State Of Washington, V. Brennaris Marquis Johnson ( 2024 )


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  •        IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
    DIVISION ONE
    STATE OF WASHINGTON,                      No. 83738-9-I
    Respondent,
    ORDER DENYING MOTION
    v.                          FOR RECONSIDERATION,
    WITHDRAWING OPINION,
    BRENNARIS MARQUIS JOHNSON,                AND SUBSTITUTING
    Appellant.       OPINION
    Appellant Brennaris Johnson has moved for reconsideration of the
    published opinion filed on October 16, 2023. The respondent State of
    Washington has filed an answer. The panel has considered the motion pursuant
    to RAP 12.4 and has determined that the motion should be denied, the opinion
    should be withdrawn, and a substitute opinion be filed.
    Now, therefore, it is hereby
    ORDERED that the appellant’s motion for reconsideration is denied; and it
    is further
    ORDERED that the published opinion filed on October 16, 2023, is
    withdrawn; and it is further
    ORDERED that a substitute published opinion be filed.
    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
    STATE OF WASHINGTON,                         No. 83738-9-I
    Respondent,          DIVISION ONE
    v.                             PUBLISHED OPINION
    BRENNARIS MARQUIS JOHNSON,
    Appellant.
    SMITH, C.J. — Brennaris Marquis Johnson appeals a jury verdict finding
    him guilty of second degree assault and felony violation of a no-contact order.
    On appeal, Johnson contends that the trial court erred by (1) instructing the jury
    that fourth degree felony assault was a lesser degree offense to second degree
    assault, (2) admitting evidence of prior assaults against the victim in this case,
    (3) imposing an exceptional sentence, (4) making an impermissible factual
    finding when it imposed an exceptional sentence, and (5) imposing a longer than
    statutorily permitted sentence on the no-contact order violation. Not finding his
    first four arguments persuasive, we affirm the convictions. However, we agree
    that Johnson’s sentence for the violation of the no-contact order is longer than
    statutorily permissible and remand for the court to correct the sentence.
    FACTS
    Brennaris Marquis Johnson and Nicole Trichler began dating in early
    2020. Following an incident in August 2020, Johnson was arrested and a
    No. 83738-9-I/2
    no-contact order protecting Trichler was entered. Despite the no-contact order,
    the parties stayed in contact.
    In late January 2021, while the no-contact order was still in place, Trichler
    picked Johnson up from jail and the two spent a handful of days at Trichler’s
    apartment. During this time, Johnson was “very argumentative” and accused
    Trichler of stealing his stimulus check1 and cheating on him. When Trichler
    denied stealing the check, Johnson responded by hitting her under the jaw.
    Trichler asked Johnson why he had hit her, but Johnson just walked away before
    then turning around and punching Trichler repeatedly on her head, like he would
    hit a punching bag. Trichler again asked Johnson why he had hit her. In
    response, Johnson again struck Trichler on her temple. He then told Trichler that
    he could “do this and nobody would ever see a bruise.” Trichler’s head started to
    hurt and she asked Johnson if she could take some aspirin. Trichler testified at
    trial that at this point in time, she was trying not to get upset because she didn’t
    want Johnson to accuse her of playing the victim. Trichler took four aspirin for
    the pain.
    About 15 minutes later, Trichler described hearing a buzzing noise and
    feeling an intense pressure in her head. Trichler told Johnson to call 911
    because she felt like she was “going to die.”2 By the time emergency personnel
    responded, Trichler was “crawling around” on her hands and knees. One of the
    1  During the COVID-19 pandemic, the federal government issued
    “Economic Impact Payments,” commonly known as “stimulus checks” to eligible
    recipients as part of the pandemic relief.
    2 Johnson had taken Trichler’s phones away from her at this point.
    2
    No. 83738-9-I/3
    responding emergency medical technicians (EMTs) checked Trichler’s vital
    signs, concluded she was not in danger of serious injury, and advised her to visit
    a walk-in clinic. Trichler did not report any assault to the EMTs or tell them that
    she and Johnson had been arguing.
    Once the EMTs departed, Trichler’s condition steadily deteriorated. She
    began to vomit and asked Johnson to call 911 again. When the EMTs returned,
    Johnson or Trichler3 told them that Trichler had used methamphetamine and had
    been drinking rum that day. The EMTs changed their impression of the incident
    to one involving substance abuse, reasoning that Trichler’s headache was from
    her drug and alcohol use. The EMTs then drove Trichler to the hospital.
    At the hospital, Trichler told staff she had used methamphetamine and
    immediately developed a severe headache. She denied any assault or trauma.
    A CT4 scan revealed Trichler had a subdural hematoma, a type of inner brain
    bleed. Trichler was transferred to the trauma and acute care surgery team for
    brain surgery to remove the hematoma. After the surgery, Trichler spent several
    days recovering in the hospital.
    Trichler initially blamed the aspirin for her condition. But after talking with
    her mother, Trichler realized the severity of her injuries and decided to report the
    assault to police. Johnson was subsequently charged with second degree
    assault and felony violation of a no-contact order.
    3 Trichler testified that Johnson relayed this information to the EMTs but
    EMT Galen Wallace testified that Trichler told him herself.
