State Of Washington, Respondent V. Jeffrey A. Trebilcock & Rebecca L. Trebilcock, Appellants (Majority)

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r` F isJ `' fi v JUri( 4 IN THE COURT OF APPEALS OF THE STATE OF i c ' :' i 2014 NO 2 5 RIII DIVISION II STAT OF No. 43930 -1 - II STATE OF WASHINGTON, By Respondent, v. JEFFREY ALLEN TREBILCOCK, Consolidated with Appellant. No. 43950 -6 -II STATE OF WASHINGTON, Respondent, v. PUBLISHED IN PART OPINION REBECCA TREBILCOCK, Appellant. MELNICK, J. — Jeffrey and Rebecca Trebilcock appeal their bench trial convictions and sentences for criminal mistreatment in the first degree of J. T. and criminal mistreatment in the third degree of A.T. We reject Rebecca' s' arguments that her sentence violates due process because the trial judge relied on his own personal religious preferences when sentencing her, her exceptional sentence violates her Sixth and Fourteenth Amendment rights to a jury determination of aggravating factors, and her exceptional sentence improperly relies on impermissible factors. In the unpublished portion of this opinion, we reject the Trebilcocks' other arguments except for Jeffrey' s individual argument that the trial court improperly imposed substance abuse treatment To avoid confusion, we refer to Jeffrey and Rebecca Trebilcock by their first names and intend no disrespect. 19 TON 43930 -1 - II / 43950 -6 -II as part of his sentence. We remand for the trial court to strike the substance abuse treatment from Jeffrey' s sentence. We otherwise affirm the Trebilcocks' convictions and sentences. FACTS The Trebilcocks lived in 2004, began adopting in 1997, and rural Cowlitz County. They have four biological sons and in The Trebilcocks first children. A.T., born in 1999. adopted two biological J. T., born siblings: Subsequently, the Trebilcocks adopted three more children: N.T., born in 1999, T.T., born in 2001, and G.T., born in 2002. J. T., N.T., Trebilcocks. The A.T. and and A.T. would also altogether if they did food to Trebilcocks experienced severe neglect and abuse while living with the children were not allowed occasionally A.T. J. T. steal and from be forced to not complete survive, put an eat the try different foods. The Trebilcocks would make 3B Report pig trough." eat outdoors their from bread alarm in a " to in the cold. fruit to kitchen to dog prevent the Proceedings ( RP) at 646. J. T. The children would be denied food chores or schoolwork. and of food, On occasion, they would have to goat children food, and toothpaste. from stealing food. The When the Trebilcocks caught the children stealing food, they would spank the children with a wooden paddle. J. T. in particular spent a great deal of time outside doing chores barefoot. In order to ensure that he did not get the carpet dirty, he had to have his feet checked before he entered the house. At times J.T. would stand outside in the cold for hours, waiting for someone to check his he back inside. The Trebilcocks made J. T. wash his clothes outside in a bucket feet so and hang them to dry. Sometimes his clothes would not dry and he had to wear wet clothing. could go J.T. also had to wash his bed sheets in the bucket outside, and if the sheets did not dry, he had to sleep without sheets. He was frequently cold at night. 2 43930 -1 - II / 43950 -6 -II The Trebilcocks' actions affected gravely J. T.' s health and development. Between the ages of six and thirteen, J.T. lost weight, going from a " slightly above average" weight to less than the third that J. T. " 2011, J. T. did 6B RP percentile. not was have anything brought to at 1358. close to As early as 2008, medical professionals recognized normal growth a pediatric clinic in a " for his nearly dead" 6B RP age." 6B RP state. 1321. In March 1368. J. T. could at at not walk without stumbling. He was trembling and had significant hypothermia. He had a heart rate equivalent to one of an unconscious child' s. He weighed 49 pounds, stood 50 inches tall, had a concave stomach, and looked malnourished. His muscles were wasting and his bones were visible. doctors He suffered agreed from that J. T. untreated appeared eczema which very thin and small had bacterial for his age— overgrowth. Two different although he was then 13 years old, J. T. looked closer to 6 to 7 years old. Dr. Danielle Parrot determined that J. T. was in critical condition and sent him to the emergency room of the local hospital. There, the medical staff stabilized J. T. and then transferred him to the pediatric intensive care unit (ICU) at Doernbecher Children' s Hospital. At the ICU, Dr. Thomas Valvano, a pediatrician and the medical director of the Suspected Child Abuse and Neglect Program, examined J. T. and found him to be " cachectic, just very malnourished, no subcutaneous fat, very thin." 6A RP at 1125. Dr. Valvano found J. T.' s case unusual and troubling because ordinarily, J.T. would be expected to remain in the same percentile range for his entire life. Yet after he moved in with the Trebilcocks, J. T.' s weight and height dropped from the fiftieth percentile to the third percentile in comparison to other boys his age. Dr. Valvano discovered no medical reasons for J. T.' s cachectic state and believed malnourishment caused fact that J. T. J. T.' s condition. gained weight and Dr. Valvano bolstered his medical analysis with the thrived after he ate a normal diet in the hospital over a period of 43930 -1 - II / 43950 -6 -II eight days. Based on Dr. Valvano' s review of J. T.' s records, his examination of J. T., and J. T.' s progress and improvement at the hospital, Dr. Valvano opined to a reasonable medical certainty that improper exposure to cold weather caused J. T.' s hypothermic state and that not being given enough food to eat caused J. T.' s malnourishment. The day J. T.' after hospitalization, s Child Protective Services ( CPS) opened an investigation into the Trebilcocks. The Trebilcocks' four adopted daughters appeared frightened and very thin when CPS visited. According