Washington v. Creekmore11/6/1989
Wash. 2d 507, 517, 656 P.2d 1056 (1983)). Payne and Holland are distinguishable because, here, the record is replete with evidence that Creekmore had no sympathy for Eli before or after his death. Eli came out of his bedroom and said he had "pooped" his pants; Creekmore asked why, and Eli responded, "Because you kicked me in the stomach." Creekmore yelled, "That's not true, and if you want me to make it true, I'll make it true." He then approached Eli
with his leg lifted as if to kick him. In the bathroom, Eli urinated on the floor, perhaps out of fear; Creekmore responded by getting a belt and whipping him. As Eli was crying, Creekmore said he would continue to whip Eli as long as he wanted to cry, which Eli did until the beating stopped. Eli said he had to poop again, and Creekmore came out of the bathroom saying Eli "fell" in the toilet. The trial court had every reason to believe that Eli was "thrown," and that he did not fall into the toilet, since Creekmore asserted minutes earlier that he did not even kick Eli. Creekmore prevented Eli's mother from coming to his aid, saying Eli would stay in the toilet until he could get himself out. All the while, Eli was vomiting on himself with his bare bottom in the water and his arms and legs hanging over the rim of the toilet. Eli's mother eventually freed him, but Creekmore refused to let her take him to a hospital. Medical testimony established that Eli must have been in pain, and in fact Eli moaned for hours in bed. Creekmore told Eli to shut up, forcing him to contain his moaning, but Eli continued; he also vomited for several hours until he died. Creekmore administered CPR, but the record supports the inference that he was motivated by self-interest rather than concern for Eli. Even after he knew Eli was dead, he refused to let even Eli's mother cry.
The trial court's reasons, far from being "clearly erroneous", are supported by the record.
The Reasons Justify an Exceptional Sentence.
The first and second reasons are well-established aggravating factors. See RCW 9.94A.390(2)(b) ("victim . . . particularly vulnerable . . . due to extreme youth"); State v. Fisher, 108 Wash. 2d 419, 739 P.2d 683 (1987) (5 1/2-year-old victim of indecent liberties); State v. Armstrong, 106 Wash. 2d 547, 550, 723 P.2d 1111 (1986) ("defenseless 10-month-old child"; multiple injuries).
The third and fourth reasons are also well established. See State v. Fisher, at 426-27 (abuse of trust); State v. Harp, 43 Wash. App. 340, 342-43, 717 P.2d 282 (1986) (caretaker used position of trust to molest children); State v.
Ratliff, 46 Wash. App. 466, 470, 731 P.2d 1114 (1987) (no remorse).
Creekmore argues that the third reason, abuse of trust, was "necessarily considered in computing the presumptive range for the offense." Nordby, 106 Wash. 2d at 518. Criminal mistreatment, he notes, presumes a breach of parental or custodial trust. However, second degree felony murder was sufficiently established by the assault which resulted in Eli's death. State v. Crutchfield, 53 Wash. App. 916, 922-23, 771 P.2d 746 (1989), which holds that one cannot use a relationship of trust to facilitate a crime of recklessness, is distinguisable, because Creekmore acted with knowledge. By convicting Creekmore of felony murder based on second degree assault, the jury specifically found that he knowingly inflicted grie
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