The State of Washington, Respondent, v. Dawn Marie Sullivan, Appellant

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
c=> _-< cz
STATE OF WASHINGTON, No. 73217-0-1
S3 p";
Respondent, (Consolidated with
c C~'
No. 73216-1-1)
v.
PUBLISHED OPINION 5?
DAWN MARIE SULLIVAN,
Appellant. FILED: October 10, 2016
Leach, J. — Dawn Sullivan appeals her conviction for second degree
assault. She challenges the trial court's refusal to excuse a juror who may have
known the complaining witness and its decisions to give a first aggressor jury
instruction and not to give a multiple assailants instruction. And she claims
prosecutorial misconduct in closing argument to which she did not object. We
reject each of these arguments. The record shows that the juror's possible
acquaintance with a witness did not affect the juror's ability to be fair and
impartial. The evidence at trial justified a first aggressor instruction. The trial
court's self-defense instructions allowed Sullivan to argue her defense theory,
and her multiple assailant instruction would have been cumulative. Finally, the
prosecutor's remark in closing reflected a reasonable inference from Sullivan's
testimony. Accordingly, we affirm Sullivan's conviction.
NO. 73217-0-1/2 (consol.
with No. 73216-1-l)/2
The State appeals Sullivan's sentence. It claims that the trial court had no
authority to sentence her to a community program instead of confinement or to
award credit for participation in that program toward her sentence. Because the
Sentencing Reform Act of 19811 and the Supreme Court's decision in State v.
Medina2 prohibit the sentence the trial court imposed, we remand for
resentencing.
FACTS
Dawn Sullivan cut Christopher Bohannon on the arm with a kitchen knife
during a quarrel in Bohannon's apartment. She had been staying there, off and
on, for about a month while she looked for a new place to live. The night of the
assault, Sullivan and Bohannon drank together at the apartment. After midnight,
Sullivan left and walked to a nearby area of bars in downtown Seattle. She met
Robert Cessill, a stranger, who was in town during a long layover and waiting at
a bus stop. She invited Cessill back to Bohannon's apartment. The three talked,
and Cessill and Bohannon drank, until Cessill fell asleep on the couch.
Sullivan asked to smoke some of Bohannon's medical marijuana. After he
refused, the two began to argue. Sullivan, Bohannon, and Cessill later gave
different accounts of what followed.
1 Ch. 9.94A RCW.
2 180 Wash. 2d 282, 324 P.3d 682 (2014).
NO. 73217-0-1/ 3 (consol.
with No. 73216-1-l)/3
According to Sullivan, Bohannon became furious and told her to leave.
She tried to rouse Cessill because "it would be rude" to bring over a guest and
then leave him there. Bohannon told her to let Cessill sleep. As she was
shaking Cessill's foot, Bohannon "pounced" on her, and the two rolled on the
floor. She did not see Cessill get off the couch, but she suddenly felt both men
on top of her on the floor. She was afraid because "people were putting their
hands on [her] body and holding [her] against [her] will for no reason." She
"wiggled out, jumped over the couch," ran to the kitchen, and grabbed a knife
from a magnetic strip. She felt she needed to defend herself, and the knife was
closer than the door. Bohannon grabbed her, and he and Cessill took the knife
from her within seconds. Bohannon then threw her out of the apartment. She
did not know she had cut him during the scuffle.
According to Bohannon, Sullivan was angry and announced she was
leaving. She pulled Cessill off the couch and told him, "[Y]ou're coming with me
or I'm going to punch you in the face." Bohannon intervened, telling her not to
punch anyone and that he wanted her to leave. As he led her toward the door,
Sullivan "ran across [him] the wrong way into the kitchen area." He followed her,
and she punched him in the nose multiple times. To this point, he had not
touched Sullivan except on the arms. He grabbed her wrists and pulled her to
NO. 73217-0-1/4 (consol.
with No. 73216-1-l)/4
her hands and knees, then put his hand on her back, trying to calm her down.
She stayed on the floor for 30 seconds to 2 minutes. Then she "twirled around
and got up and grabbed [Bohannon's] kitchen knife, [his] big one." Bohannon
grabbed at it, cutting his hand. Then Sullivan swung it down, cutting his wrist.