to Jeffrey, the girls were on a special vegan diet and were not allowed to have any sweets. Rebecca refused CPS' s ,request to have the four adopted girls see a doctor. CPS soon Stephanie Frost placed picked this unusual based on the her J. T. and girls the four up, they girls were very into their custody. When CPS supervisor withdrawn and would eight years of experience. not talk. Frost found CPS barred the Trebilcocks from visiting J. T. at the hospital. J. T. began a dramatic recovery once CPS removed him from the Trebilcocks' care. In the 16 months after he moved out of the Trebilcocks' home, J. T. grew seven and a half inches and more than doubled conditions at his weight, the Trebilcocks' gaining 64 had caused pounds. his Dr. Blaine Tolby opined that J. T.' s living poor growth. Dr. Tolby testified J. T. suffered incredible harm and that he " would place the severity of this particular case, as being the worst case of chronic abuse and neglect" that he had seen in his 37 years of being a physician. 7A RP at 1463. Similarly, A.T. suffered a precipitous loss of weight while in the Trebilcocks' care, and began to recover once Trebilcocks, A.T. was CPS removed her from the Trebilcocks' slightly heavier than average. 4 care. Before she lived with the Yet at the time she was removed from the 43930 -1 - I1 / 43950 -6 -II Trebilcocks' and stood ounces percentile. the twelve year care, She 51 inches tall. also " lost old - A.T. appeared thin and weighed only 51 pounds, 12 That put her body mass index ( BMI) at 14, below the third some relative 6B RP height." at 1370. Andrea Street, a registered dietician, testified that A.T. remained underweight even three weeks after being removed from the Trebilcocks' care. 5 RP at 1021. In less than three months of foster care, A.T. grew to 70. 4 pounds and 52.25 inches, at the tenth percentile for weight and height. Dr. Kenneth Wu opined that A.T.' s low intake of food likely caused her low weight and BMI. PROCEDURAL HISTORY On May 24, 2011, mistreatment against right jury to trials. the State charged the Trebilcocks with five counts of criminal their five adopted children. On June 15, Jeffrey and Rebecca waived their Both signed written waivers and the trial court conducted a colloquy with both to ensure they each understood their rights and were voluntarily waiving their right to jury trials. Jeffrey' s trial attorney stated that the Trebilcocks' decision to waive a jury trial had been discussed over a period of several months. The State twice amended the information, charging the Trebilcocks on July 23 with 13 counts of domestic violence criminal mistreatment against their five adopted children with four aggravating factors. After mistreatment a bench trial, the trial court found Jeffrey and Rebecca guilty of criminal in the first degree with domestic violence of J. T. ( count 1) and criminal mistreatment in the third degree with domestic violence of A.T ( count 3) and acquitted Jeffrey and Rebecca of the remaining counts. The court also found two aggravating factors pertaining to count 1: first, the crime involved domestic violence that was part of an ongoing pattern of psychological and physical abuse, and second, the Trebilcocks used their position of trust, 5 43930 -1 - II / 43950 -6 -II fiduciary confidence, or responsibility to commit the crime. At the sentencing hearing, the trial court commented on Rebecca' s testimony about her biblical convictions on diet and contrasted Rebecca' s conduct with " the importance of safeguarding and protecting children in our society and keeping from harm them and offense." 11 RP at 2729 -30. The court then referenced a biblical quote: This is the phrase that some of you may be familiar with: " Which one of you, if his son asks him for bread, will he give them a stone, or if he asks [ sic] a fish, will he give him serpent ?" Your children asked for bread and for reasons which baffle, literally baffle the bulk of society, you gave them a stone. 11 RP at 2730. The trial court sentenced Jeffrey to a standard range sentence of 60 months on count 1 and 364 days on count 3, to be served The trial court also ordered Jeffrey to consecutively. undergo treatment and evaluation for substance abuse as a condition of his misdemeanor criminal mistreatment in the third degree conviction. Based on the two aggravating factors, the trial court sentenced Rebecca to an exceptional sentence above the standard range and found that the for the aggravating grounds circumstances " taken together or considered individually, constitute sufficient cause to impose the exceptional sentence" of 96 months on count 1 and 364 days on count 3, to be served consecutively. CP ( filed at COA Oct. 9, 2013) at 10. Both Jeffrey and Rebecca appeal. ANALYSIS SENTENCE NOT BASED ON THE TRIAL COURT' S RELIGIOUS BELIEFS I. Rebecca first argues the trial judge violated her Fourteenth Amendment2 right to due process by considering his own religious beliefs in setting the length of her sentence, and thus 2" No state shall ... U. S. CONST. amend. deprive any person of life, liberty, or property, without due process of law." XIV, § 1. 6 43930 -1 - II / 43950 -6 -II her sentence must be vacated and her case remanded for resentencing before a different judge. This is an issue of first impression in Washington State. Because the trial judge did not inject his own personal religious beliefs into sentencing or sentence Rebecca based solely on those beliefs, we hold no constitutional violation occurred and we affirm Rebecca' s sentence. The sentencing process must satisfy the requirements of due Florida, 430 U. S. 349, 358, 97 S. Ct. 1197, 51 L. Ed. 2d 393 ( 1977). process. Gardner v. We review constitutional challenges de novo. State v. Vance, 168 Wn.2d 754, 759, 230 P. 3d 1055 ( 2010). Federal case law prohibits a judge from making his own " personal religious principles" the explicit of a sentencing decision. United States v. Bakker, 925 F. 2d 728, 741 ( 4th Cir. In Bakker, when sentencing a well -known televangelist for mail and wire fraud, the 1991). district basis court said, " He had no thought whatever about his victims and those of us who do have a religion are ridiculed as emphasis added). being saps from money grubbing preachers or priests." 