Whatcom prosecutor asks judge to redo sentencing for woman convicted of child sex abuse

Bellingham Herald - 7/27/2020

Jul. 27--A local prosecutor is asking that a judge vacate the conviction of a woman who participated with her husband in the years-long sexual abuse of a girl known to them, after the judge sentenced the woman to less than half the agreed recommended prison time.

The prosecutor is also asking that the judge recuse herself from the case and send it to another judge for resentencing.

Kristi Lynn Johnston, 32, was sentenced on July 6 in Whatcom County Superior Court to a little more than two years in prison for one count of second-degree child molestation, according to court records. Johnston's sentence runs consecutively with a separate case, in which she was convicted of residential burglary after she forced her foot into her upstairs neighbor's doorway and pushed her palm into her upstairs neighbor's daughter's face.

Johnston will spend a total of 3 1/4 years in prison, the court records show.

In the child sex abuse case, Johnston was originally charged with second-degree child rape and third-degree child rape. Both charges included aggravating factors that said the crimes were part of an ongoing pattern of sexual abuse of the same victim under age 18 that was manifested by multiple incidents over a prolonged period of time, court records state.

Johnston and her husband Damian Johnston were arrested in July 2019 for the years-long sexual abuse of a girl known to them, which started when the girl was 12, according to court records. Kristi Johnston knew of the sexual assaults that were occurring, and on occasion, participated in them, the court records show.

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Damian Johnston has also been charged in the case. His case is still pending and he is currently scheduled to go to trial on Sept. 21.

The sentencing hearing

At Kristi Johnston's sentencing hearing on July 6, Whatcom County Superior Court Judge Lee Grochmal asked Whatcom County Prosecutor Erik Sigmar to explain how the plea deal was reached. Grochmal also asked Sigmar to explain whether details about Johnston's own history of sexual abuse were taken into account when deciding her sentencing recommendation.

Sigmar stated that Johnston's recommended sentence was five years in prison, to run consecutively with her burglary case, for a total of nearly seven years in prison. Sigmar said the sentence was agreed upon by the prosecution, defense, the victim, the sheriff's office, the state Department of Corrections, and Johnston herself. Sigmar said that Johnston's past abuse was taken into account by allowing her to plead to a lesser charge and significantly reducing the time that she could have spent in prison. Sigmar also said that Johnston was an active participant in the repeated sexual abuse of the teenager that this current case was surrounding.

"The bottom line is prior abuse does not excuse the defendant's horrific criminal conduct in this case, which she's acknowledged and owned up to by agreeing to this plea agreement," Sigmar said. "I've heard rape described as the equivalent of murder, the murder of a soul. No one is the same again after experiencing such trauma."

Sigmar said at the hearing that by not following the agreed-upon recommendation, Grochmal's sentencing decision could have a disquieting effect on other abuse victims and that the prosecutor's office might not be inclined to offer plea deals in the future on larger cases. Sigmar said that Johnston also lied to law enforcement when initially confronted about the abuse, and instead blamed the victim, the court records show.

"The past alleged trauma does not excuse the heinous criminal conduct in this case. The plea deal is fair, it is lenient and I ask the court to follow it," Sigmar said.

Grochmal said that Johnston's abuser got 5 1/2 years in prison after years of sexual abuse that resulted in a pregnancy at age 14 and continued abuse. Grochmal then asked how it's fair and how the prosecutor can justify that Johnston gets five years for both of her cases, court records state.

Sigmar said he couldn't speak to how a different prosecutor handled a different case in a different time, and that while the prosecution was aware of Johnston's history of abuse, "that does not excuse one of the worst sex crimes that we've seen in recent memory and we've accounted for that."

Grochmal said the case was troubling and difficult. She said she respected the attorneys' positions and that she almost always follows the agreed sentencing recommendations, but not this time. She said Johnston has put herself in situations where lots of violence has occurred and there's been no protection. Grochmal said while it doesn't excuse her behavior, those facts need to be considered.

"We need to focus in this case on rehabilitation for everybody. We need to focus on rehabilitation for Ms. Johnston," Grochmal said.

Grochmal sentenced Johnston to 27 months for the child molestation charge. With the 12 months for the burglary charge, Johnston faces a total sentence of 39 months, down from the recommended 83.

Grochmal said it was a lengthy amount of time for Johnston to be away from her family.

"I'm not in any way trying to belittle the experience that (the victim) has had by reducing the sentence from what's agreed, but I just don't think that it's appropriate to have her in the Department of Corrections for such a long period of time," Grochmal said. "I don't think that's moving things forward. I think that's moving things backward. I want to see things move forward for this family and I hope that everybody understands that."

Asking for reconsideration

A little more than a week later, on July 15, Sigmar filed a motion to vacate Johnston's conviction, and a motion for Grochmal to recuse herself from hearing further matters on the case and to send it to another judge for resentencing, the court records show.

In Sigmar's motion, he argued that Grochmal improperly investigated Johnston's abuser's court case, considered it while sentencing her and deprived the parties involved in the current sexual abuse case of due process of law and violated the court judicial standards for fairness and impartiality, according to court records.

Grochmal investigated Sigmar's motion said to sentence Johnston and then compared and contrasted Johnston's abuser's sentence with the sentence recommended for Johnston. Sigmar said the cases are unrelated in time, place and circumstances, even if they involve some of the same people. Sigmar's motion also said Grochmal's sentencing decision was hard for the victim.

"While the court stated it was not intending to mitigate harm done to (the victim), (the victim) felt like the judge was giving more consideration to (Johnston's) experience of abuse from the information obtained about the prior criminal prosecution of (Johnston's) abuser," the records state.

Sigmar's motion said that had Johnston gone to trial and been convicted, her sentencing range would have been a little more than 23 years to life in prison. The Department of Corrections also conducted a pre-sentence investigation, which is required when someone is sentenced for a sex offense, and concluded that Johnston should be sentenced to the agreed recommendation of 60 months, court records show. The department also determined that Johnston was just as complicit in the sexual abuse of the victim as the other defendant, and that Johnston has participated in treatment before but continues to act in a violent and abusive manner, court records state.

"The state is under no obligation to investigate other sentences, which could easily be taken out of context, especially considering the extraordinary and unique circumstances of the present case, wherein (Johnston) encouraged and participated in repeated rapes of (the victim) ... with (Damian Johnston) during a four year period of time," the court records state.

Sigmar's motion said that the judge's reliance on an unrelated 2004 criminal case resulted in the diminished consideration of the current case and victim, and gave the appearance of violating the fairness standard.

Sigmar asked that Grochmal vacate Johnston's conviction, that she recuse herself from the case (meaning she can no longer hear it) and to send it to another judge for resentencing.

Sigmar's motion will be heard by Grochmal and decided at a hearing on Aug 5.

Resources

If you or someone you know is experiencing domestic violence or sexual assault, you can contact the following local resources for free, confidential support:

-- Domestic Violence & Sexual Assault Services: 24-hour Help Line: 360-715-1563, Email: info@dvsas.org.

-- Lummi Victims of Crime: 360-312-2015.

-- Bellingham Police: You can call anonymously at 360-778-8611, or go online at cob.org/tips.

-- WWU Consultation and Sexual Assault Support Survivor Advocacy Services: 360-650-3700 or wp.wwu.edu/sexualviolence/.

-- Brigid Collins Family Support Center: 360-734-4616, brigidcollins.org.

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