    4 Computerized tomography.
    3
    No. 83738-9-I/4
    Before trial, during motions in limine, the State moved to admit evidence of
    Johnson’s prior assaults against Trichler. The State argued that Trichler’s
    credibility would be a primary issue because of her delay in reporting and general
    denial of the assault. After hearing pretrial testimony from Trichler, the court
    granted the State’s motion, subject to a limiting instruction. The State also
    requested that the jury be instructed on fourth degree felony assault as a lesser
    degree offense of second degree assault. Johnson objected. The court noted
    that the jury could conclude Trichler’s injuries were caused by something other
    than the assault, such as a fall, and preliminarily granted the State’s request.
    The jury found Johnson guilty as charged, and the trial court sentenced
    him to a total of 168 months of confinement and 30 months of community
    custody. Johnson appeals.
    ANALYSIS
    Lesser Degree Offense
    Johnson contends that the court violated his due process rights by
    instructing the jury on fourth degree felony assault as a lesser degree offense of
    second degree assault, denying that it is a lesser degree offense. He maintains
    that even if fourth degree felony assault is a lesser degree offense, the evidence
    did not support such an instruction. He also argues that, although the jury did not
    convict him of fourth degree felony assault, he suffered substantial prejudice
    because the State introduced evidence to support that instruction. We conclude
    that the instruction was not given in error.
    4
    No. 83738-9-I/5
    Criminal defendants are generally entitled to notice of the charges they
    are to meet at trial and may be convicted only of the crimes charged in the
    information. State v. Tamalini, 
    134 Wn.2d 725
    , 731, 
    953 P.2d 450
     (1998). But
    when a defendant is charged with an offense consisting of different degrees, the
    jury may find the defendant guilty of a lesser degree5 of the charged offense.
    RCW 10.61.003. A trial court may instruct the jury on a lesser degree offense
    when
    “(1) the statutes for both the charged offense and the proposed
    [lesser] degree offense proscribe but one offense; (2) the
    information charges an offense that is divided into degrees, and the
    proposed offense is a [lesser] degree of the charged offense; and
    (3) there is evidence that the defendant committed only the [lesser]
    offense.”
    State v. Fernandez-Medina, 
    141 Wn.2d 448
    , 454, 
    6 P.3d 1150
     (2000) (internal
    quotation marks omitted) (quoting State v. Peterson, 
    133 Wn.2d 885
    , 891, 
    948 P.2d 381
     (1997)).
    “The standard of review applied to a trial court’s decision to give a jury
    instruction depends on whether that decision was based on an issue of law or
    fact.” State v. Loos, 14 Wn. App. 2d 748, 760, 
    473 P.3d 1229
     (2020). The first
    two prongs of the Fernandez-Medina test are legal questions, which we review
    de novo. Loos, 14 Wn. App. 2d at 760. The third prong presents a question of
    5  A lesser degree offense is a close cousin of a lesser included offense.
    A lesser included offense instruction is warranted where (1) each of the elements
    of the lesser offense are a necessary element of the offense charged and (2) the
    evidence in the case supports an inference that the lesser crime was committed.
    State v. Workman, 
    90 Wn.2d 443
    , 447-48, 
    584 P.2d 382
     (1978). The legal prong
    of the Workman test is not implicated in a lesser degree analysis. State v.
    Fernandez-Medina, 
    141 Wn.2d 448
    , 455, 
    6 P.3d 1150
     (2000).
    5
    No. 83738-9-I/6
    fact that we review for an abuse of discretion. Loos, 14 Wn. App. 2d at 760.
    Only the first and third prongs are at issue here.6
    1. Offense Proscribed
    To determine whether criminal statutes “ ‘proscribe but one offense,’ ”
    Washington courts look to whether the statutes criminalize the same or different
    conduct. Tamalini, 
    134 Wn.2d at 732-33
     (quoting State v. Foster, 
    91 Wn.2d 466
    ,
    472, 
    589 P.2d 789
     (1979)). For example, in Tamalini, our Supreme Court
    concluded that first and second degree manslaughter were not lesser degree
    offenses of second degree felony murder because “the manslaughter statutes
    and the felony murder statutes proscribe significantly different conduct and thus
    define separate and distinct crimes.” 
    134 Wn.2d at 732
    . The court examined the
    statutory elements of manslaughter and felony murder and reasoned that,
    although both statutes generally proscribe killing another human, they are
    “directed to significantly differing conduct of defendants.” Tamalini, 
    134 Wn.2d at 733
    . Similarly, in State v. McJimpson, this court concluded that second
    degree felony murder and second degree manslaughter were not the same
    offense because “they prohibit significantly different conduct with regard to such
    killing” and the statutes involve different mens rea requirements. 
    79 Wn. App. 164
    , 171-72, 
    901 P.2d 354
     (1995).
    6 Johnson does not appear to contest the second element of the
    Fernandez-Medina test, that the information charges an offense divided into
    degrees.
    6
    No. 83738-9-I/7
    Here, Johnson was charged under RCW 9A.36.021(1), which provides:
    A person is guilty of assault in the second degree if he or she,
    under circumstances not amounting to assault in the first degree:
    (a) Intentionally assaults another and thereby recklessly inflicts
    substantial bodily harm.
    The jury instructions reflect this iteration of second degree assault.
    Under RCW 9A.36.041(1), a person is guilty of fourth degree assault “if, under
    circumstances not amounting to assault in the first, second, or third degree, or
    custodial assault, he or she assaults another.”
