State of Washington v. Donald Lee Dyson, Jr.

FILED
AUG 6,2015
In the Office of the Clerk of Court
W A State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
STATE OF WASHINGTON, )
) No. 32248-3-III
Respondent, )
)
v. )
)
DONALD LEE DYSON, JR., ) PUBLISHED IN PART OPINION
)
Appellant. )
FEARING, J. - A jury found Donald Dyson guilty of two counts of first degree
assault stemming from a bar parking lot fight. The jury also found by special verdict that
Dyson was armed with a deadly weapon during the commission of the assaults. Dyson
appeals his conviction and contends that the trial court: (l) violated his right to a public
trial, (2) incorrectly instructed the jury on the defmition of "deadly weapon," and,
(3) incorrectly instructed the jury on transferred intent. We affirm his conviction.
At sentencing, the trial court found Donald Dyson's conduct qualified for
imposition of the statutorily mandated five-year minimum term under RCW 9.94A.540
because the force employed by Dyson in committing the assaults could likely have
resulted in death. Therefore, the trial court ordered the mandatory minimum confinement
for each charge. On appeal, Dyson contends the judicial finding violated his right to a
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jury trial. Based on the recent United States Supreme Court decision in Alleyne v. United
States, U.S. 133 S. Ct. 2151,186 L. Ed. 2d 314 (2013), we agree. We vacate
Dyson's sentence and remand for resentencing.
FACTS
One evening Julie Rodriguez~Reeves invited Donald Dyson to party with friends
and her. Dyson accepted. Dyson, Rodriquez-Reeves, her roommate Jodi Morphis, and
her son's girlfriend Alyssa Bishop assembled at the Comer Club bar in Spokane at 8 p.m.
After an hour, the quartet moved to the Special K, another Spokane bar. At the Special
K, Dyson socialized with other patrons, including Arthur Ward. Dyson and others
imbibed until the bar closed. Morphis later testified she was "[p]retty sure that everyone
I was with was intoxicated." Report of Proceedings (RP) at 343.
When the Special K bartender announced closing time, Donald Dyson exited to
the parking lot, where he joined Julie Rodriguez-Reeves, Arthur Ward, and Alyssa
Bishop. In the parking lot, Spencer Schwartzenberger, another Special K patron, sat in
his Ford Explorer with music emitting from the vehicle's speaker system. Dyson enjoyed
the speakers' sound, chatted with Schwartzenberger, and eventually entered the passenger
seat of the Ford Explorer. After a brief conversation with Dyson, Schwartzenberger
called to his friend Chris Dailey that it was time to leave. Dailey ignored
Schwartzenberger's entreaty and continued to converse with Rodriguez-Reeves and Jodi
Morphis. Dyson overheard Dailey invite Rodriguez-Reeves to Dailey's home and, when
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she refused, Dailey called her crass names. Schwartzenberger confirmed that Dailey
uttered "choice words" during the interaction.
Donald Dyson took offense to Chris Dailey's comments to Julie Rodriquez-
Reeves, and one of the two men started an altercation. As the two men pushed and
shoved, Spencer Schwartzenberger exited his Explorer and sought to end the fight.
Schwartzenberger attempted to separate the two combatants by pushing them away from
each other. Dyson thought Schwartzenberger had joined the clash against him. Dyson
pulled and waved a knife so Schwartzenberger and Dailey would leave him alone. As he
"waved" his knife, Dyson stabbed Schwartzenberger in the throat in what
Schwartzenberger described as a "roundhouse-type motion." RP at 227. Dyson testified
at trial that someone shoved him from behind toward Schwartzenberger, and the shove
caused the wounding of Schwartzenberger.
After Donald Dyson stabbed Spencer Schwartzenberger, Arthur Ward tackled
Dyson. During the struggle, Ward tried to grab the knife from Dyson's hand and was
himself stabbed in the hand and cut on the temple. Dyson also twice punched Ward.
