COURT

# OFAPPEALS DIVISION II 2015 FEB 18 

### AM 9: 16 STAT O ;_ 1GTON BY 

### IN THE COURT OF APPEALS OF THE STATE OF WASHING

STATE OF WASHINGTON,

v. JEFFREY W. WELLER, DIVISION II

Respondent,

Appellant. STATE OF WASHINGTON,

v. SANDRA D. WELLER, Respondent,

Appellant. Consolidated Nos. 44726 - 6 -1I 44733 -9 -11

PART PUBLISHED OPINION

MAXA, J. — 

### Jeffrey Weller and SandraWeller appeal their multiple convictions for various degrees of assault and unlawful imprisonment, as well as their exceptional sentences. The convictions arose from their abuse oftheir 16-year - old twins, which included multiple beatings with a board and food deprivation. The Welters argue that the trial court erred in failing to suppress the board that officers seized from the Welters' garage and that their exceptional 

### sentences are invalid because their convictions could have been based on accomplice liability. 

### We hold thatthe trial court did not err in failing to suppress the board that officers seized from the Welters' garage because the community caretaking function and plain view exceptionsConsol. Nos. 44726 - 641 / 44733 -9 -II 

### to the warrant requirement were applicable. We also hold that the deliberate cruelty aggravating factor was valid to supportthe trial court' s exceptional sentence but the ongoing pattern ofabuse 

### aggravating factorwas not. Because the record does not reveal whether the trial court would have imposed the same exceptional sentences based only on the deliberate cruelty aggravating factor,we must remand for resentencing. In the unpublished portion ofthis opinion we address and reject the Wellers' additional arguments regarding their convictions and sentences. 

### Accordingly, we affirm the Wellers' convictions, but we remand to the trial courtfor resentencing. FACTS Report ofAbuse

Sandra and Jeffrey Weller had six children in their care and under their custody: 16 -yearold twins (CW, a 

### boy and CG, a girl) adopted 

### by Sandra2 and her former husband, two of 

### Jeffrey's biological children,one ofSandra's biological children, and one biological child of 

### Sandra and Jeffreytogether. In early October 2011, the twins lefttheirtherapist a note reporting abuse fromtheirparents, stating thattheywere fearful and asking for help. The therapist made a 

### mandatory report to Child Protective Services (CPS). On October 7, CPS investigator Margie Dunn visited the Weller residence and after 

### interviewing Jeffrey and Sandra, assessed that CW and CG were unsafe. Dunn leftthe Weller residence for safety reasons and called in the assistance ofthe Vancouver Police Department.
1 Since CW and CG were minors at the time ofthe commission ofthe crimes, we use their 

### initials to identifythem. 2 We use the defendants' first names where appropriate to avoid confusion. 2Consol. Nos. 44726 - 6 -I1 / 44733 -9 -11
Welfare Check Officers Jensen and Aldridge and four other officers arrived at the Weller residence to conduct a welfare check. The officers believed their purpose was to evaluate the Weller home 

### environment and the twins' credibility to determine whetherthe children should be removed and placed into protective custody.3 One ofthe officers knocked on the front door and explained to Sandra that the purpose oftheir visit was to perform awelfare check on the children. The 

### officers did not have a search warrant. Officer Aldridge asked ifthey could come inside and speak with Sandra and the children. Sandra stepped back from the door and the officers entered the house. 

### The officers attempted to talk privately with the twins. OfficerJensen and CW talked in one room. Officer Aldridge and CG talked in another room, and ultimately moved into the 

### garage for greaterprivacy. Both children described being beaten repeatedlywith aboard. Discovery ofthe Board 

### Both officers and the twins ultimatelywent together into the garage to talk. The only 

### purpose in going to the garage was for privacy. CG and CW started to look around forthe board, although not at the officers' direction. 