Bohannon again grabbed her wrists and pulled her down to all fours. She was
still holding the knife. At that point, Cessill got off the couch, grabbed Sullivan,
and pulled her backward onto the couch. Bohannon took the knife away. He
went to the kitchen, gathered up the other knives from the magnetic strip, took
them to his bedroom, and threw them onto the floor on the far side of his bed.
He saw that Cessill had made Sullivan pass out.
Similarly, Cessill testified that he woke up as Sullivan was standing over
him and saying, "I'm going to punch you in the face." Cessill opened his eyes,
and Sullivan told him he needed to leave immediately. Bohannon told Sullivan to
leave Cessill alone and that she needed to leave. She became more upset.
Bohannon and Sullivan argued very briefly, and then Sullivan went to the kitchen.
As Bohannon followed her, Sullivan came out with a knife. She backed
Bohannon against a wall and repeatedly slashed down with the knife, cutting his
arm.3 Cessill got up, grabbed Sullivan, and put her in a martial arts chokehold,
3 Cessill testified Sullivan never punched Bohannon but also indicated he
could not see them when they were in the kitchen.
-4-
NO. 73217-0-1/5 (consol.
with No. 73216-1-l)/5
causing her to pass out and drop the knife. Bohannon took the knives from the
kitchen and hid them. After a short time, Sullivan woke up and left.
The State charged Sullivan with second degree assault with a deadly
weapon.4 During Bohannon's testimony, a juror told the court he might know
Bohannon through mutual acquaintances. The court denied Sullivan's request to
excuse the juror for cause.
At the end of the trial, the court instructed the jury on self-defense. Over
Sullivan's objection, the court gave a first aggressor instruction informing the jury
that self-defense was not available if it found that Sullivan provoked the fight.
Also over Sullivan's objection, the trial court declined to give an instruction stating
that the amount of force necessary to defend one's self "may vary with the
number of persons the defendant reasonably believes are" threatening violence.
During closing arguments, the prosecutor asserted that Sullivan had
attempted to gamer the jury's sympathy by suggesting she had been "fearful of
some sort of sexual assault." Sullivan did not object.
The jury convicted Sullivan of second degree assault and found she was
armed with a deadly weapon.5 The trial court imposed an exceptional sentence
4RCW9A.36.021(1)(c).
5 RCW 9A.36.021(1)(c); RCW 9.94A.825.
-5-
NO. 73217-0-1/6 (consol.
with No. 73216-1-l)/6
of no jail time for the assault.6 It also allowed Sullivan to serve the mandatory
12-month deadly weapon enhancement7 in the King County Community Center
for Alternative Programs Enhanced (CCAP). Sullivan and the State both
appealed the judgment and sentence. This court consolidated the appeals.
ANALYSIS
Juror 9
First, Sullivan contends that the trial court denied her right to an impartial
jury by not excusing a juror who may have known Bohannon. During a break in
Bohannon's testimony, juror 9 told the trial court that he was "reasonably
confident" he had met Bohannon and believed they might have mutual friends.
He said he did not think they had ever had a conversation. He said they might
be friends on social media but could not recall having any exchanges on social
media either. He confirmed his uncertainty about actually knowing Bohannon.
The judge asked juror 9 whether anything about this possible connection would
make him concerned that it would be "awkward if [juror 9] didn't believe
[Bohannon]." The prosecutor asked if juror 9 could remember any interaction
with Bohannon and if their possible connection "would have any
6 The court based the exceptional sentence on RCW 9.94A.535(1)(a),
which allows for mitigating circumstances where "the victim was an initiator,
willing participant, aggressor, or provoker of the incident."
7 RCW 9.94A.533(4)(b).
-6-
NO. 73217-0-1/7 (consol.
with No. 73216-1-l)/7
impact. .. whatever on you just watching him and assessing his credibility and
his testimony as if it was anyone else." The juror answered "no" to each
question.