Dyson arose from the tackle and walked to a friend's son's house.
PROCEDURE
The State of Washington charged Donald Dyson with two counts of assault in the
first degree. One count covered the stabbing of Spencer Schwartzenberger and the other
count addressed the cutting of Arthur Ward. The State alleged that Dyson committed
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each assault with specific intent to inflict great bodily harm with a deadly weapon or by
any force or means likely to produce great bodily harm or death. The State sought a
deadly weapon sentencing enhancement for each count.
During voir dire, the trial court heard the State's for-cause challenge to a
venirewoman on the record at the judge's bench, out of the jury's hearing. The trial court
also conducted peremptory challenges on paper. Before addressing the challenge for
cause, the trial court commented to the jury:
THE COURT: Folks, at this point the attorneys have some work to
do in selecting the jury. They are going to work back and forth with a piece
of paper and indicate to me what their challenges are, and so forth.
This is a time strangely enough when you and I have to be present in
this room, but we don't really get to do anything. We are going to sit and
literally look at each other, as odd as that may seem.
If you have something with you that you would like to read, be it a
tablet or an actual whatever, go right ahead. Also, if you want to visit with
your neighbor, that is fine; just keep the noise as low as possible so the
attorneys can hear themselves think, and I will let them proceed.
MR. MARTIN [State's counsel]: Your Honor, do you want us to
approach for cause first?
THE COURT: Yes, you can do that.
(The following was held out of the hearing of the jury:)
THE COURT: As to cause?
MR. MARTIN: You, know, my only challenge for cause is 29. She
seemed to be the one most concerned about remaining fair. That is my only
challenge.
MR. DRESSLER [Defense counsel]: Your Honor, by the same
token she did indicate she thinks she could handle it. That is why I spoke
to both of them.
But I don't have challenges for cause.
THE COURT: All right. Appropriate to say -- I think her answer
wasn't clear enough regarding being fair in this particular case, but I don't
think she's there, so I'm going to strike her for cause.
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That will be the only strike for cause? All right.
RP at 170-72.
During trial, Donald Dyson anticipatorily objected to the State questioning a
Spokane police officer regarding the current location of Alyssa Bishop or Julie
Rodriguez-Reeves and whether either had cooperated in the investigation. The trial court
entertained argument from counsel concerning the objection during a sidebar conference
on the record but out of the hearing of the jury.
After closing arguments, the trial court instructed the jury on the two first degree
assault charges as follows:
To convict the defendant of the crime of assault in the first degree,
as charged in Count 1, each of the following elements of the crime must be
proved beyond a reasonable doubt:
(1) That on or about SEPTEMBER 8, 2012, the defendant assaulted
SPENCER SCHWARTZENBERGER;
(2) That the assault was committed with a deadly weapon or by a
force or means likely to produce great bodily harm or death;
(3) That the defendant acted with intent to inflict great bodily harm;
and
(4) That the acts occurred in the State of Washington.
Clerk's Papers (CP) at 85. The trial court submitted an identical instruction for the
second count of first degree assault involving Arthur Ward.
The court instructed the jury on the definition of "deadly weapon" as follows:
Deadly weapon also means any weapon, device, instrument or
article which under the circumstances in which it is used, attempted to be
used, or threatened to be used is readily capable of causing death or
substantial bodily harm.
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CP at 82 (emphasis added). This definition of deadly weapon also appeared as part of the
court's instruction on the deadly weapon special verdict with the following additional
language:
A knife having a blade longer than three inches is a deadly weapon.
Whether a knife having a blade less than three inches long is a deadly
weapon is a question of fact that is for you to decide.
CP at 95.
The State of Washington posited that Donald Dyson could be guilty of assaulting
Arthur Ward through the doctrine oftransferred intent. The State secured a jury
instruction on that theory that read:
If a person acts with intent to assault another, but the act harms a
third person, the actor is also deemed to have acted with intent to assault
the third person.