925 F.2d at 740 The court held that this statement was error because a judge' s religious beliefs are irrelevant for sentencing purposes, and therefore due process is violated when a judge impermissibly takes his own religious characteristics into account in sentencing." 925 F. 2d at 740. On the other hand, numerous federal courts agree that it is not reversible error for a court to use religious language to express a secular concept. In Gordon v. Vose, 879 F. Supp. 179, 184 D. R.I. 1995), the state than he is willing to sentencing give." court referred Supp. at 185. a biblical verse: " no man should take more The district court affirmed because the sentencing court did not express a personal religious preference or one commits a serious crime, to he bias, but merely must expect to articulated a secular principle: " receive a severe punishment." that if Gordon, 879 F. 43930 -1 - II / 43950 -6 -II In United States referred Paul v. Traxler, 477 F. 3d 1243, 1248 ( 10th Cir. 2007), the court explicitly to the biblical letters in jail was put a couple of Paul, stating, "[ G] ood things thousand years ago and wrote a can come bunch of from jail. A guy named letters from jail ... and people are still reading those letters and being encouraged by them and finding hope in them thousands of years later." The court rejected the defendant' s due process challenge, concluding the judge' s comments in no way suggested Traxler needed a longer sentence to " pay religious penance." secular Traxler, 477 F. 3d. message: " at 1249. that something Instead, the religious reference was meant to convey a good can come from difficult .circumstances, even jail." Traxler, 477 F. 3d at 1249. In Arnett v. Jackson, 393 F. 3d 681, 683 ( 6th Cir. 2005), the Sixth Circuit similarly affirmed where the trial court merely referenced religion in order to convey a secular principle. There, the trial court quoted two verses from the Bible when sentencing the defendant on numerous counts of rape of a minor. The Sixth Circuit held that the trial court' s comments did not violate Arnett' s due process rights because the sentencing judge made no reference to her own religious beliefs; instead, one plausible interpretation of the Biblical quotation was that it underscored " young that our society has a long history of sternly punishing those people who hurt children." Arnett, 393 F. 3d at 687. The Sixth Circuit held that although reasonable minds could question the sentencing court' s mentioning the Bible, the sentencing court properly considered numerous aggravating and mitigating factors. Arnett, 393 F.3d at 687. Similarly, numerous state supreme courts have affirmed sentences where the judge' s religious comments merely acknowledge generally accepted principles rather than basing sentences on highly personal religious beliefs. See, e.g., State v. Arnett, 88 Ohio St. 3d 208, 22122, 724 N.E. 2d 793 ( Ohio 2000) ( upholding sentence because biblical reference was not the sole 8 43930 -1 - II / 43950 -6 -II basis for the sentences, but was one of many factors the trial judge Md. 523, 533, 671 A. 2d 501 ( Md. 1996) ( upholding considered); sentence when Poe v. State, 341 sentencing judge said, " I still believe in good old- fashioned law and order, the Bible, and a lot of things that people say I t believe shouldn' anymore" prior to sentencing); Gordon v. State, 639 A.2d 56, 56 ( R.I. 1994) upholding sentence when sentencing judge referred to the Bible by saying that " no man takes more than he' s willing to People for sodomy sentence upholding give "); when v. Halm, 81 N.Y.2d 819, 820, 611 N.E. 2d 281 ( 1993) sentencing judge referred to " Biblical times" and expressed his opinion about the seriousness of the crime). Here, during sentencing, the trial judge referenced a biblical quote when he stated: At trial, Mrs. Trebilcock testified about being biblically convicted about proper eating and diet. This may be familiar to phrasing —and the reason I make some —this mention of this is because I really think it' s important to mention and underscore the importance of safeguarding and protecting children in our society and keeping them from harm and offense. This is the phrase that some of you may be familiar with: " Which one of you, if his son asks him for bread, will he give them a stone, if he or asks a fish, will he give him serpent ?" Your children asked for bread and, for reasons which baffle, literally baffle the bulk of society, you gave them a stone. at merely underscores a secular principle: " RP at 2729 -30. Like the biblical references in Gordon v. Vose and Traxler, this reference 11 RP 2729. safeguarding and protecting children in our society." 11 And as in Arnett v. Jackson and State v. Arnett, the biblical reference constituted only one of many factors the sentencing judge considered in imposing Rebecca' s sentence. Here, the trial court relied on the fact that the children were left " damaged, sick, and, in the case ongoing pounds of [ J. T.], abuse. in nearly dead." 11 RP at 2728. The trial court relied on the length of the The trial court relied on evidence at trial that the children only gained " seven seven years" and that "[ t] here was rationing, there was withholding, there was even 9 43930 -1 - II / 43950 -6 -II the dramatic step the condition of the setting up motion alarms to prevent the children from eating." 11 RP at The trial court relied on the fact that Rebecca had ample opportunity to observe the 2729. ribs." of 11 RP totality at of children and have noticed that J. T. was in distress " from five broken The record makes it amply clear that the trial court based its sentence on 2731. the should facts and the severity of the Trebilcocks' " woefully derelict and shamefully deficient" caretaking. 