P.2d 1133 (1994) (four- to five-year
-old child was particularly vulnerable to child rape even
though his age was an element of the crime). Here,
L.R.H. pleaded guilty to raping M.H. when he was four to
five and again when he was five to six.
She did not object to the information in the PSI,
including her confession that she started raping her two
older children in 1987, when D.H. was four to five and
P.H. was three to four; thus, the court could consider
her statement as well as the facts proved at the sentencing
hearing. RCW 9.94A.370(2). The court's finding is
supported by the record.
(2) Egregious effect. Trauma in excess of that contemplated
by the Legislature or an effect on the victim significantly
more serious than usual may support an exceptional sentence.
State v. overvold, 64 Wash. App. 440, 449, 825 P.2d 729
(1992). The PSI and the psychological reports it incorporates,
together with the testimony of the Child Protective
Services caseworker and the children's therapist, provide
weighty support for the finding the effect of L.R.H.'s
sexual abuse of her children is especially egregious.
The record shows all three children suffer from post-traumatic
stress syndrome and are hypersexualized. D.H. tried to
commit suicide after hearing his parents, voices in his
head, telling him to hang himself.
D.H. and M.H. are both on antidepressant medicine. D.H.
is sexually aggressive and may become an abuser himself,
while P.H. engages in seductive behavior with both men
and women and is likely to be sexually exploited in the
future. M.H. lives in a fantasy world and has regressed,
as evidenced by frequent bed wetting and baby talk.
Sadly, these children have lost not only both parents,
but also each other they have had to be separated because
they engage in sexual acts with one another. The
detective's testimony that these children treated the
constant abuse as a regular part of their lives underscores
how pervasive it was. It does not constitute evidence
that they were unaffected.
(3) Multiple offense policy. The Sentencing Reform Act
of 1981 (SRA) sentencing guidelines themselves provide
the factual basis for the finding that the multiple offense
policy is too lenient. The highest offender score accounted
for by the sentencing grid is nine; thus, sentencing an
offender with a higher current offense score within the
standard range results in crimes for which there is no
penalty. The court could resort to an exceptional
sentence to punish L.R.H. for all eight crimes she
committed. State v. Stephens, 116 Wash. 2d 238, 244,
803 P.2d 319 (1991).
II.
L.R.H. next contends three of the court's reasons do not
justify an exceptional sentence as a matter of law and
two of them actually comprise a single factor. She
argues the court should not have relied on (1) the youth of
the victims because tender age is an element of the
offenses that has already been considered in the
establishment of a presumptive sentence;
(2) abuse of a position of trust because abuse by a
family member is an element of incest, which the Legislature
must consider less serious than child rape given its
lesser punishment; and (3) effect on the victims because
these children did not suffer sufficiently egregious
effects to justify an exceptional sentence. Finally,
L.R.H. argues (4) the court's separate findings that there
were multiple incidents per victim and that the offenses
were part of an ongoing pattern of sexual abuse of each
victim over a prolonged period actually comprise a single
aggravating factor. And though she concedes the record
supports this factor, she argues remand is necessary
given the court's additional reliance on multiple invalid
factors.
All of the court's reasons also justify an exceptional
sentence as a matter of law, although there are in reality
only five.
(1) Victim vulnerability. The court found these children
were particularly vulnerable both because they were so
young and because they had no one to turn to. First
degree rape of a child requires that the victim be less
than 12 years of age. RCW 9A.44.073. Use of a victim's
age as an aggravating factor is not usually warranted
when age is an element of the crime because age is already
factored into the guidelines. But the victim's age may
be used as justification for departure from the guidelines,
even when it is an element of the crime, if the victim's
extreme youth makes the victim more vulnerable than other
victims of the same crime. Fisher, 108 Wash. 2d at 424;
State v. Garibay, 67 Wash. App. 773, 778-79, 841 P.2d 49
(1992). The three - to five-year-old victims here were
all particularly vulnerable due to their youth. Garibay,
67 Wash. App. at 779; State v. Stevens, 58 Wash.
App. 478, 794 P.2d 38, review denied, 115 Wash. 2d
1025, 802 P.2d 128 (1990). Other factors besides youth
may also be considered in determining victim vulnerability.
These children were particularly and uniquely vulnerable
and incapable of resistance against their parents, who
established deviant sexual behavior as a family norm.
See State v. S.H., 75 Wash. App. 1, 10, 877 P.2d 205
(1994), review denied, 125 Wash. 2d 1016 (1995); Bedker,
74 Wash.
(2) Abuse of a position of trust. L.R.H. does not
challenge the court's finding she abused a position of
trust; rather, she argues the fact she was the victims'
mother cannot justify an exceptional sentence. Her only
authority for is novel proposition is a comparison of
the presumptive sentence ranges for first degree child
rape and incest, n2 combined with her assertion that
abuse of position of trust by a family member is inherent
in incest, a less serious crime than rape. But that
simplistic approach is not helpful because the elements
of the two offenses are different and abuse of a position
of trust is t inherent in incest, though it may be present.