CP at 81. In overruling Dyson's objection to the transferred intent instruction, the trial
court ruled:
I think there is evidence, and I think that is -- if there is evidence in
the case that would allow this to be argued, each side is entitled to their
theory. And so regardless of what evidence may come in now, there is
some evidence in the trial that would allow that instruction. So I'm going
to allow that to stand.
RP at 645. During closing, the State explained the two theories under which the jury
could find Dyson guilty of assault as to both Schwartzenberger and Ward:
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But when you get down to intent, it is not essential in this case for
the [S]tate to prove that Mr. Dyson intentionally assaulted Arthur Ward for
you to find him guilty of assault in the first degree.
There's a legal theory that the [c]ourt instructed you on called
transferred intent. And what that means is, if you believe beyond a
reasonable doubt that Mr. Dyson was trying to get another shot in at Mr.
Schwartzenberger, like Mr. Ward described, and that he intended the great
bodily harm or to inflict more great bodily harm than he had already done,
but he instead assaults a second person -- in this case they call it a third
person -- and instead assaults somebody else, that the intent that he was
using towards Mr. Schwartzenberger transfers to make Mr. Ward a victim
in that case.
So if you find that Mr. Dyson intended to get Mr. Schwartzenberger
again, and instead got Mr. Ward, you can find him guilty of assault in the
first degree. Or, alternatively, you can take somewhat of what Mr. Dyson
was saying, that he was slashing backward as somebody was tackling him
to protect somebody else, and then he still intended great bodily harm by
going towards a person's face with a knife, coming very near to his eye.
RP at 760.
The jury found Donald Dyson guilty of both counts of assault in the first degree
and also found by special verdict that Dyson was armed with a deadly weapon during the
commission of the assaults. On the day of the announcement of the verdict, the clerk
filed the notes for both the for-cause challenge and the peremptory challenges.
At sentencing, the trial court checked a box on the sentencing form that read that
Donald Dyson used force or means likely to result in death or intended to kill. This
checkmark required the court to impose a mandatory minimum term of sixty months
incarceration for each count. In an oral ruling, the trial court commented that Dyson
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I
nearly killed Spencer Schwartzenberger in the assault. The trial court also remarked that
Arthur Ward suffered permanent and significant bodily and emotional injuries.
The trial court calculated Donald Dyson's sentencing range as 144-184 months for
the assault on Spencer Schwartzenberger and 117-147 months for the assault on Arthur
Ward. The trial court sentenced Donald Dyson to 140 months confinement for the
Schwartzenberger assault, 108 months for the Ward assault, and 24 months for the deadly
weapon sentencing enhancement for each count, for a total of 296 months of
confinement. The trial court also imposed a mandatory minimum sentence of five years
for each count to be served consecutively.
LA W AND ANALYSIS
On appeal, Donald Dyson seeks a new trial on the ground that the trial court
violated his public trial rights and committed instructional error. Dyson also contends the
trial court violated his constitutional right to trial by jury by imposing a mandatory
minimum sentence. Since we publish only that portion of our opinion addressing the
mandatory minimum sentence, we discuss that issue first.
Issue 1: Whether the trial court violated Donald Dyson's right to a jury trial when
imposing a mandatory minimum sentence?
Answer 1: Yes.
Donald Dyson contends that the trial court violated his right to a jury trial under
the United States Constitution's Sixth Amendment by finding at sentencing the facts
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necessary to warrant imposing a mandatory minimum sentence of five years for each of
his first degree assault convictions. He argues that a recent United States Supreme Court
decision, Alleyne v. United States, 133 S. Ct. 2151 (2013), holds that any factual finding
required to trigger a mandatory minimum sentence constitutes an element of the crime
and therefore must be submitted to a jury. The State of Washington concedes error in the
imposition of the mandatory minimum sentence by judicial finding. We agree with both
parties and remand for resentencing.