### Officer Aldridge was standing in the same place as when she entered the garage when she 

### looked around and saw a board leaning against the garage wall in plain view. She asked the children ifthatwas the board used to beat them, and they replied that it was. Officers Jensen and



### 3 RCW 26.44.050 gives law enforcement responding for awelfare check the statutory authority to determine whether or not children should be removed from their home environment into protective custody.Consol. Nos. 44726 - 6 -II /44733 -9 -II Aldridge both reported thatthe board was in a position where they could clearly see it from 

### where they were standing. Officer Jensen picked up the board, and both officers observed the board had a long groove in it as well as discoloration that appeared to be consistent with dried blood. Officer Aldridge estimated that atthat time the officers had been atthe Weller residence 

### for 20 minutes and she testified that they "had no ideathat this was heading toward a criminal investigation." J. Weller Report of Proceedings ( RP) (Jan. 31, 2013) at 185. Criminal Charges.

Based on her observations, Officer Aldridge decided to remove the twins and the other children from the Weller residence. After speaking with the children, the State filed multiple 

### charges againstthe Wellers, including several charges ofsecond, third, and fourth degree assault, and several counts of unlawful imprisonment. The record is unclear on whether each was charged as both a principal and an accomplice. For most ofthe charges, the State alleged that 

### each defendant' s conduct manifested deliberate cruelty to the victims and was part ofan ongoing pattern of abuse. Motion to Suppress the Board 

### The Wellers moved to suppress the board, arguing that it was seized during an unlawful search oftheir residence without awarrant. They argued that the emergency aid exception to the 

### warrant requirement was inapplicable because there was no immediate threat ofinjuryto any persons and that entry into the house was a pretext for a search for evidence ofa crime. The State responded that the officers' warrantless entry into the Weller residence wasjustified both by Sandra' s consent and law enforcement' s community caretaking function, and that the seizure ofthe board from the Weller garage was justified under the plain view doctrine.
4Consol. Nos. 44726 - 6 -II / 44733 -9 -II 

### At the suppression hearing, Jeffrey assumed that the emergency aid exception applied, but argued that at the time the board was found the officers were conducting a criminal investigation rather than a welfare check. Sandra also argued that law enforcement had begun a 

### criminal investigation bythe time the officers had spotted the board in the Weller garage. The trial court denied the motion to suppress, concluding in a detailed oral ruling that the officers lawfully were in the garage under the community caretaking exception and thatthey were authorized to seize the board because it was in plain view. The trial court did not enter written 

### findings offact or conclusions oflaw following the suppression hearing. Convictions and Sentences 

### The case proceeded to ajury trial. Thejury found Jeffrey guilty on most counts and the trial court sentenced him for five counts of second degree assault, one count of unlawful imprisonment, one count ofthird degree assault of a child, and two counts of fourth degree 

### assault.4 Thejury also found Sandra guilty on most counts and the trial court sentenced herfor four counts ofsecond degree assault and one count of unlawful imprisonment.5 For all of 

### Jeffrey's and Sandra's convictions,thejury returned a special verdict form answering yes to the questions " Did the defendant' s conduct during the commission ofthe crime manifest deliberate cruelty to the victim ?"and "Was the crime part ofan ongoing pattern ofpsychological or



### 4 Several ofthe additional counts Sandra and Jeffreywere convicted ofwere dismissed because they merged into the other convictions. 

### 5 Sandra's appellate briefcontends in its statement offacts that Sandrawas convicted by complicity for her four counts ofsecond degree assault. Thejury verdicts do not state this.
5Consol. Nos. 44726 - 6 -11 / 44733 -9 -II 

### physical abuse ofthe victim manifested by multiple incidents over a prolonged period oftime ?',' J. Weller Clerk' s Papers (CP) at 151; S. Weller CP at 106.

The trial court imposed exceptional sentences of240 months confinement for both 

### Sandra and Jeffrey. Both ofthe exceptional sentences were based on thejury's findings thatthe Wellers' conduct manifested deliberate crueltyto the victims and occurred as part ofan ongoing pattern of abuse. Jeffrey and Sandra appeal their convictions and their exceptional sentences. ANALYSIS A. WARRANTLESS SEIZURE OF THE BOARD

The Wellers argue that the officers seized the board used to beat CW and CG in an 

### unlawful warrantless search oftheir garage, and therefore thatthe trial court erred in denying their CrR 3. 6 motion to suppress the board. We disagree, and hold that the trial court did not err 

### when it concluded that (1) the officers' entry into the garage to privately interviewthe children was lawful underthe community caretaking function exception to the warrant requirement, and 2) the seizure ofthe board was lawful under the plain view exception to the warrant requirement.