    Fourth degree assault is a class C felony if the defendant, within the
    preceding decade, has been convicted of two or more of the following offenses,
    for which domestic violence against an intimate partner was proved:
    (i) Repetitive domestic violence offense as defined in
    RCW 9.94A.030;
    (ii) Crime of harassment as defined by RCW 9A.46.060;
    (iii) Assault in the third degree;
    (iv) Assault in the second degree;
    (v) Assault in the first degree; or
    (vi) A municipal, tribal, federal, or out-of-state offense
    comparable to any offense under (b)(i) through (v) of this
    subsection.
    RCW 9A.36.041(3)(b). Similarly, the jury instructions reflect this type of fourth
    degree felony assault.
    Assault is undefined in our criminal code, and courts apply the common
    law definition. State v. Walden, 
    67 Wn. App. 891
    , 894, 
    841 P.2d 81
     (1992).
    Here, the jury was instructed that an “assault” is “an intentional touching or
    striking of another person that is harmful or offensive regardless of whether any
    7
    No. 83738-9-I/8
    physical injury is done to the person. A touching or striking is offensive if the
    touching or striking would offend an ordinary person who is not unduly sensitive.”
    Comparing the conduct covered by each criminal statute, it is apparent
    that RCW 9A.36.021(1)(a) and RCW 9A.36.041(1) and (3) proscribe the same
    conduct. Both statutes proscribe acting with intent to achieve the same result:
    causing harmful contact to another. That the two crimes require the same mens
    rea is particularly relevant, since case law has often distinguished offenses
    because they require different mens rea. See Loos, 14 Wn. App. 2d at 762-73
    (holding fourth degree intentional assault is not a lesser degree offense to third
    degree assault of a child when the latter was based on criminal negligence). We
    conclude that fourth degree felony assault is a lesser degree offense to second
    degree assault.
    Still, Johnson attempts to distinguish the two offenses by arguing fourth
    degree felony assault is not the same offense because it “requires proof of an
    additional fact not required for second degree assault,” that being proof of prior
    convictions. We disagree. Only in the context of lesser included offenses must
    the lesser offense contain all the elements of the greater offense. State v.
    Coryell, 
    197 Wn.2d 397
    , 411-12, 
    483 P.3d 98
     (2021). Lesser degree offenses
    can have an element that is not an element of the greater offense. Coryell, 197
    Wn.2d at 411.
    2. Evidence of Lesser Offense
    The third Fernandez-Medina prong is satisfied “only if based on some
    evidence admitted, the jury could reject the greater charge and return a guilty
    8
    No. 83738-9-I/9
    verdict on the lesser.” Coryell, 197 Wn.2d at 407. But it is not enough that the
    jury might simply disbelieve the State’s evidence; some evidence presented must
    affirmatively establish the defendant’s theory on the lesser degree offense.
    Fernandez-Medina, 
    141 Wn.2d at 456
    . When determining on appeal whether the
    evidence at trial was sufficient to support a lesser degree instruction, we “view[]
    the ‘supporting evidence in the light most favorable to the party that requested
    the instruction.’ ” Coryell, 197 Wn.2d at 415 (quoting Fernandez-Medina, 
    141 Wn.2d at 455-56
    ). Specifically, “a requested jury instruction on a lesser included
    or inferior degree offense should be administered ‘if the evidence would permit a
    jury to rationally find a defendant guilty of the lesser offense and acquit him of the
    greater.’ ” Fernandez-Medina, 
    141 Wn.2d at 456
     (quoting State v. Warden, 
    133 Wn.2d 559
    , 563, 
    947 P.2d 708
     (1997)).
    Here, the evidence could have supported that Johnson assaulted Trichler
    but did not cause her substantial bodily harm. At trial, Detective Maiya Atkins
    testified that during a police interview, Johnson told the detective that he called
    911 because Trichler had “been falling all over the place.” Detective Atkins also
    relayed that Johnson mentioned Trichler had “been using methamphetamine and
    thought that might have been an issue [that caused her to fall]” and that Trichler’s
    “use of aspirin . . . might have been a reason why” Trichler had fallen. Dr. Eric
    Kinder also testified that he believed Trichler’s symptoms might have been
    caused by her methamphetamine use, which could have raised her blood
    pressure enough to trigger “a very rare kind of aneurysmal hemorrhage.”
    Dr. Amy Walker’s testimony further supported this view; she noted that Trichler
    9
    No. 83738-9-I/10
    reported the headache’s onset as coming immediately after using
    methamphetamine. And an emergency medical services (EMS) responder,
    Galen Wallace, testified that he changed his impression of Trichler at the second
    EMS visit to substance use because Trichler admitted to “using
    methamphetamine and to drinking rum that day.”
    This evidence affirmatively supported an inference that Johnson assaulted
    Trichler. But the conflicting testimony about the origin of Trichler’s symptoms left
    it for the jury to determine whether it was Johnson’s assault or, instead, Trichler’s
    drug use, drinking rum, and falling that caused her subsequent brain injury.
    Viewing the evidence in the light most favorable to the State, the party requesting
    the lesser degree instruction, the evidence could have allowed the jury to reject
    the greater charge and return a verdict only on the lesser.