Errors implicating a criminal defendant's Sixth Amendment right to a jury trial
may be raised for the first time on appeal. State v. Hughes, 154 Wash. 2d 118, 143, 110
P.3d 192 (2005), abrogated on other grounds by Washington v. Recuenco, 548 U.S. 212,
126 S. Ct. 2546, 165 L. Ed. 2d 466 (2006); State v. O'Connell, 137 Wash. App. 81, 89, 152
P.3d 349 (2007). Whether a sentence is legally erroneous is reviewed de novo. In re
Pers. Restraint ofBrooks, 166 Wn.2d 664,667,211 P.3d 1023 (2009).
The Sixth Amendment guarantees a criminal defendant the right to an impartial
JUry. Article I, section 21 of the Washington Constitution similarly provides, in relevant
part, that "[t]he right of trial by jury shall remain inviolate." The jury serves as an
intermediary between the State and a judge as an agent of the State, on the one hand, and
the criminal defendant, on the other hand. United States V. Gaudin, 515 U.S. 506, 510­
11, 115 S. Ct. 2310, 132 L. Ed. 2d 444 (1995). The right to a jury trial is a great bulwark
of civil and political liberties. Alleyne V. United States, _ U.S. _, 133 S. Ct. at 2161
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(2013). When coupled with the command of the due process clause of the Fourteenth
Amendment, the Sixth Amendment demands that an impartial jury find beyond a
reasonable doubt all elements of the charged offense for the defendant to be convicted.
Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000);
In re Winship, 397 U.S. 358, 364, 90 S. Ct. 1068,25 L. Ed. 2d 368 (1970).
State legislatures, including the Washington legislature, have enacted numerous
sentencing mandates, factors, and enhancements that impact the punishment meted on a
convicted defendant. In tum, legislatures and courts seek to distinguish between offenses
and sentencing features, with the fact-finding for the crime relegated to a jury and the
fact-finding for the punishment assigned to a judge. Under this distinction, a sentencing
factor is not an element of the crime. Yet no principled basis exists for treating a fact
increasing the term of the imprisonment differently than the facts constituting the base
offense. Alleyne, 133 S. Ct. at 2157. The end result is the same. As the title to Fyodor
Doestoevsky's novel suggests, crime and punishment go together.
Under the common law at the time of the adoption of the United States Bill of
Rights, a fact essential to the penalty was an element of the crime. Alleyne v. United
States, 133 S. Ct. at 2159. Therefore, other than the fact ofa prior conviction, any fact
that increases the penalty for a crime beyond the prescribed statutory maximum must be
submitted to a jury and proved beyond a reasonable doubt. Apprendi v. New Jersey, 530
U.S. at 490. The term "statutory maximum" means the maximum sentence a judge may
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impose based solely on the jury's verdict without making any additional findings.
Blakely v. Washington, 542 U.S. 296, 303-04, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004).
Therefore, any fact supporting a sentencing enhancement must be either admitted by a
defendant or found by the jury. Blakely, 542 U.S. at 304.
The U.S. Supreme Court recently clarified the holding of Apprendi as also
applying to a trial court's imposition of a mandatory minimum sentence. Alleyne v.
United States, 133 S. Ct. at 2160. Any fact that, by law, increases the penalty for a crime
is an "element" that must be submitted to the jury and found beyond a reasonable doubt.
Apprendi, 530 U.S. at 483 n.l0. Mandatory minimum sentences increase the penalty of
the crime. Alleyne, 133 S. Ct. at 2155. Like a maximum sentence, the minimum
sentence is intended to and does dictate the amount of time spent confined. Because
"facts increasing the legally prescribed floor aggravate the punishment ... the fact
necessarily forms a constituent part of a new offense and must be submitted to the jury."