The United States and Washington Constitutions guarantee a defendant
the right to an impartial jury.8 A party may challenge a juror for cause.9 Ajudge
must excuse "any juror, who in the opinion of the judge, has manifested unfitness
as a juror," including "by reason of bias."10 When a party challenges a juror for
actual bias, even if the juror appears to have "formed or expressed an opinion
upon what he or she may have heard or read," to excuse the juror "the court
must be satisfied, from all the circumstances, that the juror cannot disregard such
opinion and try the issue impartially."11 "[T]he trial court is in the best position to
determine a juror's ability to be fair and impartial."12 This court reviews that
decision for abuse of discretion.13
Here, the trial court did not violate Sullivan's right to an impartial jury by
declining to excuse juror 9. While juror 9 believed he might have mutual friends
8 U.S. Const, amend. VI; Wash. Const, art. I, § 22.
9 CrR 6.4(c).
10 RCW 2.36.110; CrR 6.4(c).
11 RCW 4.44.190; see RCW 4.44.170(2) ("Actual bias" means "a state of
mind on the part of the juror in reference to the action, or to either party, which
satisfies the court that the challenged person cannot try the issue impartially and
without prejudice to the substantial rights of the party challenging.").
12 State v. Noltie, 116 Wash. 2d 831, 839, 809 P.2d 190(1991).
13 State v. Jorden, 103 Wash. App. 221, 226, 11 P.3d 866 (2000).
-7-
NO. 73217-0-1/8 (consol.
with No. 73216-1-l)/8
with Bohannon, he did not think they had ever had a conversation. He stated
that nothing about their possible connection would make him reluctant to
disbelieve Bohannon and that that connection would have no impact on his
assessment of Bohannon's credibility.
Even if juror 9 was confident that he recognized and had met Bohannon
and thought they shared mutual friends, those facts alone would not require the
court to excuse him. Nothing in the record indicates that the juror's potential
acquaintance with Bohannon affected his opinion of Bohannon's credibility. Even
if he had formed such an opinion, the trial court would need to be satisfied, from
all the circumstances, that juror 9 could not disregard his opinion and decide the
issue impartially.14 The trial court was in the best position to make this judgment.
The record affirmatively supports its decision that juror 9 could decide the case
impartially. Thus, the trial court did not abuse its discretion in declining to excuse
the juror.
First Aggressor Jury Instruction
Next, Sullivan contends that the trial court erred in giving the jury a first
aggressor instruction. The court instructed the jury on self-defense and, over
Sullivan's objection, instructed the jury, "[l]f you find beyond a reasonable doubt
that the defendant was the aggressor, and that defendant's acts and conduct
14 See RCW 4.44.190.
-8-
NO. 73217-0-1/9 (consol.
with No. 73216-1-l)/9
provoked or commenced the fight, then self-defense is not available as a
defense."
When the record includes credible evidence from which a reasonable juror
could find that the defendant provoked the need to act in self-defense, an
aggressor instruction is appropriate.15 Whether the State produced sufficient
evidence to justify an aggressor instruction presents a question of law we review
de novo.16 We view the evidence in the light most favorable to the party
requesting the instruction—here, the State.17
"[A]n aggressor or one who provokes an altercation" cannot successfully
invoke the right of self-defense.18 Although not favored, an aggressor instruction
is proper "'where (1) the jury can reasonably determine from the evidence that
the defendant provoked the fight, (2) the evidence conflicts as to whether the
defendant's conduct provoked the fight, or (3) the evidence shows that the
defendant made the first move by drawing a weapon.'"19 The provoking act must
be intentional conduct reasonably likely to provoke a belligerent response.20 It
15 State v. Riley, 137 Wash. 2d 904, 909-10, 976 P.2d 624 (1999);
Manzanares v. Playhouse Corp., 25 Wash. App. 905, 910,611 P.2d 797 (1980).
16 State v. Anderson, 144 Wash. App. 85, 89, 180 P.3d 885 (2008).
17 State v. Wingate, 155 Wash. 2d 817, 823 n.1, 122 P.3d 908 (2005).
18 Riley, 137 Wash. 2d at 909.
19 State v. Stark, 158 Wash. App. 952, 959, 244 P.3d 433 (2010) (quoting
Anderson, 144 Wash. App. at 89); Riley, 137 Wash. 2d at 909-10.