    We briefly note that Johnson misconstrues the “light most favorable”
    standard. He contends that viewing the evidence in the light most favorable to
    the State, the jury would conclude that Johnson assaulted Trichler and that this
    assault was the sole cause of Trichler’s injuries. In support of this conclusion,
    Johnson points to Trichler’s testimony that Johnson punched her, her testimony
    that she did not fall, and medical testimony that head trauma likely caused
    Trichler’s injuries. But because fourth degree felony assault does not require
    Johnson to have caused Trichler substantial injury, the proper inquiry is whether
    the evidence could support an inference that something other than Johnson
    caused Trichler’s injuries. In this case, it can. As already noted, there were
    10
    No. 83738-9-I/11
    many possible causes of Trichler’s injuries that the jury could have believed as
    being the proximate cause of her injuries.
    Johnson also contends that the court erred by granting the State’s request
    for the lesser degree offense before hearing any evidence. This is inaccurate.
    During motions in limine, the State requested that the jury be instructed on fourth
    degree felony assault as a lesser degree offense of second degree assault. The
    parties then discussed what evidence they intended to proffer and whether that
    evidence could support the lesser degree offense. Johnson argued that the prior
    conviction evidence necessary to support the lesser degree offense violated
    ER 404(b) and that the court should first consider pretrial testimony from Trichler
    before making a ruling. The court then overruled the State’s motion, finding that
    probative value of the prior offense evidence did not outweigh its prejudicial
    effect. The court noted that it was open to reconsidering its ruling.
    The next day, the court heard pretrial testimony from Trichler. The court
    then acknowledged that it had erred in overruling the State’s request for a lesser
    degree instruction because it had misunderstood the applicable law and asked
    both parties to reargue their positions. After the parties presented their positions,
    the court concluded that based on the facts presented, there was sufficient
    evidence for the lesser degree instruction and granted the State’s request.
    Later on, at the close of evidence, Johnson again objected to fourth
    degree felony assault as a lesser degree offense. The court overruled the
    objection and allowed the instruction.
    11
    No. 83738-9-I/12
    Contrary to Johnson’s contention, the court heard evidence before initially
    ruling on the jury instruction. The State also described the evidence it intended
    to offer to support the lesser degree instruction before the court made its ruling.
    The court then reconsidered its ruling at the close of trial and reaffirmed that the
    instruction was proper. The court properly determined on both occasions that an
    instruction on fourth degree felony assault was warranted. Such an instruction
    was not error.
    3. Substantial Prejudice
    Johnson maintains that the court’s instruction on fourth degree felony
    assault resulted in substantial prejudice because (1) the jury was instructed on
    an uncharged offense and (2) this instruction permitted admittance of prejudicial
    evidence. We disagree.
    Generally, a defendant is entitled to notice of the charges they will face at
    trial and may be convicted of only charges contained in the information.
    Tamalini, 
    134 Wn.2d at 731
    . But RCW 10.61.003 provides sufficient notice to
    defendants that they may be convicted of any lesser offense to the charged
    crime. Foster, 
    91 Wn.2d at 472
    . Thus, there is no prejudice and a jury may
    properly find a defendant guilty of any lesser degree crime of the crimes included
    in the original information. Peterson, 
    133 Wn.2d at 893
    .
    In this case, the jury was instructed on a lesser degree offense to second
    degree assault, so the fact that the lesser offense was not charged is a nonissue.
    Johnson’s argument that evidence related to the lesser degree offense was
    wrongly admitted is also unconvincing. That evidence—namely, that there were
    12
    No. 83738-9-I/13
    two prior assaults—was subject to a limiting instruction: the jury was not
    permitted to consider evidence of Johnson’s prior convictions if it found him guilty
    of second degree assault. The jury found him guilty of second degree assault,
    and we presume the jury followed instructions and did not consider the prior
    convictions as evidence. State v. Mohamed, 
    186 Wn.2d 235
    , 244, 
    375 P.3d 1068
     (2016) (“We presume that a jury will follow the instructions provided to it.”).
    ER 404(b)
    Johnson asserts that evidence of prior assaults between him and Trichler
    was not relevant to Trichler’s credibility and that the court erred by admitting it.
    Because this evidence helped explain Trichler’s inconsistent statements and her
    conduct following the assault at issue here, we disagree.
    We review the trial court’s determination to admit or exclude evidence for
    an abuse of discretion. State v. Foxhoven, 
    161 Wn.2d 168
    , 174, 
    163 P.3d 786
    (2007). A trial court abuses its discretion if its decision is manifestly
    unreasonable, or is exercised on untenable grounds or for untenable reasons. In
    re Marriage of Littlefield, 
    133 Wn.2d 39
    , 46-47, 
    940 P.2d 1362
     (1997). The
    appellant bears the burden of proving the court abused its discretion. State v.
    Wade, 
    138 Wn.2d 460
    , 464, 
    979 P.2d 850
     (1999).
    ER 404(b) provides that “[e]vidence of other crimes, wrongs, or acts is not
    admissible to prove the character of a person in order to show action in
    conformity therewith.” But this evidence may be used for another purpose, such
    as proof of motive, plan, or identity. Foxhoven, 
    161 Wn.2d at 175
    . Evidence that
    a defendant previously assaulted a victim is generally inadmissible if the
    13
    No. 83738-9-I/14
    defendant assaults the same victim on a later occasion. State v. Harris, 20 Wn.