Alleyne, 133 S. Ct. at 2161-62. Alleyne overruled Harris v. United States, 536 U.S. 545,
122 S. Ct. 2406, 153 L. Ed. 2d 524 (2002), in which the high Court held permissible
judicial fact-finding that increased the mandatory minimum sentence for a crime. In
fairness to the trial court, the Supreme Court decided Alleyne after the sentencing of
Donald Dyson.
RCW 9.94A.540, Washington's mandatory minimum sentencing statute,
prescribes, in relevant part:
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(1) Except to the extent provided in subsection (3) of this section,
the following minimum terms of total confinement are mandatory ...
(b) An offender convicted of the crime of assault in the first degree
... where the offender used force or means likely to result in death or
intended to kill the victim shall be sentenced to a term of total confinement
not less than five years.
(2) During such minimum terms of total confinement, no offender
subject to the provisions of this section is eligible for community custody,
earned release time, furlough, home detention, partial confinement, work
crew, work release, or any other form of early release authorized under
RCW 9.94A.728, or any other form of authorized leave of absence from the
correctional facility while not in the direct custody of a corrections officer.
(Emphasis added.)
Under RCW 9A.36.011(1)(a), a jury, in order to find a defendant guilty of assault
in the first degree, must find beyond a reasonable doubt that the defendant assaulted
another person "with a firearm or any deadly weapon or by any force or means likely to
produce great bodily harm or death." (Emphasis added.) RCW 9.94A.540 requires
additional evidence to impose the mandatory minimum sentence. Under the latter statute,
the defendant must have employed force likely to result in death or intended to kill, not
simply force likely to cause great bodily harm. Therefore, Washington courts have held
that RCW 9.94A.540's five-year mandatory minimum does not automatically attach to a
first degree assault conviction. In re Pers. Restraint ofBuy Khac Tran, 154 Wash. 2d 323,
329-30, III P.3d 1168 (2005); State v. McChristian, 158 Wn. App. 392,402-03,241
P.3d 468 (2010). The lack of direct overlap between the assault and mandatory minimum
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statutes indicates that the legislature intended to increase the punitive requirement for
certain assaults that are characterized by unusually, within the universe of assaults,
violent acts or accompanied by a particularly sinister intent. Tran, 154 Wash. 2d at 329-30.
Thus, the imposition of the mandatory minimum necessarily requires a separate factual
finding beyond the jury's finding of guilt of first degree assault. McChristian, 158 Wn.
App. at 403.
Prior to Alleyne v. United States, this court held that Blakely v. Washington did not
require that a jury make findings requisite to a mandatory minimum sentence.
McChristian, 158 Wash. App. at 403. Judicial findings were sufficient under the Sixth
Amendment so long as a "mandatory minimum sentence did not increase the penalty for
first degree assault beyond the statutory maximum standard range sentence."
McChristian, 158 Wash. App. at 404. In so reasoning, this court analogized McChristian's
case with a Washington Supreme Court case that held Blakely did not apply to
exceptional minimum sentences under former RCW 9.94A.712 (2005) that do not exceed
the maximum sentence allowed. McChristian, 158 Wash. App. at 403.
In Alleyne v. United States, the United States Supreme Court held that the Sixth
Amendment required a jury to find beyond a reasonable doubt all of the facts necessary
for a trial court to impose a mandatory minimum sentence on Allen Ryan Alleyne for
using a firearm in relation to a crime of violence. The relevant statute imposed a seven-
year mandatory minimum if Alleyne brandished the firearm during the crime. Although
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the jury found that Alleyne used a firearm during the crime, it made no finding that he
brandished the weapon. The district court found that evidence supported a finding of
brandishing and sentenced Alleyne accordingly. The Supreme Court reversed. The high
Court clarified that the principle announced in Apprendi applies with equal force to facts
increasing the mandatory minimum. Alleyne, 133 S. Ct. at 2160. Therefore, a jury must
find beyond a reasonable doubt those facts that trigger a mandatory minimum sentence.
