* State Of Washington, Respondent V. Richard Dede Sweat, Appellant

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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON,
Respondent,
v.
RICHARD DEDE SWEAT,
Appellant.
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No. 66836-6-1
DIVISION ONE
PUBLISHED OPINION
FILED: March 18, 2013
GROSSE, J.- The aggravating factor set forth in RCW 9.94A.535(3)(h)(i) that a
defendant has engaged in a pattern of psychological, physical, or sexual abuse "of a
victim or multiple victims manifested by multiple incidents over a prolonged period of
time" does not require proof that the prior incidents of abuse involved the same victim in
the current offense. 	Thus, evidence that the defendant had multiple domestic violence
convictions over a period of 15 years involving different victims was sufficient to support
the trial court's finding that this aggravating factor had been established. 	Accordingly,
we affirm.
FACTS
In 	September 	2010, 	Richard 	Sweat 	began 	dating 	Kellie 	Kenworthy 	and
Kenworthy moved in with Sweat. 	On September 26, 2010, the two had an argument
during which Sweat struck Kenworthy in the eye with his hand. 	She lost consciousness
from the blow and when she awoke could not see out of her left eye for about 30
minutes. 	She was later diagnosed with a fractured orbital socket.
The State charged Sweat with second degree assault - domestic violence. 	The
State also charged as an aggravating factor that Sweat had a pattern of domestic
 	 	 	 	 	 	 	 	 	 	 	 	 	

No. 66836-6-1/ 2
violence against multiple victims. 	Sweat elected to waive his right to a jury trial and
proceed to trial before the court.
The court found him guilty as charged. 	The court also found that the State had
established the aggravating factor of an ongoing pattern of psychological, physical, or
sexual abuse of multiple victims over a prolonged period of time, based on five prior
convictions for offenses involving domestic violence and physical and/or sexual abuse.
The court imposed an exceptional sentence of 84 months' confinement. 	Sweat appeals
his sentence.
ANALYSIS
Sweat contends that his exceptional sentence must be reversed because the
evidence was insufficient to prove the aggravating factor that he had engaged in a
pattern of abuse. 	He asserts that because the prior convictions upon which the court
relied to support this finding did not involve the same victim involved in the charged
offense, the State failed to establish that aggravating factor for his current offense. 	We
disagree.
A trial court may impose a sentence outside of the standard range for an offense
if the 	court finds 	that there 	are 	substantial 	and 	compelling 	reasons 	justifying 	an
exceptional sentence. 1 The legislature has set forth a list of aggravating factors that
may justify an exceptional sentence above the standard range, one of which is a pattern
of domestic violence abuse, as provided in RCW 9.94A.535(3)(h)(i):
(h) The current offense involved domestic violence, as defined in
RCW 10.99.020, and one or more of the following was present:
(i) The offense was part of an ongoing pattern of psychological,
1 RCW 9.94A.535.
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No. 66836-6-1/3
physical, or sexual abuse of a victim or multiple victims manifested by
multiple incidents over a prolonged period of time.
Here, the trial court considered five prior convictions from 1996 to 2006 involving
domestic violence and physical and/or sexual abuse and made the following findings of
fact in support of the aggravating factor:
2. 	In 	1995 the 	defendant 	committed 	the 	crime 	of Assault 	in 	the
Second Degree. 	He was convicted in 1996. 	The victim was Jeanette
Wainer. 	This was not designated as a crime of domestic violence. 	In this
case the Assault in the Second Degree was charged, and the defendants
plead, under the prong that with the intent to commit the crime of rape and
indecent liberties the defendant did assault Jeanette Wainer. 	This is
relevant to show an ongoing pattern of physical, psychological, and sexual
abuse.
3. 	In 1998 the defendant was convicted of Unlawful Imprisonment and
Assault in the Third Degree. 	The victim was Julia Harter. 	While this case
was not specifically designated as a crime of domestic violence, the court
is considering this conviction for the purpose of the aggravating factor.