    App. 2d 153, 157, 
    498 P.3d 1002
     (2021), review denied, 
    199 Wn.2d 1016
    , 
    510 P.3d 1001
     (2022). However, such evidence may be admissible to “assist the jury
    in judging the credibility of a recanting victim.” State v. Magers, 
    164 Wn.2d 174
    ,
    1886, 
    189 P.3d 126
     (2008) (plurality opinion). And the victim’s credibility need
    not be an element of the charged offense. See, e.g., Harris, 20 Wn. App. 2d at
    158 (evidence of prior assaults admissible to help jury determine recanting
    witness’s credibility in case involving violation of a no-contact order charge). To
    determine if ER 404(b) evidence is admissible, Washington courts use a four-part
    test:
    “(1) find by a preponderance of the evidence that the misconduct
    occurred, (2) identify the purpose for which the evidence is sought
    to be introduced, (3) determine whether the evidence is relevant to
    prove an element of the crime charged, and (4) weigh the probative
    value against the prejudicial effect.”
    State v. Gresham, 
    173 Wn.2d 405
    , 421, 
    269 P.3d 207
     (2012) (quoting State v.
    Vy Thang, 
    145 Wn.2d 630
    , 642, 
    41 P.3d 1159
     (2002)). “The party seeking to
    introduce the evidence has the burden of establishing the first, second, and third
    elements.” State v. Ashley, 
    186 Wn.2d 32
    , 39, 
    375 P.3d 673
     (2016). “This
    analysis must be conducted on the record.” Foxhoven, 
    161 Wn.2d at 175
    . If the
    evidence is admitted, the court must give a limiting instruction to the jury. Ashley,
    
    186 Wn.2d at 39
    . A court’s decision to admit evidence of prior bad acts depends
    heavily on the facts of the case and the purpose for which the evidence is sought
    to be introduced. Ashley, 
    186 Wn.2d at 44
    .
    14
    No. 83738-9-I/15
    In this case, the trial court conducted the appropriate four-step analysis on
    the record and gave a limiting instruction to the jury. However, neither party cites
    or addresses this four-part test on appeal. The State relies on an older, two-part
    test that concerns only relevance and prejudice, and Johnson argues generally
    that any evidence of past incidents of domestic violence is categorically
    impermissible, irrelevant, and unduly prejudicial. Johnson’s argument largely
    tracks the second, third, and fourth prongs of the four-part test. Because neither
    party challenges or addresses the first prong, we address only the other three.
    1. Second Prong: Purpose for Introducing Evidence
    The State sought to introduce evidence of past domestic violence
    incidents and how Trichler responded to those incidents to help the jury assess
    Trichler’s credibility. This clearly satisfies the second prong of the ER 404(b)
    inquiry, which only requires a party to identify a purpose for offering the evidence.
    See, e.g., Magers, 
    164 Wn.2d at 185-86
     (prior acts of domestic violence
    admissible to support a witness’s credibility after their testimony changed).
    2. Third Prong: Relevance
    Evidence is relevant if it has “any tendency to make the existence of any
    fact that is of consequence to the determination of the action more probable or
    less probable that it would be without the evidence.” ER 401. Evidence of prior
    incidents of domestic violence is probative of a witness’s credibility in cases
    where a witness gives conflicting statements about the defendant’s conduct.
    State v. Gunderson, 
    181 Wn.2d 916
    , 923-25, 
    337 P.3d 1090
     (2014); cf. Ashley,
    15
    No. 83738-9-I/16
    186 Wn.2d at 47 (trial court improperly admitted prior assault evidence where
    victim’s trial testimony was consistent with prior statements to police).
    Here, the trial court found that, “with regard to [Trichler’s] credibility and
    her allegation in this case,” evidence of prior domestic abuse was “relevant as to
    how she behaves in this relationship.” The State contends that evidence of prior
    assaults and Trichler’s response to those assaults were relevant to explain her
    inconsistent statements and conduct. We agree.
    Johnson contends that the prior assaults are not relevant because they
    show only that “sometimes [Trichler] reports alleged assaults and sometimes she
    does not.” But Trichler’s inconsistent reporting is exactly what is relevant. As is
    reflected in this case, victims of domestic violence often minimize, deny, or lie
    about abuse in an effort to protect themselves and avoid repeated violence from
    their batterer. Anne L. Ganley, Domestic Violence: The What, Why, and Who, as
    Relevant to Criminal and Civil Court Domestic Violence Cases, in DOMESTIC
    VIOLENCE MANUAL FOR JUDGES ch. 2, at 41 (2016), https://www.courts.wa.gov/
    content/manuals/domViol/chapter2.pdf [https://perma.cc/UA2L-STVU]. This is
    particularly true when domestic violence issues go public, such as in court
    proceedings, and batterers try to increase their coercive control over the abused
    party. Ganley, supra, ch. 2 at 41. And sometimes, the abused party’s
    minimization or denial is actually a survival mechanism: when asked by others if
    they were injured, they may honestly answer no because they have been so
    successful in blocking out the event. Ganley, supra, ch. 2, at 42. This is not to
    say that victims of domestic violence are less credible. We merely acknowledge
    16
    No. 83738-9-I/17
    the tremendous emotional toll that a relationship plagued by domestic violence
    may have on a person.
    These dynamics are present in this case. The State offered evidence of
    two prior assaults to demonstrate that Trichler had a pattern of inconsistently
    reporting past abuse and later recanting. After the first prior assault, Trichler
    decided not to report it to authorities, despite Johnson having strangled her until
    she was “out cold.” And after the second prior assault, Trichler reported the
    incident to police but “ran off” before they arrived. She later wrote a letter to the
    trial court recanting her earlier report of assault.
