State Of Washington v. Sean Michael Klamn ( 2014 )


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  •           IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
    STATE OF WASHINGTON,
    )      DIVISION ONE
    Respondent,
    i—
    )      No. 71961-1-1                  no
    ——.
    v.                                                               SflP""'
    )      UNPUBLISHED OPINION                  win'
    zsc
    SEAN MICHAEL KLAMN,
    —136 Wn.2d 619
    , 621-22, 
    964 P.2d 1187
     (1998). The proper remedy for a failure to comply with CrR 6.1 (d) is
    remand for entry of written findings of fact and conclusions of law. Head, 
    136 Wn.2d at 624
    . Reversal is only appropriate where the defendant has
    demonstrated actual prejudice. Head, 
    136 Wn.2d at 624
    .
    On October 3, 2013, the trial court issued its written findings of fact and
    conclusions of law supporting the convictions. On December 18, 2013, the trial
    court issued its findings of fact and conclusions of law supporting the exceptional
    sentence. Because the trial court entered written findings of fact and conclusions
    of law, albeit untimely, remand is unnecessary.
    Reversal is also inappropriate. "We will not infer prejudice .. . from delay
    in entry of written findings of fact and conclusions of law." Head, 
    136 Wn.2d at 625
    . Rather, as the Supreme Court stated in Head, "a defendant might be able
    to show prejudice resulting from the lack of written findings and conclusions
    where there is strong indication that findings ultimately entered have been
    'tailored' to meet issues raised on appeal." 
    136 Wn.2d at 624-25
    . Here, the trial
    judge declared that he had not read Klamn's appellate brief. Thereafter, despite
    having the opportunity to file a supplemental brief addressing prejudice, Klamn
    did not do so. Accordingly, Klamn fails to demonstrate any prejudice from the
    trial court's delay in entering written findings of fact and conclusions of law.
    -6-
    No. 71961-1-1/7
    Because written findings of fact and conclusions of law have been entered
    and because he failed to demonstrate any prejudice from the delay, Klamn is not
    entitled to appellate relief on this assignment of error.
    Ill
    Klamn contends that the trial court erred by sentencing him to 600 months
    in confinement. This is so, he asserts, because 600 months is clearly excessive
    for the crimes of which he was convicted. We disagree.
    We review whether the length of a sentence is clearly excessive by using
    an abuse of discretion standard. State v. Oxborrow, 
    106 Wn.2d 525
    , 529-30,
    
