Stevens County District Court File No. K3-03-17.
Considered and decided by Lansing, Presiding Judge; Willis, Judge; and Hudson, Judge.
When the victim of an assault has suffered from an ongoing cycle of severe and egregious domestic violence at the hands of the defendant, the vulnerability of the victim and the position of power of the abuser are proper grounds for upwardly departing from the presumptive guidelines sentence.
The opinion of the court was delivered by: Hudson, Judge
Appellant challenges the district court's decision to depart upwardly from the 98-month presumptive guidelines sentence to a sentence of 128 months for his first-degree assault conviction. Because we conclude that there were substantial and compelling circumstances to justify the upward durational departure, we affirm.
On January 28, 2003, Erica Boettcher picked up her boyfriend, appellant Chad Rourke, in her van, and Rourke forced Boettcher into the passenger seat and took over operating the vehicle. Boettcher had worked hard to make enough money to afford the van, and Rourke knew how proud she was of it. Rourke began driving recklessly while threatening to kill Boettcher and threatening that she would never see her children again. He sped through a stop sign at approximately 60 miles per hour in a 30-mile-per-hour speed zone and smashed into a pole. Boettcher shattered bones in her ankle, requiring placement of 17 screws and a metal plate in her leg. Her medical expenses exceeded $20,000.
Stevens County charged appellant with assault in the first degree, assault in the second degree, assault in the third degree, criminal damage to property in the first degree, domestic assault, reckless driving, and careless driving. Pursuant to the parties' joint recommendation to the district court, appellant pleaded guilty to the charge of assault in the first degree and agreed to a sentence of 128 months in prison, an upward departure from the presumptive 98-month sentence.*fn1 In exchange, the district court dismissed the lesser charges and the state waived its right to seek a sentencing departure greater than the 128-month sentence. At the plea hearing, appellant admitted that he drove Boettcher's vehicle in a reckless manner and that he did so with the intent of scaring and intimidating Boettcher. Appellant admitted that the collision caused Boettcher great bodily harm.
The pre-sentence investigation report identifies a five-year pattern of ongoing, escalating, violence by appellant toward Boettcher. Boettcher told the investigator that appellant started physically abusing her in 1999. At that time, appellant began controlling whom she associated with; if appellant did not like whom Boettcher was spending time with he would become physically violent. Boettcher stated that when she would try to leave their home, appellant would bite her nose and tell her "if you're going to leave me, you aren't going to be pretty any more." Appellant would kick Boettcher in the stomach and the ribs and would not stop even at the point when she looked "lifeless." The violence and control escalated to the point where appellant would not allow Boettcher to see other people, and appellant threatened that he would kill Boettcher if she reported the violence. In connection with the pre-sentence investigation, appellant even described himself as a "control freak," noting that if Boettcher was someplace he did not want her to be, he would physically pick her up and move her. Appellant admitted that he would often threaten and yell at Boettcher and that he had previously violated a domestic abuse order for protection.
Starting in September 2002, when appellant was released from jail, until the date of the incident in this case, appellant's violence toward Boettcher became even worse. In September, appellant kicked his son and dragged him across the room by his arm. Appellant then began kicking Boettcher, who was pregnant, in the stomach and stated, "I hope the baby dies." Boettcher explained that at times she would wake up in the middle of the night and have appellant's hands around her throat choking her because her shoes were wet, and he thought she might have gone out. Boettcher described instances when, after appellant choked her, her throat would swell and she could barely talk. Boettcher stated that appellant's violence affected her children because they observed the violence and at times watched appellant kick or break their toys. And in fact, when Boettcher returned from the hospital with a cast on her foot following this incident, her children made comments like "Daddy's naughty."
Boettcher acknowledged that for a long time she had "covered up" for appellant, paying his fines, asking the prosecutors to "go easy" on him, and lying for him. Boettcher stated that appellant had previously received treatment for domestic violence, but the classes only taught him how to be more manipulative. Before the assault in this case, Boettcher was planning to move to a domestic-violence shelter because she did not feel she could safely otherwise leave appellant.
Based on this evidence, the court sentenced appellant to 128 months, an upward durational departure from the 98-month presumptive ...