    Trichler’s conduct in this case mirrors her past conduct. After the present
    assault, Trichler denied repeatedly to emergency medical personnel and hospital
    staff that she had been assaulted or suffered any trauma. But at trial, Trichler
    testified repeatedly that Johnson had hit her. Trichler also waited several days to
    report the assault, and testified that she did not initiate the reporting—her mother
    called the police for her. Moreover, once Trichler was discharged from the
    hospital, she continued to communicate with Johnson and even went to his
    apartment. Trichler’s inconsistent statements before and at trial, along with her
    actions after the assault, undercut her credibility at trial. Contrary to Johnson’s
    assertion that evidence of past abuse “does nothing” to assist the jury, this
    evidence allows the jury to evaluate Trichler’s credibility in the context of a
    relationship marked by domestic violence.
    Johnson also argues that our Supreme Court announced a domestic
    violence exception to ER 404(b) in Magers that was later rejected in Gunderson.
    17
    No. 83738-9-I/18
    We disagree. Magers did not announce a “domestic violence exception” and
    Gunderson did not reject the Magers plurality holding. Rather, Gunderson
    clarified the Magers plurality holding. The Gunderson court explained:
    In State v. Magers, we took great care to specifically establish that
    “evidence that [the defendant] had been arrested for domestic
    violence and fighting and that a no-contact order had been entered
    following his arrest was relevant to enable the jury to assess the
    credibility of [the complaining witness] who gave conflicting
    statements about [the defendant’s] conduct.”
    
    181 Wn.2d at 923-24
     (alterations in original) (quoting Magers, 
    164 Wn.2d at 186
    ). The court noted that unlike in Magers, the victim in Gunderson did not give
    any conflicting statements—there was only evidence from other sources that
    contradicted the victim’s account. 
    181 Wn.2d at 924
    . The court then explained
    the effect of Gunderson on Magers: “Accordingly, we decline to extend Magers to
    cases where there is no evidence of injuries to the alleged victim and the witness
    neither recants nor contradicts prior statements.” Gunderson, 
    181 Wn.2d at 925
    .
    And in a footnote, the court clarified that it was not announcing a domestic
    violence exception and rejected Johnson’s assertion that Magers stood for such
    a proposition: “The blanket extension of Magers proposed by the dissent would
    create a domestic violence exception for prior bad acts that is untethered to the
    rules of evidence.” Gunderson, 
    181 Wn.2d at
    925 n.3. In another footnote, the
    court clarified that its opinion “should not be read as confining the requisite
    overriding probative value exclusively to instances involving a recantation or an
    inconsistent account by a witness.” Gunderson, 
    181 Wn.2d at
    925 n.4.
    18
    No. 83738-9-I/19
    Here, there was evidence of injuries to Trichler and Trichler also
    contradicted her previous statements at trial. The rule set forth in Magers and
    Gunderson applies here; evidence of prior assaults was properly admitted for the
    jury to judge Trichler’s credibility in light of her inconsistent statements about the
    assault.
    3. Fourth Prong: Probative Value versus Prejudicial Effect
    Finally, Johnson argues that the probative value of the prior assault
    testimony is outweighed by its prejudicial effects. He also contends the jury
    relied on Trichler’s testimony as propensity evidence.
    This prong implicates ER 403. Ashley, 
    186 Wn.2d at 43
    . In domestic
    violence cases, “courts must be careful and methodical in weighing the probative
    value against the prejudicial effect of prior acts . . . because the risk of unfair
    prejudice is very high.” Gunderson, 
    181 Wn.2d at 925
    . “To guard against this
    heightened prejudicial effect, we confine the admissibility of prior acts of
    domestic violence to cases where the State has established their overriding
    probative value, such as to explain a witness’s otherwise inexplicable recantation
    or conflicting account of events.” Gunderson, 
    181 Wn.2d at 925
    .
    Here, the State succeeded in showing the overriding probative value of
    the evidence for credibility purposes because Trichler gave inconsistent
    statements about the abuse. She denied any abuse to various medical
    personnel but then later testified at trial that Johnson had assaulted her.
    Therefore, the court did not err in admitting the domestic violence evidence for
    credibility purposes. Cf. Gunderson, 
    181 Wn.2d at 925
     (court erred in admitting
    19
    No. 83738-9-I/20
    past domestic violence evidence where victim’s testimony before and at trial was
    consistent); Ashley, 
    186 Wn.2d at 47
     (court erred in admitting domestic violence
    evidence where trial testimony was consistent with prior statements to police).
    Johnson’s contention that the jury improperly relied on the evidence as
    propensity evidence is similarly unavailing. Johnson overlooks a limiting
    instruction that prohibited the jury from considering Trichler’s testimony for
    anything other than determining her credibility. Again, we presume juries follow
    instructions. Mohamed, 
    186 Wn.2d at 244
    .
    Exceptional Sentence
    Johnson contends that the court relied on an invalid factor in imposing an
    exceptional sentence and that it is unclear whether the court would have
    imposed the same sentence based on the remaining valid factors, requiring
    reversal. The State concedes that the court relied on an invalid factor, but
    asserts that the record makes clear that the court considered two other factors as
    independent bases for an exceptional sentence. We conclude the sentence is
    valid because, based on the court’s written findings, at least one other valid
    factor provided an independent basis for the exceptional sentence.