11 RP at 2729. Further, the trial court made the biblical reference in response to the Trebilcocks introducing the issue and of religion biblical authority into the proceedings. Specifically, Rebecca testified that she felt " biblically convicted" to follow a limited and vegan diet for herself and the children. 10A RP at 2348. We hold that the trial court did not inject his own personal religious beliefs into the sentencing hearing and that the court did not violate Rebecca' s due process rights. II. REBECCA' S SENTENCE DID NOT VIOLATE SIXTH AND FOURTEENTH AMENDMENT RIGHTS Rebecca also argues that her exceptional sentence violated her Sixth and Fourteenth Amendment rights to a jury determination of aggravating factors. Specifically, Rebecca argues that because she waived her jury trial right before the State amended the information to add the aggravating factors, her waiver applied only to a finding of guilt on the charges and not to a determination of the aggravating factors. We disagree. Because Rebecca validly waived her right to a jury trial,3 acquiesced to the trial court determining the aggravating factors, and never attempted to revoke her waiver, we affirm her exceptional sentence. A criminal defendant has the right to have a jury decide any aggravating factor that supports an exceptional sentence. Blakely v. Washington, 542 U.S. 296, 302, 124 S. Ct. 2531, 3 Rebecca' s jury trial waiver is discussed in more detail in the unpublished .portion of this opinion. 10 43930 -1 - II / 43950 -6 -II A 159 L. Ed. 2d 403. ( 2004). Hughes, 154 Wn. 2d 118, criminal 133 - 34, defendant, however, may 110 P. 3d 192 ( 2005) ( citing that waive Blakely, right. State v. 542 U. S. at 310), abrogated on other grounds by Washington v. Recuenco, 548 U.S. 212, 126 S. Ct. 2546, 165 L. The filing of an amended information, standing alone, does not render a Ed. 2d 466 ( 2006). defendant' s waiver of a right P. 3d 446 ( 2006) ( upholding filed). Instead, ineffective. waiver of counsel that occurred prior to amended information being look to the we See State v. Modica, 136 Wn. App. 434, 445 -46, 149 specific facts of the A] record sufficiently demonstrates a case. "[ waiver of the right to trial by jury if the record includes either a written waiver signed by the defendant, a expression personal State acquiescence." v. by the Cham, 165 Wn. defendant App. of intent to an waive, or an informed 438, 448, 267 P. 3d 528 ( 2011) ( citing State v. Stegall, 124 Wn.2d 719, 729, 881 P. 2d 979 ( 1994); State v. Wicke, 91 Wn.2d 638, 641 -42, 591 P. 2d 452 ( 1979)). The State bears the burden of establishing a valid waiver, and absent a record to the contrary, indulge every at 447. We we review de novo reasonable presumption against waiver. the sufficiency of the record to Cham, 165 Wn. App. establish a valid waiver. Cham, 165 Wn. App. at 447. The record here amply demonstrates that Rebecca wanted to waive a jury for all including determining purposes, occurred before the information the aggravating was amended to factors add alleged, the aggravating even though her waiver factors. Defense counsel stated at the beginning of trial ( prior to the amended information) that the decision to waive a jury had been record and that that discussed she understood she she was decision." over a period of months 1 RP had the right " to opting instead to have " at 61. between the have any ... parties. Rebecca indicated on the case heard by twelve of [her] peers" a single person, a judge, hearing the case, making a Rebecca never moved to rescind her jury waiver or request a jury, even 11 43930 -1 - II / 43950 -6 -II when the State amended the information to add the aggravating factors. Instead, multiple times during trial, counsel stated that Rebecca understood and agreed that the trial judge would be deciding the aggravating factors. Specifically, when addressing an evidentiary objection, counsel admitted that certain evidence was admissible and would be considered by the trial court when go considering the aggravating factors. to the trial court' s determination of In closing, counsel stated that certain evidence might the aggravating factors. All of these facts demonstrate a knowing, intelligent, and voluntary waiver of the jury to determine guilt and aggravating factors. They also establish Rebecca' s informed acquiescence. See Cham, 165 Wn. App. at 449. When the trial court found that two of the four alleged aggravating factors had been proven, Rebecca did not object to the trial court deciding the aggravating factors. At sentencing, defense counsel commented on the trial court' s broad discretion for sentencing because of the aggravating factors the court found. Counsel also commented on the significant community interest and pretrial publicity in the Trebilcocks' case as a primary reason for waiving the jury. In other words, Rebecca' s decision to waive a jury was a counseled, knowing, and voluntary strategic decision that Rebecca agreed to even after the State amended the information. Rebecca' s valid jury waiver at the beginning of the trial, as well as her informed acquiescence to her counsel' s unchallenged statements, overcame any presumption that Rebecca did not make a knowing, intelligent, and voluntary waiver. Rebecca knew the role of the jury, made a strategic decision to waive the jury, and stood by her decision throughout proceedings. As such, she waived her right to have a jury determine whether the State proved aggravating factors beyond a reasonable doubt. We hold Rebecca' s exceptional sentence does not violate her Sixth and Fourteenth Amendment rights to a jury determination of aggravating factors, and we affirm her exceptional sentence. 