1. Legal Principles Both the Fourth Amendment to the United States Constitution and article I, section 7 of the Washington State Constitution prohibit warrantless searches and seizures unless one ofthe narrow exceptions to the warrant requirement applies. State v. Garvin, 166 Wn.2d 242, 249, 207 P. 3d 1266 ( 2009). 

### The State bears the burden ofdemonstrating that awarrantless search or

6Consol. Nos. 44726 - 6 -II / 44733 -9 -I1 seizure falls within an exception to the warrant requirement. State v. Duncan, 146 Wn.2d 166, 172, 43 P. 3d 513 ( 2002). 

### The community caretaking function exception to the warrant requirement arises from law

enforcement officers' community caretaking function and involves two aspects: officers 

### rendering aid or assistance (emergency aid exception) ormaking routine checks on health and safety (health and safety check exception). State v. Schultz, 170 Wn.2d 746, 754, 248 P. 3d 484 2011); State v. Thompson, 151 Wn.2d 793, 802, 92 P. 3d 228 ( 2004); 

### State v. Kinzy, 141 Wn.2d 373, 386, 5 P. 3d 668 ( 2000). Another exception to the warrant requirement is the plain view 

### exception,which allows officers to seize an object ifthey are lawfully present in a 

### constitutionally protected area andthe object is in plain view.6 State v. Hudson, 124 Wn.2d 107, 114, 874 P. 2d 160 ( 1994). 

### When reviewing the denial ofa suppression motion, we determine whether substantial evidence supports the trial court' s findings offact and whether the findings support the conclusions of law. Garvin, 166 Wn.2d at 249. We review de novo the trial court' s conclusions 

### oflaw pertaining to the suppression ofevidence. Id. Specifically, whether an exception to the warrant requirement applies is a question of law that we review de novo. See id.

6 Another exception is consent. State v. Ferrier, 136 Wn.2d 103, 111, 960 P.2d 927 ( 1998). But the State does not argue that the Wellers' consented to the officers' entry into their garage by 

### opening the door and allowing them to come in to their house. And mere acquiescence when officers enter a home does not constitute consent. Schultz, 170 Wn.2d at 757, 759.
7Consol. Nos. 44726 - 6 -II /44733 -9 -II

2. Failure to Enter Written Findings and Conclusions 

### Sandra initially arguesthatthetrial court erred byfailing to enterwritten findings offact and conclusion oflaw supporting its CrR 3.6 ruling. Although failure to enterfindings offact and conclusions of law is error, such error is harmless ifthe trial court' s oral findings are 

### sufficientto permit appellate review. See State v. Bluehorse, 159 Wn.App. 410, 423, 248 P.3d 537 (2011). 

### Here, the trial court provided a detailed oral ruling that included numerous oral factual 

### findings regarding the officers' conduct andthe events leading upto the seizure, and legal conclusions regarding the applicability ofexceptions to the warrant requirement. As a result,we hold that the trial court' s oral findings and conclusions are sufficient to permit appellate review.

3. Community Caretaking Function Exception 

### The Wellers argue that the trial court erred in reaching a legal conclusion thatthe officers' presence in the Wellers' garage was lawful underthe community caretaking function exception to the warrant requirement. We disagree.

7 The State also argues that in oral argument ofthe CrR 3. 6 suppression motion, the Wellers 

### abandoned any arguments that (1) the emergency aid exception to the warrant requirement did 

### notjustifythe officers' initial entry into their house, and (2) the plain view doctrine does not apply. As a result,the State claims thatthe Wellers are precluded from making these arguments on appeal. We disagree. The Wellers did argue below in Jeffrey' s written motion (although not 

### at oral argument) thatthe emergency aid exception was inapplicable, and the court ruled on that 

### issue as well as the plain view issue. Accordingly, we hold thatthe Wellers did notwaive their arguments on these issues. 8Consol. Nos. 44726 - 6 -II / 44733 -9 -1I

a. Two Aspects of Community Caretaking 

### Our Supreme Court has recognized a " community caretaking function" exception to the

warrant requirement. Thompson, 151 Wn.2d at 802; 