    A trial court may impose an exceptional sentence outside the standard
    range if it concludes that “there are substantial and compelling reasons justifying
    an exceptional sentence.” RCW 9.94A.535. Whenever the court imposes an
    exceptional sentence, it must set forth the reasons for its decision in written
    findings of fact and conclusions of law. RCW 9.94A.535. However, “ ‘[o]ther
    than the fact of a prior conviction, any fact that increases the penalty for a crime
    20
    No. 83738-9-I/21
    beyond the prescribed statutory maximum must be submitted to a jury, and
    proved beyond a reasonable doubt.’ ” Blakely v. Washington, 
    542 U.S. 296
    , 301,
    
    124 S. Ct. 2531
    , 
    159 L. Ed. 2d 403
     (2004) (quoting Apprendi v. New Jersey, 
    530 U.S. 466
    , 490, 
    120 S. Ct. 2348
    , 
    147 L. Ed. 2d 435
     (2000)). The statutory
    maximum is “the maximum sentence a judge may impose solely on the basis of
    the facts reflected in the jury verdict or admitted by the defendant.” Blakely, 
    542 U.S. at 303
     (emphasis omitted). Thus, any exceptional sentence that exceeds
    the statutory maximum is subject to the two Blakely requirements.
    On appeal, an exceptional sentence may be upheld “even where all but
    one of the trial court’s reasons for the sentence have been overturned.” State v.
    Gaines, 
    122 Wn.2d 502
    , 512, 
    859 P.2d 36
     (1993). Remand is necessary “where
    it is not clear whether the trial court would have imposed an exceptional sentence
    on the basis of only the one factor upheld.” Gaines, 
    122 Wn.2d at 512
    ; see also
    State v. Parker, 
    132 Wn.2d 182
    , 189, 
    937 P.2d 575
     (1997).
    Here, the court imposed an exceptional sentence based on three factors:
    (1) that Johnson reoffended shortly after being released from incarceration (the
    “rapid recidivism” aggravator); (2) that Johnson’s prior unscored criminal history
    resulted in a sentence that was clearly too lenient; and (3) that Johnson had
    committed multiple current offenses and his high offender score resulted in some
    of the current offenses going unpunished.7 RCW 9.94A.535(3)(t), (2)(b), (c). Of
    7 Though the State argues that the court did not conclude the sentence
    was “too lenient,” the court’s written conclusions of law say otherwise: “This court
    has discretion under RCW 9.94A.535(2)(b) & (c) to impose a sentence outside
    the standard range where the prior unscored criminal history results in a
    sentence that is clearly too lenient.” (Emphasis added.)
    21
    No. 83738-9-I/22
    the three factors, the first and the second require either a jury finding or a
    stipulation from the defendant. See RCW 9.94A.535(3)(t) (rapid recidivism factor
    must be considered by jury); State v. Saltz, 
    137 Wn. App. 576
    , 583-84, 
    154 P.3d 282
     (2007) (RCW 9.94A.535(2)(b) subject to Blakely requirements); cf. State v.
    Newlun, 
    142 Wn. App. 730
    , 742-43, 
    176 P.3d 529
     (2008) (RCW 9.94A.535(2)(c)
    does not require courts to look beyond facts reflected in jury verdict or admitted
    by defendant).
    Johnson asserts, and the State concedes, that the second factor—
    whether unscored crimes rendered the sentence “too lenient”—is invalid because
    the jury did not consider it and Johnson did not stipulate to facts supporting it.8
    Thus, the crux of the matter is whether, absent the invalid factor, the court clearly
    intended to impose an exceptional sentence. The record indicates that it would
    have. The court’s conclusions of law for an exceptional sentence list the first
    factor separately from the other two:
    1. The court has discretion under RCW 9.94A.535 to impose a
    sentence outside the standard range because the aggravating
    circumstance under RCW 9.94A.535(3)(t) has been pled and
    proved.
    8  Johnson also contends that the court did not make a finding that the
    presumptive sentence would be too lenient. Rather, he claims the court
    impermissibly invented a new aggravating factor based on the following finding:
    There are three prior unscored misdemeanor domestic violence
    court order violation convictions from 2011. These convictions are
    similar in character to the conduct alleged in count two, but do not
    alter the standard range for either count.
    Though the court did not use the words “too lenient” in this finding, it did use
    those words in its corresponding conclusion of law. And contrary to Johnson’s
    assertion, it appears the court was describing the “too lenient” factor, not creating
    a new factor.
    22
    No. 83738-9-I/23
    2. The court has discretion under RCW 9.94A.535(2)(b)&(c) to
    impose a sentence outside the standard range where the prior
    unscored criminal history results in a sentence that is clearly too
    lenient and where the defendant has committed multiple current
    offenses and the high offender score results in some offenses
    going unpunished.
    (Emphasis added.) The second conclusion of law does, admittedly, blur the lines
    between the second and third factors. But even absent these factors, the court’s
    first conclusion of law, determining that RCW 9.94A.535(3)(t) provides an
    independent basis to impose an exceptional sentence, and its division into a
    separate conclusion supports that the trial court would have relied on it alone.