20 State v. Wasson, 54 Wash. App. 156, 159, 772 P.2d 1039 (1989).
-9-
NO. 73217-0-1/10 (consol.
with No. 73216-1-1)/10
cannot be words alone.21 And it cannot be the charged assault.22 But contrary to
Sullivan's assertions, the provoking act can be part of a "single course of
conduct" that leads to the assault.23
Sullivan contends that the trial court's first aggressor instruction here was
both incorrect and unsupported by the evidence. We disagree.
The instruction correctly stated the law. In State v. Wingate,24 the
Supreme Court approved an instruction with nearly identical wording to the
instruction here. Moreover, the instruction here is more specific and thus more
favorable to the defendant than the one in Wingate. It required the jury find an
"intentional violent act" rather than just an "intentional act."25 Sullivan relies on
State v. Arthur.26 But the instructions here and in Wingate are distinguishable
from those in Arthur. In Arthur, this court found an instruction that referred to a
defendant's "unlawful act" to be overly vague, allowing the jury to speculate
21 Riley, 137 Wash. 2d at 912-13.
22 State v. Kidd, 57 Wash. App. 95, 100, 786 P.2d 847 (1990).
23 Rather, "[i]t has long been established that the provoking act must also
be related to the eventual assault as to which self-defense is claimed." Wasson,
54 Wash. App. at 159. Sullivan cites decisions regarding double jeopardy and
unanimity instructions—both issues that are inapplicable here. See State v.
Villanueva-Gonzalez. 180 Wash. 2d 975, 985, 329 P.3d 78 (2014); State v.
Rodriguez, 187 Wash. App. 922, 937, 352 P.3d 200, review denied, 184 Wash. 2d
1011 (2015).
24 155 Wash. 2d 817, 821, 122 P.3d 908 (2005).
25 Wingate. 155 Wash. 2d at 821.
26 42 Wash. App. 120, 708 P.2d 1230 (1985).
-10-
NO. 73217-0-1/11 (consol.
with No. 73216-1-l)/11
about which act may have been unlawful. The court reasoned that an "unlawful
act" could encompass an accidental collision with the victim's car. This court
held that a trial court must direct an aggressor instruction toward intentional acts
that the jury could reasonably assume would provoke a belligerent response.27
The trial courts did precisely that here and in Wingate.
The evidence also supports the trial court's decision to give the first
aggressor instruction. The evidence meets at least two of the three justifications
for offering the instruction.28 First, Bohannon and Cessill's testimony conflicts
with Sullivan's about whether Sullivan's conduct provoked the fight. Both men
testified that Sullivan attempted to pull Cessill off the couch and threatened to
punch him, and Bohannon testified that Sullivan punched him in the face before
he or Cessill used force against her. While "words alone" cannot defeat a self-
defense claim, Sullivan combined her words with physical acts. Second, from
the same testimony, the jury could reasonably determine that Sullivan provoked
the fight. We therefore reject Sullivan's challenge to the aggressor instruction.
27 Arthur, 42 Wash. App. at 124-25.
28 See Stark, 158 Wash. App. at 959. As to the third justification, Sullivan
admits she was the first person to draw a weapon. But none of the witnesses
suggested that Sullivan was "ma[king] the first move" in doing so, as she and
Bohannon were already tussling in all three accounts.
-11-
NO. 73217-0-1/12 (consol.
with No. 73216-1-l)/12
Multiple Assailants Instruction
Sullivan also contends that the trial court should have given this instruction
that she proposed:
As it is within the realm of common experience that two or more
people are more likely to inflict injury than only one such person,
the amount of force that is necessary to prevent the infliction of
injury, and thus is not unlawful, may vary with the number of
persons the defendant reasonably believes are about to commit or
assist in an offense against a person.