The Assault in the Third Degree was charged, and the defendant plead,
under the prong that the defendant had caused bodily harm accompanied
by 	substantial 	pain 	that 	extended 	for 	a 	period 	sufficient 	to 	cause
considerable suffering to Julia Harter. 	This is relevant to show an ongoing
pattern of physical, psychological, and sexual abuse.
4. 	The defendant was convicted of Unlawful Imprisonment- Domestic
Violence and Assault in the Fourth Degree - 	Domestic Violence in 2005.
The 	defendant 	was 	ordered 	to 	participate 	in 	a 	Domestic 	Violence
perpetrator treatment program. 	The victim of that crime was Angelique
Montes.
5. 	The defendant was convicted of felony Riot - 	Domestic Violence
and Assault in the Fourth Degree - 	Domestic Violence in 2006. 	The
victim of the crimes was Nina Northington.
6. 	In 2006 the defendant was convicted of felony Riot - 	Domestic
Violence. The victim was Cheryl Mainer.
7. 	The defendant's first offense considered by the court occurred in
1995. 	The most recent event occurred September 26, 2010. 	This is a
prolonged period of time.
8. 	Each of the six separate convictions involved distinct victims. 	Each
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No. 66836-6-1/ 4
conviction also involved physical, psychological and or sexual abuse. 	The
six separate incidents constitute multiple incidents. 	Together the events
show a pattern of ongoing physical, psychological and or sexual abuse.
Sweat contends that this aggravating factor is limited to circumstances where the
current offense is part of an ongoing pattern of abuse of the same victim and that the
State failed to establish this by relying on incidents involving victims other than the one
involved in the current offense. 	He relies on the definition of "victim" in the Sentencing
Reform Act of 1981, which provides: "'Victim' means any person who has sustained
emotional, psychological, physical, or financial injury to person or property as a direct
result of the crime charged."2
We review issues of statutory construction de novo. 3 While Sweat contends that
the definition of "victim" contemplates only those who suffered injury from the charged
crime, the statute read as a whole indicates otherwise. 	RCW 9.94A.030 provides that
the definitions in this section apply throughout the chapter, "[u]nless the context clearly
requires otherwise." 	Here, the context does otherwise require: the statute contemplates
abuse 	that was 	not the 	direct 	result 	of the 	charged 	crime 	by 	referring 	to 	abuse
"manifested by multiple incidents over a prolonged period of time," and stating that the
current offense was "part of an ongoing pattern" of abuse.4 The legislative history also
makes abundantly clear that the intent of the statute was to address the serial domestic
violence 	offender and 	consider additional victims who 	suffered 	past abuse by the
2 RCW 9.94A.030(53).
3 State v. Lilyblad, 163 Wn.2d 1, 6, 177 P.3d 686 (2008). 	If the plain words of a statute
are unambiguous, the court need not inquire further. 	State v. Gonzalez, 168 Wn.2d
256, 263, 226 P.3d 131 (2010). But if the language is ambiguous, the rule of lenity
applies and requires the statute to be interpreted in the defendant's favor unless there is
legislative intent to the contrary. 	State v. Jacobs, 154 Wn.2d 596, 601, 115 P.3d 281
12005).
RCW 9.94A.535(3)(h)(i) (emphasis added).
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No. 66836-6-1 I 5
offender.5 As set forth 	above in the trial court's findings, 	the evidence here was
sufficient to support a finding of this aggravating factor.
We affirm the judgment and sentence.
WE CONCUR:
'
5 As the State notes, Attorney General Rob McKenna's proposed legislation to increase
sentencing for repeat felony domestic violence offenders included an aggravating factor
for 	serial 	domestic violence 	batterers 	with 	different victims, 	which 	was 	ultimately
adopted as the "multiple victims" language in the statute. The Senate Bill Report also
evidences an intent to modify the aggravating factor "so that it applies in situations with
different 	victims," 	and 	testimony 	before 	the 	Senate 	Judiciary 	Committee 	urged
punishment for the chronic and serial offender because it was not available under the
old version of the aggravating factor that was limited to a single victim. 	S.B. REP. on
S.B. 5208, at 3-4, 61st Leg., Reg. Sess. (Wash. 2009).
5