### Kinzy, 141 Wn.2d at 386. " This exception allows forthe limited invasion ofconstitutionally protected privacy rights when it is necessary for police officers to render aid or assistance or when making routine checks on health and safety." Thompson, 151 Wn.2d at 802. As noted in Thompson, there are two aspects to the community caretaking function: ( 1) the emergency aid exception, Schultz, 170 Wn.2d at 754, and (2) the health and safety check exception. 8 Kinzy, 141 Wn.2d at 387. The emergency aid 

### exception involves greater urgency and allows searches resulting in a greater intrusion. Id.at 386. 

### A search pursuant to the community caretaking function exception must be totally divorced from a criminal investigation. Id. at 385. The exception does not apply where an 

### officer's primary motivation is to search for evidence or make an arrest. State v. Williams, 148 

### Wn.App. 678, 683, 201 P.3d 371 ( 2009). Both the State and the Wellers focus on the emergency aid exception to the warrant requirement, butthe trial court' s oral ruling also could be interpreted as applying the more



### 8 The cases have been less than clear aboutwhether the community caretaking function exception and the emergency aid exception are synonymous or separate. However, Kinzy makes it clearthat the community caretaking function exception involves both emergency aid and routine health and safety checks. 141 Wn.2d at 386 -87. And our Supreme Court more recently noted that the emergency aid exception is a " subset" ofthe community caretaking exception. State v. Smith, 177 Wn.2d 533, 541, 303 P. 3d 1047 (2013). 9Consol. Nos. 44726 - 6 -II /44733 -9 -II

general exception for routine health and safety checks. Because we decide this issue based on 

### the health and safety check aspect exception as discussed below,we do not address the emergency aid exception.

b. 

### Health and Safety Check Exception 

### To invoke the health and safety check exception,the State must showthat (1) the officer subjectively believed someone needed health or safety assistance, (2) a reasonable person in the same situation would believe that there was a need for assistance, and (3) there was a reasonable basis to associate the need for assistance with the place searched. 1 ° Thompson, 151 Wn.2d at 802. Next, the.State must show that the encounter under this exception was reasonable, which 

### depends upon a balancing ofthe individual' s interest in freedom from police interference against the public' s interest in having the police perform a community caretaking function. Thompson, 151 Wn.2d at 802. " 

### When weighing the public' s interest, this [c]ourt must cautiously applythe community caretaking function exception because ofthe potential for abuse." Kinzy, 141 Wn.2d at 391. Here, the three requirements for application ofthe health and safety check exception 

### clearlywere satisfied. The officers subjectively and reasonably believed that the Weller children 

### needed health or safety assistance. A trained CPS investigator relayed to the officers her


### 9 The trial court ruled that the officers' search ofthe Wellers' garage was lawful because they were within the scope oftheir community caretaking function at the time. The trial court stated 

### that the community caretaking function also was referred to as the " Health and Safety Emergency," which seems to merge the two separate exceptions. J. Weller RP ( Feb. 1, 2013) at 287. 

### 10 These also arethe firstthree parts ofthe test for application ofthe emergency aid exception, which also includes three additional requirements. Schultz, 170 Wn.2d at 754 - 761. 10Consol. Nos. 44726 - 6 -1I / 44733 -9 -II 

### professional opinion thatthe Weller children were not safe and were expressing severe fear. And the officers had a reasonable basis to associate the need for assistance with the Wellers'

residence —

the CPS official told them that the children were in the residence. Further, based on 

### this information,the balancing process shows that the officers' initial entrance into the Weller residence wasjustified because the public' s interest in having the officers perform a welfare check on the children outweighed the Wellers' privacy interests in the foyer oftheir residence. See Thompson, 151 Wn.2d at 802. Once the officers moved into other rooms ofthe residence and ultimately to the garage, the Wellers' privacy interests became more significant — 

### entering a residence' s garage is more 

### intrusive than entering the foyer. However,the trial court expressly found that the officers had no pretextual purpose in entering the residence, that at all times they were engaged in the 

### community caretaking function. These findings are supported bythe evidence, which shows that the officers' only purpose in entering the Wellers' residence and latertheir garage was to carry out their community caretaking.function. Specifically, the evidence shows that the officers were 