We review de novo a trial court's refusal to give an instruction based on a
ruling on the law.29 Self-defense "instructions, read as a whole, must make the
relevant legal standard 'manifestly apparent to the average juror.'"30 Each side is
entitled to have the jury instructed on its theory of the case when some evidence
supports that theory.31 Failure to instruct on a defense theory when evidence
supports it is prejudicial error.32
In State v. Irons,33 this court held that the trial court's self-defense
instruction failed to "'make it manifestly clear to the jury that it could consider the
fact that Irons was faced with multiple assailants.'" Four people had surrounded
29 State v. Walker, 136 Wn.2d. 767, 772, 966 P.2d 883 (1998).
30 State v. Irons, 101 Wash. App. 544, 550, 4 P.3d 174 (2000) (internal
quotation marks omitted) (quoting State v. LeFaber, 128 Wash. 2d 896, 900, 913
P.2d 369 (1996)).
31 Rilev, 137 Wash. 2d at 908 n. 1.
32 State v. Williams, 132 Wash. 2d 248, 259-60, 937 P.2d 1052 (1997).
33 101 Wash. App. 544, 552, 4 P.3d 174 (2000).
-12-
NO. 73217-0-1/13 (consol.
with No. 73216-1-l)/13
Irons. He had reason to fear all four, but he proceeded to injure only one.34
Even so, the trial court instructed the jury that for Irons to succeed on a self-
defense claim, the jury had to find that Irons "'reasonably believed that the
victim intended to . . . inflict death or great personal injury; and .. . that there was
imminent danger of such harm being accomplished.'"35 This court found the
instruction allowed Irons to argue his theory of the case. But its inconsistency
with Irons's theory prejudiced his ability to present his "theory that he reasonably
believed he was in imminent danger of death or great personal injury from
multiple assailants—not just" the victim.36
Sullivan did not have to contend with any inconsistency. The trial court
instructed the jury that force is lawful when a person "reasonably believes that he
or she is about to be injured in preventing or attempting to prevent an offense
against the person, and when the force is not more than is necessary." Nothing
in this or other instructions limits the defendant's justification to a reasonable fear
of one person or eventual victims, as in Irons. Unlike Irons, Sullivan had the
opportunity to present her self-defense argument unimpeded by any inconsistent
34 Irons, 101 Wash. App. at 558-59.
35 Irons, 101 Wash. App. at 552 (alteration in original).
36 Irons, 101 Wash. App. at 559.
-13-
NO. 73217-0-1/14 (consol.
with No. 73216-1-l)/14
jury instructions. Instead, the trial court's instructions made the applicable self-
defense standard "manifestly apparent" to the jury.37
Sullivan contends that failure to give the instruction prejudiced her
because she was entitled to argue her theory and sufficient evidence supported
the instruction.38
This court evaluates each jury instruction "in the context of the instructions
as a whole."39 "It is not error to refuse to give a cumulative instruction or one
collateral to or repetitious of instructions already given."40
Sullivan's theory was self-defense, and the trial court instructed the jury on
that theory. Her testimony supports her theory that she was justified in defending
herself against both Bohannon and Cessill. But here a multiple assailant
instruction would have been cumulative of the trial court's other instructions. As
discussed above, the jury instructions adequately conveyed that Sullivan could
fear multiple assailants, including people she was not charged with injuring.
Because the trial court's self-defense instructions were sufficient and
allowed Sullivan to argue her theory of the case and because the proposed
37 Irons, 101 Wash. App. at 550.
38 See Williams, 132 Wash. 2d at 259.
39 State v. Benn. 120 Wash. 2d 631, 654-55, 845 P.2d 289 (1993).
40 Benn, 120 Wash. 2d at 655.
-14-
NO. 73217-0-1/15 (consol.
with No. 73216-1-l)/15
multiple assailant instruction was cumulative, we reject Sullivan's challenge to
the trial court's refusal to give that instruction.
Closing Arguments
Next, Sullivan contends that the prosecutor appealed to jurors' passions
and prejudices in asserting that Sullivan had implied she feared being sexually
assaulted.