12 43930 -1 - II / 43950 -6 -II REBECCA' S EXCEPTIONAL SENTENCE BASED ON PERMISSIBLE FACTORS III. Rebecca next argues the trial court erred when it found the two aggravating factors and based exceptional an sentence on those factors. First, Rebecca argues that the abuse of trust aggravator does not apply because it applies only to crimes of intentional conduct, and because abuse of trust is inherently a part of the underlying crime of criminal mistreatment in the first Second, Rebecca argues that the ongoing pattern aggravating factor does not apply degree. because it applies only to domestic violence crimes, and because the ongoing pattern factor is inherently the trial a part of court the underlying crime of criminal mistreatment properly found the ongoing pattern in the first degree. aggravating factor. We hold Because the trial court found that either aggravating factor alone would have been sufficient grounds to impose the we affirm Rebecca' s exceptional sentence without reaching her abuse of trust sentence, argument. The State charged Rebecca with the aggravating factor which requires that the " current offense involved domestic violence, as defined in RCW 10. 99. 020, ... and ... [ t] he offense was part of an ongoing pattern of psychological, physical, or sexual abuse of a victim or multiple manifested victims 10. 99. 020, domestic committed argues by that one by multiple violence " family or because the incidents includes but is household statute does a prolonged period not limited to" a over list member against another." ( not specifically list of 4 time. " Under RCW of specific offenses " when Emphasis criminal added.). mistreatment, Rebecca criminal mistreatment is not domestic violence and therefore the aggravator does not apply to the crime of criminal mistreatment in the first degree. indicates that the list is " not We reject her argument because the statute plainly limited to" the enumerated crimes. 4 RCW 9. 94A.535( 3)( h)(i) 13 In addition, the unchallenged 43930 -1 - II / 43950 -6 -II findings of him harm. fact are that Rebecca committed a crime against J. T., a family member, and caused Accordingly, the trial court properly concluded that the criminal mistreatment in the first degree involved domestic violence. Rebecca next criminal mistreatment argues that the " ongoing pattern" in the first degree. Appellant' guilty of criminal mistreatment bodily harm to a child ... by in the first degree, "[ withholding any of s( of abuse aggravating factor inheres in Rebecca) Br. at 21. a] parent of a child" the basic necessities of We disagree. To be must " cause[ ] great life." RCW 9A.42. 020. To find the ongoing pattern aggravating factor, the fact finder must find that the abuse occurred over a " prolonged period of time." RCW 9. 94A. 535( 3)( h)( i). Rebecca argues that the offense of criminal mistreatment in the first degree necessarily " requires an ongoing pattern, manifested by multiple ` incidents' over a prolonged period of time" and thus the ongoing pattern is already part of the criminal mistreatment disagree. " Criminal time." State v. in the first degree conviction. mistreatment can occur over a Rotko, 116 Wn. App. Appellant' few days or ... s( Rebecca) Br. at 21. We over a much longer period of Criminal mistreatment in 230, 245, 67 P. 3d 1098 ( 2003). the first degree does not inherently imply an ongoing pattern, and thus we hold the trial court did not err when relying on the ongoing pattern aggravating factor when giving an exceptional sentence. Rebecca also challenges the abuse of trust aggravating factor, but we do not reach that challenge. The trial court stated in its findings of fact and conclusions of law for an exceptional that the aggravating factors, " sentence sufficient cause sentence if only 2013) 10. at to impose the one of the taken together or considered individually, constitute exceptional grounds sentence," and listed in the preceding that it paragraph would " is valid." impose the same CP ( filed Oct. 9, Because the " ongoing pattern of abuse" aggravating factor was established, the trial 14 43930 -1 - II / 43950 -6 -II court would have imposed the same "sentence whether or not the abuse of trust aggravating factor applied. As a matter of law, the trial court did not rely on impermissible factors when imposing an exceptional sentence. We hold that the trial court did not interject his personal religious beliefs into the sentencing hearing, that Rebecca' s sentence did not violate her Sixth and Fourteenth Amendment rights to a jury determination of aggravating factors, and that permissible factors exist to uphold Rebecca' s exceptional sentence. We address the Trebilcocks' remaining arguments in the unpublished portion of this opinion. 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 this section, we reject the Trebilcocks' joint arguments that their convictions violate their constitutional right to an independent determination of the facts because their convictions were based in part on impermissible opinion testimony; that their jury trial waivers were invalid; and that their criminal mistreatment in the third degree conviction should be reversed for insufficient evidence. We also decide Jeffrey' s individual argument that the trial court improperly imposed substance abuse treatment as part of his sentence. I. OPINION TESTIMONY PROPERLY ADMITTED The Trebilcocks both argue that their convictions were based on an impermissible expert opinion on their guilt, which violated their constitutional right to a jury trial. The State argues the Trebilcocks failed to object to the challenged testimony at trial and thus did not preserve this issue for appeal. Although Jeffrey and Rebecca objected generally to expert testimony giving an opinion on abuse, they did not specifically object 15 to the statement they now challenge. Because 43930 -1 - II / 43950 -6 -II the challenged testimony did not provide an improper opinion on guilt, the Trebilcocks do not raise a manifest constitutional error and we will not review this issue. We will not review an argument raised for the first time on appeal unless the challenging party demonstrates a manifest constitutional error. RAP 2. 5( a)( 3). To satisfy RAP 2. 