[12] A mother's abuse of her children can warrant an
exceptional sentence because abuse of the strong trust
relationship that typically bonds individuals residing
together for an extended time is particularly egregious.
State v. Hamby, 69 Wash. App. 131, 132, 848 P.2d 198
(1993). The fact L.R.H. is the children's mother, whose
job it was to protect them from harm and to nurture their
health and well being, makes her abuse of their trust in
this particular manner especially abhorrent.
(3) Effect on the victims. Particularly severe injuries
may be used to justify an exceptional sentence when they
are greater than contemplated by the legislature in
setting the standard range. State v. Cardenas, 129 Wash.
2d 1, 6, 14 P.2d 57 (1996). The Legislature undoubtedly
recognized that child rape victims could be expected to
suffer some physical and emotional injury, but it could
hardly have contemplated the extreme psychological and
emotional damage inflicted on these children they may
never learn to trust adults and cannot even live together
because they engage in the deviant sexual conduct they
learned from their mother (and father).
(4) Multiple incidents per victim and ongoing pattern of
sexual use of a minor victim over a prolonged time. We
agree this is a single aggravating factor. The real facts
doctrine generally prohibits use of additional, uncharged
crimes as justification for an exceptional sentence, but
an exception exists when it has been shown the defendant
engaged in an ongoing pattern of sexual abuse of a minor
victim over a prolonged time.
RCW 9.94A.370(2); former RCW 9.94A.390(2)(f). Multiple
incidents per victim is the aggravating factor and showing
an ongoing pattern is simply a way of recognizing
additional uncharged incidents. But it is only because
the multiplicity of incidents per victim is not reflected
in the standard sentence range that it may be used to go
outside the range once the factor is taken into account,
it cannot be used a second time by applying a different
label to it. The fact that there are only five distinct
reasons supporting the exceptional sentence, instead of
six, does not necessitate remand, however. The five
reasons provide more than enough justification for the
court's imposition of an exceptional sentence.
III.
Finally, L.R.H. contends the sentence is clearly excessive.
Using insurance industry life expectancy tables
and the fact she was almost 35 when sentenced, she claims
the court's 40-year sentence is, for all practical purposes,
the statutory maximum punishment: life imprisonment.
She argues a maximum sentence should only be imposed in a
"worst case scenario," when the circumstances of the crime
clearly distinguish it from other crimes of the same
statutory category, and asserts this is not such a case.
The court's exceptional sentence is not reversible on the
basis it is equivalent to the statutory maximum based on
life expectancy tables. That approach would reward those
offenders who could hide their crimes the longest and would
treat older offenders more leniently than younger ones on
the basis of age alone. Such an approach is inconsistent
with the proportionality goals of the SRA.
The 480-month sentence is less than double the standard
range midpoint while L.R.H.'s offender score is more than
double the highest offender score covered by the standard
range. We cannot say the sentence is an abuse of discretion
under the circumstances. State v. Ritchie, 126 Wash. 2d 388,
894 P.2d 1308 (1995).
We affirm.
A majority of the panel has determined this opinion will
not be printed in the Washington Appellate Reports,
but it will be filed for public record pursuant to
RCW 2.06.040.
Schultheis, A.C.J.
WE CONCUR:
Munson, J.
Kurtz, J
_________
james
^^^^^^^^^^^^^^^^^ WENATCHEE WORLD ^^^^^^^^^^^^^^^^^^^^^^
Tuesday, May 12, 1998
Witness says she was pressured
By STEPHEN MAHER
World staff writer
SEATTLE -- The daughter of a couple who've had their Wenatchee child
molestation convictions overturned said Monday she was pressured to
implicate her parents, told she was blocking memories of abuse and then
strapped to a gurney and transported to an Idaho psychiatric hospital.
Sarah Doggett, 19, now of Ukiah, Calif., told a King County jury hearing
the Wenatchee sex-abuse lawsuit the events occurred over about a one
week
period in late 1994 and early 1995.
Her parents, Mark and Carol Doggett, were found guilty of molesting her
younger siblings in April 1995. The state Court of Appeals recently
ordered
that the Doggetts be given a new trial. Chelan County has appealed that
decision to the state Supreme Court.
Judge Michael Donohue ruled prior to Doggett's appearance that her
testimony was relevant to the civil trial because it'd provide
information
to jurors about investigative methods allegedly being used in the
community
in 1994 and 1995. At the time, the Doggetts did not know plaintiffs in
the
civil suit, including Pastor Robert "Roby'' Roberson.
Doggett, who is suing government agencies and others in a separate
action,
has never named her parents as perpetrators, although on Monday during
cross-examination she said she knew her younger brother was molesting
her
younger sisters. She testified when one of the sisters informed her of
the
molestation, she attempted suicide because she blamed herself. She
denied
threatening suicide after that.