### in the garage because they were trying to find aprivate place to interview the children in conjunction with theirwelfare check. Further, the trial court found that the officers simply
ended up in the garage." J. Weller RP (Feb. 1, 2013) at 288. Nothing in the record suggests 

### thatthe officers weresearching the garage or looking for evidence. 

### The trial court did not expressly state that it engaged in the balancing process required for application ofthe health and welfare check exception. Nevertheless, the trial court' s factual 

### findings support the conclusion that underthe circumstances ofthis case, the officers' entry into 

### the garage in orderto properly conducttheirwelfare check outweighed the Wellers' privacy
11Consol. Nos. 44726 - 6 -II / 44733 -9 -II interest in their garage. Accordingly, we affirm the trial court' s application ofthe community 

### caretaking function to the officers' entrance into the Wellers' residence and garage. 4. Plain View Doctrine The " plain view" exception to the warrant requirement applies when officers ( 1) have a 

### validjustification for being in a constitutionally protected area, and (2) are immediately able to realize that an item they can see in plain view is associated with criminal activity. State v. Hatchie, 161 Wn.2d 390, 395, 166 P.3d 698 (2007). 

### The test for determining when an item is immediately apparent for purposes ofa plain view seizure is whether, considering the 

### surrounding circumstances, the police can reasonably conclude that the item is incriminating evidence. Hudson, 124 Wn.2d at 118. Officers do not need to be certain that the item is
associated with criminal activity — probable cause is sufficient. See id. 

### Here, we hold thatthe officers were lawfully present in the Wellers' garage. Further,the 

### surrounding facts and circumstances allowedthe officers to reasonably concludethatthe board was evidence ofa crime. The officers initially arrived atthe scene where they were informed of the twins' CPS report,which alleged frequent beatings with a potentially bloody board. As the welfare check progressed, both twins reported separately to each officer that Jeffrey would 

### periodically beatthem with a board. Further,when the officers were in the garage, the children began to look forthe board. And the children immediately confirmed that the board Officer Aldridge saw was in fact the board used to beat them. The trial court did not enter any specific factual findings regarding plain view. However, these facts support the conclusion that the officers could have reasonably concluded after 

### listening to the twins' reports thatthe board OfficerAldridge saw in the garage was the board
12Consol. Nos. 44726 - 6 -II /44733 -9 -I1 

### used to beat the children and therefore was incriminating evidence. As a result,we hold thatthe plain view exception to the warrant requirement applied to the officers' seizure ofthe board. We affirm the trial court' s denial ofthe Wellers' motion to exclude the board. B. EXCEPTIONAL SENTENCES 

### The Wellers argue the trial court erroneously imposed their exceptional sentences 

### because thejury did not expressly find thatthe deliberate cruelty and ongoing pattern ofabuse 

### aggravating factors were based on principal liability as opposed to accomplice liability. We hold thatthe deliberate cruelty aggravating factor was avalid basis forthe trial court' s imposition of the exceptional sentences, butthe ongoing pattern ofabuse aggravating factor was not. Because we cannot determine from the record whether the trial court would have imposed the same 

### exceptional sentences based on only the deliberate cruelty aggravating factor,we must remand for resentencing. 11

1. Deliberate Cruelty Aggravating Factor 

### In order forthe trial courtto impose an exceptional sentence, the aggravating factor 

### supporting the exceptional sentence generally must be based onthe defendant's own conduct. State v. Hayes, No. 89742 - 5, 2015 WL 481023, at * 2 ( Wash. Feb. 5, 2015). As a result, an 

### aggravating factor cannot be applied to an accomplice unless the accomplice' s own conduct or knowledge ofthe principle' s conduct informs the aggravating factor. Id.
11 The Wellers also argue that their exceptional sentences were based in part onjudicial fact 

### finding,whichviolated their Sixth Amendmentjurytrial right. We disagree. Here, thejury — and not the trial court — found the two aggravating factors. And the trial court expressly relied on those findings in imposing the exceptional sentences. Although the trial court ruled that the 

### jury's findings were supported by the evidence, it properlywas evaluating the evidence supporting thejury's findings before imposing the exceptional sentences. 13Consol. Nos. 44726 - 6 -I1 / 44733 -9 -1I 

### The Wellers argue thatthis rule applies to the deliberate cruelty aggravating factor because the trial court' s instructions allowed thejuryto convict each ofthem as an accomplice. 