5( a)( 3), an appellant first must identify a constitutional error and then demonstrate how the alleged error his affected if it is manifest Wn.2d rights at so obvious on practical and O' Hara, 167 Wn.2d 91, 98, 217 P. 3d 756 ( 2009). An error is v. the record that the error requires appellate review. O' Hara, 167 The defendant must show actual prejudice, meaning the alleged error had 99 -100. at State trial. identifiable consequences at trial. State v. Gordon, 172 Wn.2d 671, 676, 260 P. 3d 884 ( 2011). Under ER 704, an expert may not testify about a defendant' s guilt, either directly or by State inference. v. Olmedo, 112 Wn. undermines opinion defendant' s a jury' s constitutional App. 525, 530, 49 P. 3d 960 ( 2002). " independent determination right to a trial by jury." of the facts, Olmedo, 112 Wn. Such an improper and may invade the App. at 530 -31. 5 An expert's opinion, however, is not objectionable " simply because it embraces an ultimate issue the fact trier of also ER 704. "` [ decide." must State v. Hayward, 152 Wn. App. 632, 649, 217 P. 3d 354 ( 2009); see T] hat an opinion encompassing ultimate factual issues supports the conclusion that the defendant is guilty does not make the testimony an improper opinion of guilt. ' Hayward, 152 Wn. App. at 649 ( quoting City of Seattle v. Heatley, 70 Wn. App. 573, 579, 854 P. 2d 658 ( 1993)). A trial court' s decision to admit expert testimony is reviewed for abuse of discretion. State v. Kirkman, 159 Wn.2d 918, 927, 155 P. 3d 125 ( 2007). 5 Although the Trebilcocks had does not a distinguish between jury bench trial, " the and constitutional guaranty of an impartial trial bench trials." State v. Read, 147 Wn.2d-238, 249, 53 P. 3d 26 ( 2002) ( emphasis in original). 16 43930 -1 - II / 43950 -6 -II Here, Dr. Tolby, one of the State' s expertmedical witnesses, testified that that he " would place the severity of this particular case, as being the worst case of chronic abuse and neglect" that he had seen in his 37 years of being a physician: 7A RP at 1463. Although Dr. Tolby' s testimony touched on an ultimate legal issue, the cause of J. T.' s condition, Dr. Tolby' s testimony did not include any opinion regarding Jeffrey' s and Rebecca' s guilt, but rather simply stated his medical opinion that J. T.' s condition occurred because of abuse and neglect. Additionally, "' in the absence of evidence to the contrary, we presume the judge in a bench trial does not consider inadmissible Wn.2d 851, 855, 321 P. 3d 1178 ( 2014) ( 2002)). evidence in rendering a verdict. ' State v. Gower, 179 quoting State v. Read, 147 Wn.2d 238, 242, 53 P. 3d 26 This " presumption arises because of the ` unique demands' bench trials place on judges, requiring them to sit as quoting Read, Wn.2d Tolby' s testimony both at except arbiters of 242). to law and as finders of fact. ' Gower, 179 Wn.2d at 855 Indeed, the trial court' s findings of fact do not reference Dr. note that the " growth charts and medical findings related to the expected growth" were credible. CP ( filed May 28, 2013) at 29. Dr. Tolby' s expert testimony did not amount to an opinion on Jeffrey' s and Rebecca' s guilt; therefore, Dr. Tolby' s testimony did not constitute manifest constitutional error. II. DEFENDANTS CAN WAIVE A JURY TRIAL The Trebilcocks next argue that under article I, section 21 of the Washington State Constitution, 6 a criminal defendant may never waive a jury trial for a felony charge. 6 Article I, section 21 provides: The right of trial by jury shall remain inviolate, but the legislature may provide for a jury of any number less than twelve in courts not of record, and for a verdict by nine or more jurors in civil cases in any court of record and for waiving of the jury in civil cases where the consent of the parties interested is given thereto. 17 The 43930 -1 - II / 43950 -6 -II Trebilcocks must argue be tried to a factors " that the six Gunwall jury, regardless of the parties' suggest[ ] wishes." that all felony cases in Washington Appellant' s ( Rebecca) Br. at 27. The Trebilcocks' argument is inconsistent with our decision in State v. Benitez, 175 Wn. how the right in question 126 -27 ( quoting State v. may be at Gunwall is inapplicable. waived, ' Pierce, 134 Wn. in Benitez that " Washington law App. Because Gunwall " addresses ` the extent of a right and not 116, 126, 302 P. 3d 877 ( 2013). App. allows 127 ( citing Stegall, 124 Wn.2d at App. a Benitez, 175 Wn. App. at 763, 773, 142 P. 3d 610 ( 2006)). defendant to waive a jury trial." We further held Benitez, 175 Wn. 723. We reject the Trebilcocks' argument. THE TREBILCOCKS KNOWINGLY, VOLUNTARILY, AND INTELLIGENTLY WAIVED THEIR III. RIGHT TO A JURY TRIAL The Trebilcocks next argue that even if the right to a jury trial may be waived, their jury trial waivers The Trebilcocks contend that because the Washington State invalid. were constitutional right to a jury trial is broader than the federal right, a Gunwall analysis must be used to determine whether more extensive protections are required to waive the right. The Trebilcocks recognize that we rejected the same argument in Pierce, 134 Wn. App. 763, but argue that Pierce same argument was wrongly decided in Benitez and do so and that again. we should overturn it here. We rejected this Further, because Jeffrey and Rebecca knowingly, intelligently, and voluntarily waived their rights to a jury trial, we hold their waivers were valid. We 239, 165 review a jury trial P. 3d 391 ( 2007). waiver de novo. State v. Ramirez- Dominguez, 140 Wn. App. 233, The sufficiency of the record to satisfy the constitutional requirements for waiver of the fundamental right to a jury trial may be raised for the first time on appeal. State v. Wicke, 91 Wn. 2d 638, 644, 591 P. 2d 452 ( 1979). establish that the defendant 134 Wn. App. at 771. waived his right The record must adequately knowingly, intelligently, and voluntarily. Pierce, A written waiver " is strong evidence that the defendant validly waived the 18 43930 -1 - II / 43950 -6 -II jury trial is waiver knowing, citing State does Pierce, 134 Wn. right." intelligent, App. and at voluntary is Woo Won Choi, 55 Wn. v. an not require extensive An attorney' s representation that the defendants 771. colloquy App. on also relevant. Pierce, 134 Wn. App. at 771 895, 904, 781 P. 2d 505 ( 1989)). the record; Washington law instead " only a personal expression of waiver from the defendant" is required. Pierce, 134 Wn. App. at 771 ( citing Stegall, 124 Wn.2d at As a result, the right to a jury trial is easier to waive than other constitutional rights. 