Alleyne, 133 S. Ct. at2161.
In the case on appeal, the trial court, rather than the jury, found the facts necessary
to impose a mandatory five-year minimum sentence on Donald Dyson for each of his two
convictions for first degree assault. The jury's guilty verdict alone was not enough to
find that Washington's five-year mandatory minimum should apply. Under Alleyne, the
trial court should have submitted a separate instruction to the jury regarding the
applicability of the five-year mandatory minimum to each of Dyson's first degree assault
convictions. The mandatory floor of Dyson's sentence was as important to him as its
ceiling. Contrary to the perception of the dissent, the error is not harmless since the trial
court's fact-finding could lead to Dyson missing early release and, conversely, serving a
longer imprisonment.
Later in this opinion, we affirm the convictions of Donald Dyson. Nevertheless,
we remand for resentencing with instructions that the trial court remove the mandatory
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minimum sentences for each crime. The resentencing will allow Donald Dyson to
receive potential early release credits.
We vacate Donald Dyson's sentence and remand for resentencing. In the
unpublished portion of this opinion we affirm Dyson's conviction.
The remainder of this opinion has no precedential value. Therefore, it will be filed
for public record in accordance with RCW 2.06.040, the rules governing unpublished
opmIOns.
Issue 2: Did the trial court violate Donald Dyson's right to a public trial?
Answer 2: No.
Donald Dyson contends the trial court violated his right to a public trial when it
allowed the for-cause challenge at sidebar and peremptory challenges by written notes.
He also contends the trial court violated this right when it ruled on an evidentiary
objection during a sidebar conference. We disagree. All three of Dyson's claimed
violations of his right collapse under a spate of recent Washington decisions.
Washington's constitution guarantees both the public and the accused a right to the
open administration ofjustice. Article I, section 10 of the Washington Constitution
reads, "Justice in all cases shall be administered openly, and without unnecessary delay."
This provision entitles the public and the press, as representatives of the public, to openly
administered justice. Allied Daily Newspapers o/Wash. v. Eikenberry, 121 Wash. 2d 205,
209, 848 P.2d 1258 (1993); Cohen v. Everett City Council, 85 Wn.2d 385,388, 535 P.2d
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801 (1975). Moreover, article I, section 22 of the Washington Constitution provides, in
pertinent part, "In criminal prosecutions the accused shall have the right to ... a speedy
public trial."
The threshold determination when addressing an alleged violation of the public
trial right is whether the event at issue even implicates the right. State v. Sublett, 176
Wash. 2d 58, 71,292 P.3d 715 (2012). In Sublett, 176 Wash. 2d at 72-73, our Supreme Court
adopted a two-part "experience and logic" test to address this issue: (1) whether the place
and process historically have been open to the press and general public, the experience
prong; and (2) whether the public access plays a significant positive role in the
functioning of a particular process in question, the logic prong. State v. Dunn, 180 Wn.
App. 570, 574-75, 321 P.3d 1283 (2014), review denied, 181 Wn.2d 1030,340 P.3d 228
(2015). Both questions must be answered affirmatively to implicate the public trial right.
Sublett, 176 Wash. 2d at 73.
The Supreme Court recently approved sidebar conferences for juror challenges for
cause and paper challenges for preemptory jury strikes. State v. Love, No. 89619-4
(Wash. July 16,2015). Our high court held that these two practices did not amount to a
courtroom closure. The court wrote:
The public's presence in the courtroom reminds those involved
about the importance of their roles and holds them accountable for
misconduct. Effective public oversight of the fairness of a particular trial
begins with assurance of the fairness of the particular jury.