When claiming prosecutorial misconduct, the defendant has the burden of
proving that the prosecutor's conduct was both improper and prejudicial.41 In
closing arguments, attorneys have "'latitude to argue the facts in evidence and
reasonable inferences.'"42 They may not, however, "urg[e] the jury to decide a
case based on evidence outside the record."43 And they may not make "[m]ere
appeals to the jury's passion or prejudice."44
If a prosecutor's statements are improper, then this court determines
whether those statements prejudiced the defendant.45 When, as here, the
defendant did not object at trial, the defendant waived any error unless the
misconduct was "so flagrant and ill intentioned that an instruction could not have
41 State v. Emery, 174 Wash. 2d 741, 756, 278 P.3d 653 (2012).
42 State v. Dhaliwal. 150 Wash. 2d 559, 577, 79 P.3d 432 (2003) (quoting
State v. Smith, 104 Wash. 2d 497, 510, 707 P.2d 1306 (1985)).
43 State v. Pierce, 169 Wash. App. 533, 553, 280 P.3d 1158 (2012).
44 State v. Gregory, 158 Wash. 2d 759, 808, 147 P.3d 1201 (2006).
45 Emery, 174 Wash. 2d at 760.
-15-
NO. 73217-0-1/16 (consol.
with No. 73216-1-l)/16
cured the resulting prejudice."46 "Under this heightened standard, the defendant
must show that (1) 'no curative instruction would have obviated any prejudicial
effect on the jury' and (2) the misconduct resulted in prejudice that 'had a
substantial likelihood of affecting the jury verdict.'"47 In short, this court asks,
"[H]as such a feeling of prejudice been engendered or located in the minds of the
jury as to prevent a [defendant] from having a fair trial?'"48
Here, in describing the fight, Sullivan testified,
A We were rolling around on the floor and next thing I
know I have a second boy on top of me. I—I don't know—I did not
see, I don't know why, I don't know how. But then I had two boys
on top of me.
A. I was terrified.
Q. And what were you terrified they might do to you?
A. I just knew that I was getting hurt. That's—that's all. And I
was scared and people were putting their hands on my body and
holding me against my will for no reason.
At other points in her testimony, Sullivan again referred to having "two
boys" "on top of me," and she spoke about her fears during the fight: "I was
46 Emery, 174 Wash. 2d at 760-61. This court focuses more on whether an
instruction could have cured the prejudice than whether the comments were
flagrant and ill intentioned. Emery, 174 Wash. 2d at 762.
47 Emery, 174 Wash. 2d at 761 (quoting State v. Thorgerson, 172 Wash. 2d 438,
455, 258 P.3d 43 (2011)).
48 Emery, 174 Wash. 2d at 762 (alteration in original) (quoting Slatterv v. City
of Seattle, 169 Wash. 144, 148, 13 P.2d 464 (1932)).
-16-
NO. 73217-0-1/17 (consol.
with No. 73216-1-l)/17
really scared. If I'm already getting beat up by two boys what's going to come
next, you know?"
Earlier in Sullivan's testimony, her counsel asked whether she and
Bohannon had a romantic relationship. Sullivan testified,
A. I woke up cuddled with him on the couch once, half dressed,
and I wasn't sure what happened because we were pretty drunk the
night before. And he's the one who informed that we had—had
sex. And I just kind of pretended it never happened and let it go.
He's—I'm not in any way, shape, or form romantically interested in
him.
Q. And you—you had just mentioned that time when you did
have—you were told you had a sexual—
A. I wasn't happy about it.
Q. Did you have—did you ever have a sexual encounter with
him any time besides that time?
A. No. No.
Q. And how long before this incident that we're—we've all been
talking about did that happen?
A. Maybe two weeks before this incident.
In closing, the prosecutor suggested that Sullivan had testified she was
"fearful of some sort of sexual assault" and argued that she had testified to the
two men "grabbing her body" because "she wants to have the strongest
emotional reaction," since "any kind of sexual assault is heinous."
-17-
NO. 73217-0-1/18 (consol.
with No. 73216-1-l)/18
We conclude that the prosecutor's argument reasonably characterized
Sullivan's testimony. In recounting the fight, Sullivan repeatedly mentioned her
fear at having "two boys" "on top of me," "putting their hands on my body." She
and her counsel both raised the question of where the situation would lead. This
account, combined with Sullivan's prior testimony that she regretted having sex
with Bohannon and would not have consented to it if she had been sober, make
it reasonable for the prosecutor to argue that she had implied she feared being
sexually assaulted. The prosecutor did not rely on facts outside the record or
appeal to the jury's passion or prejudice in suggesting that Sullivan wanted the
jury to "have the strongest emotional reaction."49 Rather, that argument fell
within the prosecutor's wide latitude to draw reasonable inferences from the
evidence. Because the argument was not improper, we do not need to decide
whether an instruction could have cured any prejudice that resulted.