    The court’s oral ruling at sentencing also supports this outcome. The
    court delineated factors one and three as bases for an exceptional sentence:
    The State has requested for an exceptional upward [sentence]
    based on, A, rapid recidivism, and B, the three crimes argument
    that the offender score is so high that the maximum doesn’t go up
    that high, and that he would be allowed basically to get away with a
    crime without some sort of punishment. Having taken all of this into
    consideration, I do find that there is grounds for an exceptional
    upward sentence.
    (Emphasis added.) We affirm the imposition of an exceptional sentence.9
    Constitutionality of Exceptional Sentences
    Johnson argues that the imposition of any exceptional sentence under the
    SRA (Sentencing Reform Act of 1981, ch. 9.94A RCW) violates the Sixth and
    Fourteenth Amendments to the United States Constitution because it requires
    the court to make a factual determination that facts found by the jury are
    9  Johnson also contends that the State failed to provide him notice of the
    “too lenient” aggravating factor. But as the court’s oral ruling makes clear, the
    State did not ask for this aggravating factor to be imposed—the court did it sua
    sponte.
    23
    No. 83738-9-I/24
    substantial and compelling reasons justifying an exceptional sentence. We
    disagree. This court previously addressed this same issue in State v. Sage, 1
    Wn. App. 2d 685, 
    407 P.3d 359
     (2017), and determined that this secondary
    inquiry is a legal one, not a factual one.
    The Sixth Amendment provides criminal defendants with a right to a jury
    trial. This right, in conjunction with the due process clause of the Fourteenth
    Amendment, requires that each element of a crime be proved to a jury beyond a
    reasonable doubt. Alleyne v. United States, 
    570 U.S. 99
    , 104, 
    133 S. Ct. 2151
    ,
    
    186 L. Ed. 2d 314
     (2013) (plurality opinion). As previously noted, “any fact that
    ‘expose[s] the defendant to a greater punishment than that authorized by the
    jury’s guilty verdict’ is an ‘element’ that must be submitted to the jury.” Hurst v.
    Florida, 
    577 U.S. 92
    , 97, 
    136 S. Ct. 616
    , 
    193 L. Ed. 2d 504
     (2016) (alteration in
    original) (quoting Apprendi, 
    530 U.S. at 494
    ).
    The imposition of an exceptional sentence under the SRA is a two-step
    process prescribed by statute. First, the jury must find “unanimously and beyond
    a reasonable doubt, one or more of the facts alleged by the state in support of an
    aggravated sentence” exist. RCW 9.94A.537(6). Then, the court may impose an
    exceptional sentence “if it finds, considering the purposes of this chapter, that the
    facts found [by the jury] are substantial and compelling reasons justifying an
    exceptional sentence.” RCW 9.94A.537(6) (emphasis added).
    This court previously addressed the constitutionality of the SRA’s
    exceptional sentencing scheme in the context of the Sixth and Fourteenth
    24
    No. 83738-9-I/25
    Amendments and concluded that it met due process requirements. Sage, 1 Wn.
    App. 2d at 710.
    Like Johnson, the defendant in Sage argued that the trial court engaged in
    prohibited fact-finding, in violation of his Sixth Amendment right to a jury trial, by
    concluding an exceptional sentence was warranted. This court disagreed,
    concluding that, despite the statute’s imprecise word choice,
    [t]he only permissible “finding of fact” by a sentencing judge on
    an exceptional sentence is to confirm that the jury has entered by
    special verdict its finding that an aggravating circumstance has
    been prove[d] beyond a reasonable doubt. Then it is up to the
    judge to make the legal, not factual, determination whether those
    aggravating circumstances are sufficiently substantial and
    compelling to warrant an exceptional sentence.
    1 Wn. App. 2d at 709 (emphasis added) (footnote omitted).
    Johnson’s argument that the SRA is akin to the Florida sentencing
    scheme deemed unconstitutional by the Supreme Court in Hurst is also rejected
    in Sage:
    But the Florida statute at issue expressly state[d] that the jury
    findings were “advisory.” [Former] FLA. STAT. § 921.141 (2010). By
    contrast, under Washington procedure here, the jury exclusively
    resolves the factual question whether the aggravating
    circumstances have been prove[d] beyond a reasonable doubt.
    1 Wn. App. 2d at 710 n.86.
    We reject Johnson’s constitutional argument and conclude that the court
    did not engage in impermissible fact finding by determining the jury’s findings
    supported an exceptional sentence.
    25
    No. 83738-9-I/26
    No-Contact Order Sentence
    Johnson argues the court erred by sentencing him to more time than
    statutorily permitted on the no-contact order violation. The State concedes that
    the court erred. We agree that the court erred and remand for the court to
    correct the sentence.
    RCW 9.94A.505(5) provides that, except in limited circumstances, the
    court may not impose a sentence that exceeds the statutory maximum for a
    given crime. Here, the statutory maximum on Johnson’s no-contact order
    violation was 60 months. RCW 7.105.450(5) (no-contact order violation is a
    class C felony); RCW 9A.20.021(1)(c) (statutory maximum for class C felony is 5
    years). Despite this, the court sentenced Johnson to 60 months of confinement
    and 12 months of community custody. This sentence clearly exceeds the
    statutory maximum and remand is warranted.
    We affirm Johnson’s convictions but remand for the court to resentence
    Johnson on the no-contact order violation conviction.
    WE CONCUR:
    26
    

Document Info

Docket Number: 83738-9

Filed Date: 1/2/2024

Precedential Status: Precedential

Modified Date: 1/2/2024