Yet the public had ample opportunity to oversee the selection of
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Love's jury because no portion ofthe process was concealed from the
public; no juror was questioned in chambers. To the contrary, observers
could watch the trial judge and counsel ask questions of potential jurors,
listen to the answers to those questions, see counsel exercise challenges at
the bench and on paper, and ultimately evaluate the empaneled jury. The
transcript of the discussion about for cause challenges and the struck juror
sheet showing the peremptory challenges are both publically available. The
public was present for and could scrutinize the selection of Love's jury
from start to finish, affording him the safeguards of the public trial right
missing in cases where we found closures ofjury section. We hold the
procedures used at Love's trial comport with the minimum guarantees of
the public trial right and find no closure here.
Although Love argues for a broad rule that all peremptory
challenges must be spoken aloud, written peremptory challenges are
consistent with the public trial right so long as they are filed in the public
record. Spoken peremptory challenges certainly increase the transparency
ofjury selection, but there are still legitimate methods of challenging jurors
in writing, like the practice here, that do not amount to a courtroom closure
because they are made in open court, on the record, and subject to public
scrutiny.
State v. Love, slip op. at 8-9 (citations omitted).
The voir dire procedures about which Donald Dyson complains are identical to the
procedures employed in State v. Love. As in Love, the trial court did not offend Dyson's
right to a public trial.
The sidebar evidentiary conference, to which Donald Dyson assigns error, also
does not implicate his right to a public trial. Recently, a plurality of our state high court
held that sidebar conferences to address evidentiary questions did not violate a
defendant's right to a public trial. State v. Smith, 181 Wn.2d 508,515,334 P.3d 1049
(2014). In Smith, four of our Supreme Court justices held that sidebar discussions and
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rulings on evidentiary objections did not, under the experience and logic test, implicate
William Glen Smith's right to a public trial. Smith, 181 Wash. 2d at 521. Justice Wiggins
concurred in the result, but urged the court to dispose of the experience and logic test in
favor of a test that presumes all trial proceedings are open and requires the trial court to
conduct a State v. Bone-Club, 128 Wn.2d 254,906 P.2d 325 (1995), analysis prior to
closing any proceedings. Smith, 181 Wash. 2d at 522 (Wiggins, J., concurring in result).
Justice Wiggins based his concurrence on Smith's failure to object to the closures at trial,
which Wiggins thought should preclude appellate review under RAP 2.5( a). Smith, 181
Wash. 2d at 538 (Wiggins, 1., concurring in reSUlt). Ifwe followed Justice Wiggins'
concurrence, we would refuse to address Donald Dyson's challenge on appeal.
Issue 3: Did the trial court err in its instruction to the jury on the definition of
"deadly weapon?"
Answer 3: We decline to address this issue since Donald Dyson did not object to
the jury instruction at trial and the assignment oferror is not one ofmanifest
constitutional error.
Donald Dyson next contends that the trial court erred in its instruction to the jury
defining "deadly weapon" as applied to both the first degree assault charge and the
deadly weapon special verdict. He argues that the presence of the word "also" in the
definition frees the jury to supply other, unspecified definitions for the deadly weapon
element of assault and thus dilutes the State's burden of proof by allowing the jury to
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convict on bases broader than the law allows. To repeat, the jury instruction read:
Deadly weapon also means any weapon, device, instrument or
article which under the circumstances in which it is used, attempted to be
used, or threatened to be used is readily capable of causing death or
substantial bodily harm.
CP at 82 (emphasis added).
Donald Dyson concedes that he did not object to the jury instruction's definition
of deadly weapon at trial. He argues that this reviewing court may still review the issue
because inclusion of the word "also" amounts to a manifest error affecting a
constitutional right. We do not agree, and thus we decline to review this assignment of
error.
RAP 2.5(a) provides, in relevant part:
The appellate court may refuse to review any claim of error which
was not raised in the trial court. However, a party may raise the following
claimed errors for the first time in the appellate court ... (3) manifest error
affecting a constitutional right.