Dressed in a beige suit, her blond hair touching her shoulders, Doggett
told the jury she was living in northern California with her godmother
when
her parents were arrested on Dec. 28, 1994. Her then 12-year-old sister,
Liz, was visiting her at the time. She said within days city Detective
Bob
Perez and state Child Protective Services caseworker Pat Boggess flew to
Sacramento to talk to the two girls.
Doggett said Perez told the girls they would need to return to Wenatchee
for a week or two until matters were cleared up with their parents.
Doggett
said Perez indicated the two would be placed in the same foster home.
During a layover at Seattle-Tacoma International Airport, while waiting
to
board a flight to Wenatchee, "Perez leaned over to me and said, 'We know
your Dad raped you. Why don't you just admit it?'' said Doggett, adding
she
responded by ignoring him and not saying anything.
When the group landed at Pangborn Memorial Airport, the two girls were
separated. "We were told I'd go with Dean Reiman and Liz would go with
the
other family,'' she said, breaking into tears on the stand. "They'd
promised us we'd be together, and we were holding on to each other. They
were trying to pull us apart and hurting her, and she was screaming. I
was
fighting to keep her with me because I knew if I let her go I wouldn't
see
her again.''
Doggett said she wasn't legally allowed to see her sisters again until
after she turned 18. Within days of returning to Wenatchee, Doggett was
evaluated by therapist Cindy Andrews, who was working for Chelan-Douglas
Mental Health Center at the time. Doggett said Andrews told her her
sisters
were being truthful about her parents, "And that they wanted me to tell
the
truth.'' She said Andrews indicated she was suffering from memory block
and
that hypnotherapy would be the way to solve that.
"She kept saying if I loved my sisters I'd say this,'' said Doggett, who
works today as a cashier at Big 5 Sporting Goods in Ukiah.
Doggett said she asked her foster parents and CPS employees to take her
to
a medical doctor for an exam so she'd prove "I was a virgin.''
"They just said it wasn't necessary; we have the evidence. That's when I
started getting suspicious,'' she said. About a week after her return,
she
was taken to the state Department of Social and Health Services office
in
Wenatchee. She said she was told by CPS workers she was suicidal, had an
extreme eating disorder and needed to be hospitalized. She said they
immediately wheeled in a gurney and strapped her down. A LifeLine
ambulance
then transported her to Pinecrest Psychiatric Facility in Coeur d'Alene,
where she reportedly was given drugs and pressured to make allegations.
"I never agreed to go,'' she said.
==========================================================
Police chief: no memory of memo
By STEPHEN MAHER
World staff writer
SEATTLE -- Wenatchee Police Chief Ken Badgley said in court Monday he
didn't remember whether he ever received an internal memo from a police
sergeant telling him sex-crimes investigator Bob Perez needed help.
Earlier in the Wenatchee child sex-abuse civil trial, Sgt. Mike Magnotti
testified he sent the Feb. 20, 1995, memo to both Badgley and fellow
Sgt.
Cherie Smith after reviewing the sex-abuse investigations. In the memo,
which has been entered as evidence at the trial, Magnotti recommended
another police investigator and a Chelan County prosecutor be assigned
to
aid Perez. Magnotti also said the Wenatchee investigations were becoming
bigger than the famous McMartin cases in Los Angeles.
Plaintiffs in the lawsuit have said the memo is proof the 1994-95
investigations were getting out of hand and authorities should have
known
it was time to put the brakes on them.
Questioned by Robert Van Siclen, the plaintiffs' lead counsel, Badgley
couldn't recall having a conversation with Magnotti about his
recommendations or having the memo come up at a staff meeting. Magnotti
previously testified he never heard back from either Badgley or Smith
after
submitting the memo.
The issue of whether Perez needed help came up later in 1995, however,
Badgley said. It wasn't clear during Badgley's testimony when or how
that
happened.
"I decided he didn't need more help at that time,'' said Badgley, adding
he
could have removed Perez as sex-crimes investigator. "It's my
responsibility as police chief to distribute resources ... (It was my
feeling) that everything was going along in a timely manner.''
Badgley admitted the detective indicated in his 1995 personnel
evaluation
he was so overwhelmed with his work load that he was taking work home
with
him at night.
The chief said there is no Wenatchee Police Department policy requiring
an
officer to keep notes. "Officers' notes are just a brief memory jogger
of
what took place,'' he said. Neither is it department policy to require
interviews be videotaped or audiotaped, he said.
Badgley said he was aware of criticism of the sex investigations. But he
said a checks-and-balances system was in place. And he didn't consider
the
large number of child-rape allegations to be unusual.
"It's uncomfortable to be criticized by the media,'' he said. "(But) You
just don't change the way you're investigating crimes. You don't stop
suspecting certain people because there's some criticism.''
Pressed by Van Siclen about media criticism in 1995, Badgley said there
were only a few reporters who targeted authorities.
"There is still a very small number of people vocal about this. There
were
some concerns, but I don't think the community was divided or inflamed
by
it," Badgley said.
==============================================================
Prism Collective
Hey pat your posting as your son again. "and they say I'm confused!"
:)
Kaitlyn