### However, here there is no possibilitythat thejuryfound the aggravating factorfor one ofthe Wellers based on the conduct ofthe other. Instead, for each charge ofeach defendant thejury

was asked, " 

### Did the defendant's conduct during the commission ofthe crime manifest deliberate cruelty to the victim ?" E.g., J. Weller CP at 151; S. Weller CP at 106 ( emphasis added). And 

### for each count thejury answered in the affirmative. Therefore, the trial court's imposition ofan exceptional sentence based on the deliberate cruelty aggravating factor was based on Jeffrey' s and Sandra' s own conduct, regardless ofwhether their convictions were based on accomplice liability. 

### We hold thatthe deliberate cruelty aggravating factorwas avalid basis forthe trial court' s imposition ofthe Wellers' exceptional sentences.

2. 

### Ongoing Pattern ofAbuse Aggravating Factor 

### Unlike the deliberate cruelty aggravating factor, thejury' s finding ofthe ongoing pattern 

### ofabuse aggravating factorfor both Jeffrey and Sandra could have been based on each other's
conduct. For each charge thejury was asked, "

### Was the crime part ofan ongoing pattern of psychological orphysical abuse ofthe victim manifested by multiple incidents over a prolonged period oftime ?" E.g., J. Weller CP at 151; S. Weller CP at 106 ( emphasis added). Thejury 

### answered in the affirmative. As a result,thejury did not specifically find that either Jeffrey or Sandra engaged in an ongoing pattern ofabuse or that either Jeffrey or Sandra knewthe other engaged in an ongoing pattern ofabuse. Hayes, 2015 WL 481023, at * 2.

14Consol. Nos. 44726 - 6 -II / 44733 -9 -1I 

### The State concedes thatthe ongoing pattern ofabuse aggravating factorwas notvalid with regard to Sandra. We accept the State' s concession. The court' s instructions allowed 

### Sandra to be convicted as an accomplice, and thejury did not find that either Sandra's conduct or her knowledge ofJeffrey's conduct informed the aggravating factor. Hayes, 2015 WL 481023, at * 2. 

### However,the State does not concede thatthe ongoing pattern ofabuse aggravating factor is invalid as to Jeffrey. The State argues that based on the evidence, thejury could only have convicted Jeffrey as a principal and not as an accomplice. We disagree. With regard to the beatings ofthe children,the children's testimony was that only Jeffrey administered those beatings while Sandra encouraged him. However, there also were other forms of abuse —such as withholding food from the children — forwhich thejury could have found that Sandra was the principal and Jeffrey was the accomplice. And the State chose to 

### charge Jeffrey as an accomplice. Therefore, it is possible that thejury could have convicted Jeffrey as an accomplice to Sandra's abuse ratherthan convicting him as aprincipal forthe beatings. Underthese circumstances, thejury' s finding ofthe ongoing pattern ofabuse 

### aggravating factor as to Jeffrey could have been based on Sandra's conduct, and therefore was not a valid basis for the imposition of an exceptional sentence. 

### We hold that the ongoing pattern ofabuse aggravating factorwas not avalid basis forthe trial court' s imposition ofan exceptional sentence for either Jeffrey or Sandra.

3. Exceptional Sentence Based on One Valid and One Invalid Factor 

### The State argues that as long as one aggravating factor supports the trial court' s exceptional sentences, those sentences can be affirmed even though another aggravating factor
15Consol. Nos. 44726 - 6 -1I / 44733 -9 -II 

### supporting the exceptional sentence is held to be an invalid basis for imposing the sentences. The State argues that we should affirm the trial court' s imposition ofthe exceptional sentence 

### based solely on the deliberate cruelty aggravating factor. We disagree. A reviewing court can affirm an exceptional sentence even though not every aggravating factor supporting the exceptional sentence is valid. " Where the reviewing court overturns one or 

### more aggravating factors but is satisfied thatthe trial courtwould have imposed the same sentence based upon a factor or factors that are upheld, it may uphold the exceptional sentence
rather than remanding for resentencing." State v. Jackson, 150 Wn.2d 251, 276, 76 P. 3d 217 2003). This rule is particularly appropriate when the trial court expressly states that the same 

### exceptional sentence would be imposed based on any one ofthe aggravating factors standing alone. See State v. Nysta, 168 Wn.App. 30, 54, 275 P.3d 1162 (2012). 