49 The prosecutor's remarks are also less prejudicial on their face than
remarks Washington courts have found improper. See State v. Miles, 73 Wash. 2d
67, 69-70, 436 P.2d 198 (1968) (improper and prejudicial to admit hearsay
evidence alleging a plan by defendants to perpetrate a robbery like the one with
which they were charged); State v. Belgarde, 110 Wash. 2d 504, 506-07, 755 P.2d
174 (1988) (improper and prejudicial to describe American Indian defendant as a
leader of a "'deadly group of madmen'" and "'butchers, that killed
indiscriminately'"); State v. Claflin, 38 Wash. App. 847, 850, 690 P.2d 1186 (1984)
(improper and prejudicial to read "vivid and highly inflammatory" poem by
anonymous rape victim to jury during closing argument).
-18-
NO. 73217-0-1/19 (consol.
with No. 73216-1-l)/19
Appellate Costs
Finally, Sullivan asks this court to deny appellate costs should the State
prevail.
"The commissioner or clerk 'will' award costs to the State if the State is the
substantially prevailing party on review, 'unless the appellate court directs
otherwise in its decision terminating review.'"50 This court has discretion to
consider the issue of appellate costs when a party raises the issue in its brief.51
In State v. Sinclair,52 this court used its discretion to deny appellate costs
to the State where the defendant remained indigent and this court saw "no
realistic possibility," given that the defendant was 66 years old and received a
280 month prison sentence, that he would be able to pay appellate costs.
We decline to decide appellate costs at this stage. Sullivan's age and
length of sentence distinguish her from Sinclair. If the commissioner or court
clerk approves a cost bill from the State, RCW 10.73.160(4) allows the
sentencing court to remit costs if payment would "impose manifest hardship" on
Sullivan or her family.53
50 State v. Sinclair, 192 Wash. App. 380, 385-86, 367 P.3d 612 (quoting RAP
14.2), review denied, 185 Wash. 2d 1034 (2016).
51 Sinclair, 192 Wash. App. at 388-90.
52 192 Wash. App. 380, 393, 367 P.3d 612, review denied, 185 Wash. 2d 1034
(2016).
53 State v. Nolan, 98 Wash. App. 75, 79, 988 P.2d 473 (1999).
-19-
NO. 73217-0-1/20 (consol.
with No. 73216-1-1)/20
CCAP Sentence for Deadly Weapon Enhancement
The State contends, in a cross appeal, that the trial court did not have the
authority to sentence Sullivan to no time in confinement for the mandatory one-
year deadly weapon enhancement. The trial court instead sentenced her to one
year in King County's CCAP.
Second degree assault is a class B felony and a violent offense.54 Class
B felonies committed after 1995 with a deadly weapon other than a firearm carry
a mandatory one-year enhancement.55 When this enhancement applies, courts
must impose it "even if facts permit a departure from the standard range for the
underlying offense."56 "Notwithstanding any other provision of law," the
enhancement must "be served in total confinement."57 With exceptions not
applicable here, "'[t]otal confinement' means confinement inside the physical
boundaries of a facility or institution operated or utilized under contract by the
state or any other unit of government for twenty-four hours a day."58
54 RCW 9A.36.021(2)(a); RCW 9.94A.030(55)(a)(viii). Amendments to
RCW 9.94A.030, effective August 1, 2009, changed the numbering but not the
relevant content of the definitions.
55 RCW 9.94A.533(4)(b).
56 State v. Graham, 181 Wash. 2d 878, 884, 337 P.3d 319 (2014)
(interpreting RCW 9.94A.533).