    723 P.2d 1123
     (1986). A sentence is clearly excessive if it is "'clearly
    unreasonable, i.e., exercised on untenable grounds or for untenable reasons, or
    an action that no reasonable person would have taken.'" Oxborrow, 
    106 Wn.2d at 531
     (quoting State v. Strong, 
    23 Wn. App. 789
    , 794, 
    599 P.2d 20
     (1979)). "In
    other words, the reviewing court asks whether the grounds relied on, if any, in
    determining the length of the sentence are tenable and whether the amount of
    incarceration imposed is such that 'no reasonable person' would have imposed
    it." State v. Ross. 
    71 Wn. App. 556
    , 569, 
    861 P.2d 473
    , 
    883 P.2d 329
     (1993)
    (citing State v. Harmon. 
    50 Wn. App. 755
    , 762, 
    750 P.2d 664
     (1988)).
    "'[T]he sentencing court need not state reasons in addition to those relied
    upon to justify the imposition of an exceptional sentence above the standard
    range in the first instance to justify the length of the sentence imposed.'" State v.
    Ritchie, 
    126 Wn.2d 388
    , 395, 
    894 P.2d 1308
     (1995) (quoting Ross. 71 Wn. App.
    at 573). "Indeed, once a reviewing court has determined that the facts support
    -7-
    No. 71961-1-1/8
    the reasons given for exceeding the range and that those reasons are substantial
    and compelling, there is often nothing more to say." Ross. 71 Wn. App. at 571-
    72. Accordingly, we first review whether an exceptional sentence is justified by
    the facts in this case.
    Here, the trial court found three aggravating factors that justified an
    exceptional sentence: domestic violence, an ongoing pattern of abuse, and
    abuse of a position of trust. The facts adequately support the trial court's
    findings. Klamn is S.A.K.'s father, both a family member and someone who
    occupies a position of trust to a child. However, Klamn sexually abused his
    daughter for seven years. These facts support the trial court's finding of the
    three aggravating factors and justify an exceptional sentence.
    Additionally, the trial court found that Klamn had committed 14 offenses,
    resulting in a high offender score and some offenses going unpunished. See
    RCW 9.94A.535(2)(c). The trial court also found that the victim was under fifteen
    at the time of the offenses. In light of these findings and the three aggravating
    factors, we cannot conclude that no reasonable person would have sentenced
    Klamn to 600 months.
    The trial court did not err by sentencing Klamn to 600 months of
    confinement.
    IV
    In his statement of additional grounds, Klamn contends that the trial court
    erred by allowing S.A.K. to testify to Klamn's statements made during a
    telephone conversation with her. According to Klamn, this testimony was overly
    -8-
    No. 71961-1-1/9
    prejudicial.4 Although Klamn objected to the admission of S.A.K.'s testimony at
    trial, he did so on the basis of hearsay, not unfair prejudice. Issues raised for the
    first time on appeal are not reviewable unless they constitute "manifest error
    affecting a constitutional right." RAP 2.5(a)(3). Because Klamn's contention is
    raised for the first time on appeal and does not affect a constitutional right, we
    decline to consider it.
    V
    Klamn further contends, in his statement of additional grounds, that his
    convictions are not supported by sufficient evidence. This is so, he asserts,
    because he cannot be convicted on S.A.K.'s uncorroborated testimony and
    because the evidence violated the "corpus delicti rule." Neither assertion has
    merit.
    Contrary to Klamn's assertion, there is no requirement that victim
    testimony be corroborated by physical evidence. Circumstantial evidence is not
    necessarily less reliable than direct evidence. State v. Delmarter, 
    94 Wn.2d 634
    ,
    638, 
    618 P.2d 99
     (1980). Moreover, the trier of fact is entitled to make credibility
    determinations and believe or disbelieve any of the witnesses.5 State v.
    Camarillo. 
    115 Wn.2d 60
    , 71, 
    794 P.2d 850
     (1990). Here, the trial court heard
    the testimony often witnesses, and determined that S.A.K. was more credible
    than Klamn. We do not disturb that determination. See Camarillo, 
    115 Wn.2d at
    4 Klamn also asserts that S.A.K.'s testimony "assumes facts not in evidence" and
    "constituted impermissible opinion testimony." These claims fail for the same reason.
    5 Further, contrary to Klamn's assertions, S.A.K.'s testimony was corroborated by other
    evidence. Seven witnesses testified consistent with S.A.K.'s version of events. The audio- and
    videotapes presented at trial also lent support to S.A.K.'s testimony.
    No. 71961-1-1/10
    71 (determinations of credibility not subject to appellate review).
    Similarly, Klamn's convictions do not violate the "corpus delicti rule." The
    "corpus delicti rule" provides that "confessions or admissions of a person charged
    with a crime are not sufficient, standing alone, to prove the corpus delicti and
    must be corroborated by other evidence." State v. Aten, 
    130 Wn.2d 640
    , 655-56,
    
    927 P.2d 210
     (1996). Any self-incriminating statements made by Klamn6 were
    far from the only evidence presented. Rather, S.A.K. testified as to her version of
    the events. Her testimony was corroborated by seven witnesses. The "corpus
    delicti rule" has no applicability to this case.
    The trial court did not err by finding Klamn guilty and entering judgment on
    all 14 counts.7
    Affirmed.
    We concur:
    1
    ftt^rv^B^ C)J,
    '7~y
    6 We assume that the statements to which Klamn refers were present on the audio- and
    videotapes, as we discern no self-incriminating statements from the record provided.
    7 Klamn further makes numerous claims of ineffective assistance against three of his
    attorneys. However, the record on appeal is not sufficient for us to review any of these claims.
    -10-