### Here,the trial court stated that both the deliberate cruelty aggravating factor and the ongoing pattern aggravating factor independently provided authorityto orderthe exceptional sentence. However, the trial court did not specifically state that it would impose the same length ofexceptional sentence based on each ofthe aggravating factors standing alone. Therefore, the record is unclear as to how the trial court would have sentenced the Wellers if it had not 

### considered the ongoing pattern aggravating factor. Based on the record before us, we would need to speculate to hold that the trial court 

### would have imposed the same exceptional sentences based on onlythe deliberate cruelty 

### aggravating factor. Accordingly, we must remand to the trial court for resentencing. CONCLUSION We affirm the Wellers' convictions, but we remand to the trial court for resentencing. 16Consol. Nos. 44726 - 6 -II / 44733 -9 -II 

### A majority ofthe panel having determined that onlythe foregoing portion ofthis 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 the unpublished portion ofthis opinion,we address and rejectthe Wellers' remaining arguments. We hold that (1) the information charging the Wellers with unlawful imprisonment

was not required to contain the statutory definition of "restrain," ( 2) Washington' s accomplice 

### liability statute is not unconstitutionally overbroad, and (3) Sandra's statement ofadditional grounds ( SAG) assertions do not support reversal. A. RIGHT TO NOTICE - CHARGING DOCUMENT 

### The Wellers argue thatthe information charging them with unlawful imprisonment failed to allege the essential elements ofthe charge. Specifically, the information alleged that they knowingly restrain[ ed]" the children. J. Weller CP at 3 -4. The Wellers assert that an 

### information that only alleges " knowing restraint" is inadequate because it does not include the statutory definition of "restraint." Br. ofAppellant J. Weller at 12 -13. 

### Our Supreme Court expressly rejected this argument in State v.Johnson, 180 Wn.2d 295, 325 P. 3d 135 ( 2014). The court held that the information charging unlawful imprisonment need include only the statutory elements of unlawful impris 

### inment, as was done here. Id. at 300 - 03. 

### Accordingly, based on Johnson we holdthe information charging the Wellers was constitutionally sufficient. B. ACCOMPLICE LIABILITY STATUTE 

### Jeffrey contends that Washington's accomplice liability is overbroad because it 

### criminalizes constitutionally protected speech. We rejectedthis argument in State v. Ferguson,
17Consol. Nos. 44726 - 641 / 44733 -9 -II
164 Wn.App. 370, 375 -76, 264 P.3d 575 ( 2011). The other divisions ofthis court also have 

### rejected this argument. State v. Holcomb, 180 Wn.App. 583, 590, 321 P.3d 1288, review denied, 180 Wn.2d 1029 ( 2014); State v. Coleman, 155 Wn.App. 951, 961, 231 P.3d 212 (2010). Under Ferguson, we hold that the accomplice liability statute is not unconstitutional. C. SANDRA WELLER' S SAG

Sandra' s SAG argues three main issues: ( 1) the officers unconstitutionally searched her house without a warrant, (2) several ofthe facts presented at trial were erroneous, and (3) there was insufficient evidence to support her convictions or her exceptional sentence. We hold that none ofthese contentions support reversal of Sandra' s convictions or sentence. 

### A defendant may file a SAG, subject to limitations. First,we consider an issue in a SAG 

### onlywhere it adequately informs us ofthe nature and occurrence ofalleged errors. RAP 10. 10( c); State v. Alvarado, 164 Wn.2d 556, 569, 192 P. 3d 345 (2008). Second, we consider 

### only arguments that we did not already adequately address as raised bythe defendant' s appellate

counsel. See RAP 10. 10( a) (

### providing that the purpose ofa SAG is to " identify and discuss those matters related to the decision under review that the defendant believes have not been adequately addressed 

### by the brief filed 

### by the defendant' s counsel "). Third, issues involving facts outside of the record are properly raised in a personal restraint petition (PRP), not in a SAG. Alvarado, 164 Wn.2d at 569.