57 RCW 9.94A.533(4)(e).
58 RCW 9.94A.030(52).
-20-
NO. 73217-0-1/21 (consol.
with No. 73216-1-l)/21
RCW 9.94A.680 allows for alternative sentencing for offenders with
sentences of one year or shorter. The only alternative that applies to violent
offenders allows that "[o]ne day of partial confinement may be substituted for one
day of total confinement."59
Here, the trial court imposed the mandatory one-year sentence for the
deadly weapon enhancement. That sentence must be served in total
confinement.60 Since RCW 9.94A.680(1) allows a sentencing court to substitute
partial confinement for total confinement, the trial court could sentence Sullivan
to one year of CCAP only if CCAP qualifies as "partial confinement."
As Sullivan concedes, the Supreme Court already decided, in State v.
Medina,61 that CCAP is not "partial confinement." Sullivan asks this court to
examine the statutory scheme to decide if the difference between her
circumstances and the defendant's in Medina justifies a departure from that
binding opinion. She suggests no distinctions, though, and we see none.
Medina prohibited the trial court from allowing Sullivan to satisfy the deadly
weapon enhancement with CCAP participation.
59RCW9.94A.680(1).
60 See RCW 9.94A.533(4)(e).
61 Medina, 180 Wash. 2d at 289 ("[W]e do not think that participation in the
educational, counseling, and service-oriented programs entailed in CCAP meets
the statutory definition of 'confinement.'").
-21-
NO. 73217-0-1/22 (consol.
with No. 73216-1-l)/22
Credit for Time Served in CCAP
The State also contends that the trial court could not credit Sullivan for
time she already served in CCAP toward the one-year deadly weapon sentence.
An offender sentenced to confinement has both a constitutional and a
statutory right to receive credit for time the offender served before sentencing.62
"[A] defendant's ineligibility for a particular type of partial confinement
postconviction is not relevant to the question of whether that defendant must be
credited for pretrial time served in that same type of partial confinement."63
RCW 9.94A.680(3) allows the court to credit the offender for time served
before sentencing "in an available county supervised community option." As
noted above, that provision applies only to "offenders convicted of nonviolent and
nonsex offenses."64 The Supreme Court confirmed, in Medina, that the statute
does not permit the community option for violent offenders.65 The trial court thus
exceeded its authority in crediting Sullivan for time served in CCAP toward her
one-year sentence for a violent offense.
62 State v. Speaks, 119 Wash. 2d 204, 206, 829 P.2d 1096 (1992); RCW
9.94A.505(6).
63 Medina, 180 Wash. 2d at 288 (citing Speaks, 119 Wash. 2d at 208).
64 RCW 9.94A.680(3).
65 Medina, 180 Wash. 2d at 290 (applying canon of expressio unius est
exclusio alterius). As the Supreme Court determined that the 2009 amendments
adding 9.94A.680(3) did not apply retroactively to Medina's crime, that portion of
the opinion is dicta. Nonetheless, we follow the Supreme Court's guidance.
-22-
NO. 73217-0-1/23 (consol.
with No. 73216-1-l)/23
Sullivan does not contest the State's statutory arguments. She
challenges, instead, the injustice, as a matter of policy, of sentencing her to
confinement because CCAP would better benefit her, her health, and the
community. She further notes the inherent inconsistency of sentencing her to 12
months for the deadly weapon enhancement while imposing 0 months for the
underlying crime due to Bohannon's partial culpability.
Whatever the trial court may have thought about the wisdom behind
imposing a mandatory year of confinementfor any crime committed with a deadly
weapon, Washington courts have "consistently held that the fixing of legal
punishments for criminal offenses is a legislative function."66 The legislature's
enactments prohibited the trial court from sentencing Sullivan to CCAP or
awarding her credit for time already spent in CCAP. We therefore vacate those
provisions and remand the case to the trial court for resentencing consistent with
this opinion.
66 State v. Ammons, 105 Wash. 2d 175, 180, 713 P.2d 719, 718 P.2d 796
(1986).
-23-
NO. 73217-0-1/24 (consol.
with No. 73216-1-l)/24
CONCLUSION
We affirm Sullivan's conviction and remand for resentencing.
A~J(.S
WE CONCUR:
\ '4fcb<&WLf ^
^ *>
-24-