725). Pierce, 134 Wn. App. at 772 ( citing State v. Brand, 55 Wn. App. 780, 786, 780 P.2d 894 1989)). Here, Jeffrey and Rebecca were informed that they had the right to have their case heard by an impartial jury, that they could take part in the jury selection process, and that in a jury trial the State would have to convince twelve citizens of their guilt beyond a reasonable doubt, whereas in a bench trial the State had to convince only the judge of their guilt beyond a reasonable doubt. Both Jeffrey and Rebecca signed written jury waivers stating that they understood the rights they were giving up, that they had consulted with an attorney regarding their decisions, and that they were voluntarily giving up their right to be tried by a jury. In a colloquy with the trial court, Jeffrey and Rebecca also confirmed that they wished to waive their right a to jury a jury trial. trial. Jeffrey' s attorney also stated that Jeffrey and Rebecca " signed the waiver of It was, after being discussed over a period of months now, been decided that this is how both Parties want to proceed." 1 RP at 60. The Trebilcocks argue that they were insufficiently apprised of their rights because their written waiver did not make clear that they understood they were entitled to a fair and impartial jury or that the jury would be instructed on the presumption of innocence. But Washington courts have " not required that a defendant be apprised of every aspect of the jury trial right in 19 43930 -1 - II / 43950 -6 -II order Wn. be for the defendant' s App. at innocent impartial trier waiving the 772). of right to be Benitez, 175 Wn. App. at 129 ( citing Pierce, 134 valid." Further, the Trebilcocks were " not required to be informed of `[their] right to 773). presumed waiver proven until guilty beyond fact because these to a jury trial." rights are a reasonable inherent in all doubt trials' or [ their] right to an and are not waived by Benitez, 175 Wn. App at 129 ( quoting Pierce, 134 Wn. App. at Accordingly, we hold that both Rebecca and Jeffrey made knowing, intelligent, and voluntary waivers of their right to a trial by jury. IV. SUFFICIENT EVIDENCE SUPPORTS THE THIRD TREBILCOCKS' DEGREE CRIMINAL MISTREATMENT CONVICTION The Trebilcocks next argue that the evidence is insufficient to support their convictions for criminal mistreatment in the third degree of A.T because there was insufficient evidence of substantial Rebecca bodily harm. caused A.T. We disagree and hold there is sufficient evidence that Jeffrey and substantial bodily harm and affirm Jeffrey' s and Rebecca' s criminal mistreatment in the third degree convictions. To determine whether sufficient evidence supports a conviction, we view the evidence in the light most favorable to the prosecution and determine whether any rational fact finder could have found the elements of the 102, 105, 330 P. 3d 182 ( 2014). crime beyond a reasonable doubt. State v. Homan, 181 Wn.2d Specifically, following a bench trial, appellate review is limited to determining whether substantial evidence supports the findings of fact and, if so, whether the findings support the conclusions of law. Homan, 181 Wn.2d at 105 -06. " Substantial evidence" is evidence sufficient to persuade a fair minded person of the truth of the asserted premise. Homan, 181 Wn.2d supported by at 106. We treat unchallenged findings of facts and findings of fact substantial evidence as verities on appeal. Homan, 181 Wn.2d at 106. challenges to a trial court's conclusions of law de novo. Homan, 181 Wn.2d at 106. 20 We review 43930 -1 - II / 43950 -6 -II Findings of Fact A. Here, the Trebilcocks only challenge finding of fact 34 that states: For a period of approximately seven years, the defendants also withheld food, a life, from A.T. of necessity The defendants used food as a punishment and for A.T., and would intentionally withhold food from her if she was As a result of this withholding, A.T. suffered substantial bodily injury, to include very low body weight and growth stunting, and she was also reward disobedient. placed at imminent and substantial risk of substantial bodily harm. CP ( filed May 28, 2013) 31. at Because this finding of fact is supported by substantial evidence, we reject their argument. The evidence at trial supported a finding that the Trebilcocks withheld food from A.T. in order to A.T. testified that both Jeffrey and Rebecca withheld food if she had not her. punish completed her chores or schoolwork, that she was frequently hungry even after eating, and that the Trebilcocks rarely gave her more food if she asked for more. A.T. testified that sometimes the Trebilcocks made her eat outside and that she was cold because she did not have a coat on. Furthermore, the evidence at trial supported a finding that as a result of this withholding, A.T. suffered substantial bodily injury and was put at imminent and substantial risk of substantial bodily harm. Substantial bodily harm means " bodily injury which involves a temporary but substantial disfigurement, or which causes a temporary but substantial loss or impairment of the function of any bodily part or organ, or which causes a fracture of any bodily part." RCW The State' s medical evidence demonstrated that A.T. was below the third 9A.04. 