1. Search of House With regard to Sandra's first SAG contention, her appellate counsel already addressed the issue ofwhether the search ofthe Weller residence was constitutional. Therefore, we need not 

### separately address Sandra' s argument on this issue. See RAP 10. 10(a). 18Consol. Nos. 44726 - 6 -1I / 44733 -9 -II

2. Erroneous Trial Testimony 

### We also do not address Sandra' s many contentions that several ofthe facts testified to at trial were not in accordance with the truth. These issues depend on matters outside the record before us in this direct appeal. As a result, we cannot consider them in this direct appeal. State

v. McFarland, 127 Wn.2d 322, 335, 899 P. 2d 1251 ( 1995). 

### They are more properly raised in a PRP. Id.

3. Sufficient Evidence for Convictions 

### Evidence is sufficient to support a conviction ifafterviewing the evidence in the light most favorable to the prosecution, we determine that a rational fact finder would have found the elements ofthe crime beyond a reasonable doubt. State v. Homan, 181 Wn.2d 102, 105, 330 P. 3d 182 ( 2014). We deferto the trier offact on issues of conflicting testimony, witness 

### credibility, and persuasiveness ofthe evidence. State v. Thomas, 150 Wn.2d 821, 874 - 75, 83 P. 3d 970 (2004). 

### In this case, Sandrawas found guilty and sentenced on four counts ofsecond degree assault and one count ofunlawful imprisonment. Thejury's verdict does not make explicit 

### whether it found Sandra guilty under atheory ofprincipal or accomplice liability. However,the State argued at trial that Sandra was an accomplice to Jeffrey in the assault and unlawful imprisonment of CW and CG. To support a conviction for second degree assault, the State must show there was ( 1) an
assault with (2) a

### deadly weapon. RCW 9A.36. 021( 1)( c). Here, the State presented evidence 

### that Sandra encouraged Jeffreyto hitthe Weller children with a board,which resulted in beatings so ferocious that they drewblood and resulted in at least one broken bone and permanent skin 19Consol. Nos. 44726 - 6 -11 / 44733 -

9 -11 discoloration. This evidence is sufficient to support Sandra' s convictions for second degree

assault.To support a conviction for unlawful imprisonment, the State must show Sandra (1)

restricted another' s movements, (2) without that person' s consent, (3) without legal authority, 

### and (4) in a mamierthat substantially interfered with that person' s liberty. RCW 9A.40.040; Johnson, 180 Wn.2d at 301 -02. Here, the State presented evidence that (1) CG was forced to 

### remain for most ofthe day in her locked room,with an alarm on the outside ofthe door, and a missing inside door handle; (

### 2) she was only able to leave her room with Sandra's or Jeffrey' s permission; and (3) she was locked in her room with such frequencythat her younger siblings cut a hole in between their bedroom walls to pass food through to CG. Because CG was unable to 

### leave her room, heryounger siblings testified that theytook it upon themselves to procure food for her. This evidence is sufficient to support Sandra' s convictions for unlawful imprisonment. 

### Viewing the evidence in the light most favorable to the State, the evidence was sufficient 

### for any rational trier offactto find beyond areasonable doubtthat Sandra was guilty offour counts of second degree assault and one count ofunlawful imprisonment. Therefore, we hold that there was sufficient evidence to support her convictions.

4. Sufficient Evidence for Exceptional Sentence 

### Sandra argues thatthere was insufficient evidence to supportthejury's finding ofthe 

### aggravating factors that supported her exceptional sentence. We disagree with regard to the deliberate cruelty aggravating factor. The trial court carefully outlined the facts supporting this factor, and ruled thatthe evidence was sufficient to support thejury's findings. We hold that the 

### evidence clearly supports thejury's finding that Sandra engaged in deliberate cruelty. 20Consol. Nos. 44726 - 6 -II /44733- 9- 11 We need not address this argument regarding the ongoing pattern ofabuse aggravating factor because we hold above that this factor was not valid with regard to Sandra. We affirm the Wellers' convictions, but we remand for resentencing.

We concur:

JHANSON, C.J.

SUTTON, J.

21