110( 4)( b). percentile for height and weight when she was removed from the Trebilcocks' home and that her condition put her malnourished as 6B RP at at A.T. 1372. a greater risk for infection was, a routine " minor and disease. Specifically, for a child as gastroenterology issue ... may result in [ ] death." This evidence was sufficient to persuade a fair- minded person that the Trebilcocks' withholding of food put A.T. at severe risk and impaired her ability to grow and 21 43930 -1 - II / 43950 -6 -II live a We hold that finding of fact 34 is supported by substantial evidence and is normal life. thus binding on appeal. B. Conclusions of Law The Trebilcocks challenge conclusion of law 5, which states that the elements of criminal mistreatment in the third degree were proved beyond a reasonable doubt. We disagree and affirm the trial court. A person is guilty of criminal mistreatment in the third degree if the person is the parent of a child ... and either: ( a) With criminal negligence, creates an imminent and substantial risk of substantial bodily harm to a child or dependent person by withholding any of the basic necessities of life; or ( b) With criminal negligence, causes substantial bodily harm to a child or dependent person by withholding any of the basic necessities of life. RCW 9A. 42. 035. A person " acts with criminal negligence when he or she fails to be aware of a substantial risk that a wrongful act may occur and his or her 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." RCW 9A. 08. 010( 1)( d). We hold that the findings of fact support a conclusion that the Trebilcocks were guilty of criminal mistreatment in the third degree. Unchallenged findings of fact 28 and 29 show that the Trebilcocks were A.T.' s parents. Unchallenged finding of fact 35 establishes that the Trebilcocks acted with criminal negligence. Finding of fact 34, which is supported by substantial evidence, establishes that the Trebilcocks caused substantial bodily harm to A.T. and put her at imminent and substantial risk of substantial bodily harm by withholding basic necessities of life. fact support conclusion of law 5 and we affirm. 22 Accordingly, we hold that the findings of 43930 -1 - II / 43950 -6 -II V. ERROR TO IMPOSE SUBSTANCE ABUSE TREATMENT AS PART OF JEFFREY' S PROBATION Jeffrey further argues the trial court erred by imposing substance abuse treatment as a condition of his probation for his criminal mistreatment in the third degree conviction. The State concedes this argument and agrees the court imposed the condition in error; it was " most likely a scrivener' s error." Resp' t' s Br. at 32. We accept the State' s concession and remand for the trial court to strike the substance abuse treatment from Jeffrey' s sentence. While the trial court has broad discretion to impose probationary conditions on misdemeanors and gross misdemeanors, those conditions must be reasonably related to the crime. State v. Hall, 35 Wn. App. 302, 308, 666 P. 2d 930 ( 1983). Here, the record fails to indicate that Jeffrey abused any substance or that substance abuse was related to the charges. We hold that the State' s concession is proper and we remand for a correction of Jeffrey' s judgment and sentence. VI. SAG ISSUES Jeffrey raises several issues in his statement of additional grounds ( SAG). Although a defendant is not required to cite to the record or authority in his SAG, he must still " inform the court of record the nature and occurrence of [the] to find support for the defendant' alleged errors," s claims. and we are not required to search the RAP 10. 10( c). Because Jeffrey does not provide support for his alleged errors, we do not reach his claims. A. Delays Jeffrey argues that his case was delayed for two years. However, the record does not show that Jeffrey asserted his right to a speedy trial prior to trial, and thus Jeffrey is not entitled to relief. 23 43930 -1 - II / 43950 -6 -II Lack of Time with Lawyer B. Jeffrey argues that his lawyer did not spend enough time on his case. The record does not indicate how much time Jeffrey' s lawyer spent working on his case. Matters outside of the record must be raised in a personal restraint petition. See State v. McFarland, 127 Wn.2d 322, 335, 338 n.5, 899 P. 2d 1251 ( 1995). Outside - - ourt Conduct of C C. Jeffrey argues that his lawyer had casual social contact with the judge and the prosecuting attorney. This information is not a part of the record and must be raised in a personal restraint petition. See McFarland, 127 Wn.2d at 338 n.5. Jeffrey also complains of CPS' s conduct outside of court, such as getting him fired from Similarly, Jeffrey complains that the media released his personal information and that he his job. received death threats from unidentified persons. Jeffrey complains that as a result of the media coverage of his case, he was refused service in a store. Jeffrey complains that the detectives told his family and friends that they would " put[ ] [ the Trebilcocks] away for a long time." SAG at 5. Jeffrey complains that a person named Sue Barr " said a lot of un true [ sic] stuff' on television. SAG at 3. This information is not a part of the record, and even if it were, we cannot provide a remedy for the actions of third parties outside of court. D. Credibility Arguments Jeffrey argues that Dr. Tolby, Dr. Wu, and unspecified persons who were " involved with these too [ sic] children when they were tooking [ sic] from the blood mother" were biased and gave false testimony. SAG at 3. Jeffrey further argues that the children' s case worker, Tina Day, lied. But we do not review weight or credibility issues Wn.2d 60, 71, 794 P. 2d 850 ( 1990). 24 on appeal. State v. Camarillo, 115 43930 -1 - II / 43950 -6 -II E. Bifurcated Trial Jeffrey argues that he wanted to be tried alone, rather than jointly with his wife. The record does not indicate that Jeffrey ever moved for a separate trial, and thus Jeffrey is not entitled to relief. F. Jury Trial Jeffrey argues that he wanted a trial by jury. We have already addressed and rejected this argument above. We remand for the trial court to strike the substance abuse treatment from Jeffrey' s sentence. We otherwise affirm the Trebilcocks' convictions and sentences. We concur: 25

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