RAP 2.5(a) formalizes a fundamental principle of appellate review. No procedural
principle is more familiar than that a constitutional right, or a right of any other sort, may
be forfeited in criminal cases by the failure to make timely assertion of the right before a
tribunal having jurisdiction to determine it. United States v. Olano, 507 U.S. 725, 731,
113 S. Ct. 1770, 123 L. Ed. 2d 508 (1993); Yakus v. United States, 321 U.S. 414, 444,64
S. Ct. 660, 88 L. Ed. 834 (1944).
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Good sense lies behind the requirement that arguments be first asserted at triaL
The prerequisite affords the trial court an opportunity to rule correctly on a matter before
it can be presented on appeal. State v. Strine, 176 Wash. 2d 742, 749, 293 P.3d 1177
(2013). There is great potential for abuse when a party does not raise an issue below
because a party so situated could simply lie back, not allowing the trial court to avoid the
potential prejudice, gamble on the verdict, and then seek a new trial on appeal. State v.
Weber, 159 Wash. 2d 252, 271-72, 149 P.3d 646 (2006); State v. Emery, 174 Wash. 2d 741,
762,278 P.3d 653 (2012). The theory of preservation by timely objection also addresses
several other concerns. The rule serves the goal ofjudicial economy by enabling trial
courts to correct mistakes and thereby obviate the needless expense of appellate review
and further trials, facilitates appellate review by ensuring that a complete record of the
issues will be available, and prevents adversarial unfairness by ensuring that the
prevailing party is not deprived of victory by claimed errors that he had no opportunity to
address. State v. Strine, 176 Wash. 2d at 749-50; State v. Scott, 110 Wn.2d 682,688, 757
P.2d 492 (1988).
Countervailing policies support allowing an argument to be raised for the first time
on appeal. For this reason, RAP 2.5(a) contains a number of exceptions. RAP 2.5(a)(3)
allows an appellant to raise for the first time a "manifest error affecting a constitutional
right," an exception on which a criminal appellant commonly relies. Constitutional errors
are treated specially under RAP 2.5(a) because they often result in serious injustice to the
20
No. 32248-3-III
State v. Dyson, Jr.
accused and may adversely affect public perceptions of the fairness and integrity of
judicial proceedings. State v. Scott, 110 Wash. 2d at 686-87. Prohibiting all constitutional
errors from being raised for the first time on appeal would result in unjust imprisonment.
State v. Lynn, 67 Wash. App. 339, 344, 835 P.2d 251 (1992). On the other hand,
"permitting every possible constitutional error to be raised for the first time on appeal
undermines the trial process, generates unnecessary appeals, creates undesirable retrials
and is wasteful of the limited resources of prosecutors, public defenders and courts"
State v. Lynn, 67 Wash. App. at 344.
Washington courts and even decisions internally have announced differing
formulations for "manifest error." First, a manifest error is one "truly of constitutional
magnitude." State v. Scott, 110 Wash. 2d at 688. Second, perhaps perverting the term
"manifest," some decisions emphasize prejudice, not obviousness. The defendant must
identity a constitutional error and show how, in the context of the trial, the alleged error
actually affected the defendant's rights. It is this showing of actual prejudice that makes
the error "manifest," allowing appellate review. State v. O'Hara, 167 Wn.2d 91,99,217
PJd 756 (2009); Scott, 110 Wash. 2d at 688; Lynn, 67 Wash. App. at 346. A third
formulation is the facts necessary to adjudicate the claimed error must be in the record on
appeaL State v. McFarland, 127 Wash. 2d 322, 333, 899P.2d 1251 (1995); State v. Riley,
121 Wn.2d 22,31, 846 P.2d 1365 (1993).
Although Donald Dyson contends that the inclusion of the word "also" in the trial
21
No. 32248-3-III
State v. Dyson, Jr.
court's instruction defining deadly weapon amounts to a manifest constitutional error,
Washington law holds otherwise. A trial court's failure to include the full statutory
definition of a legal term of art in a jury instruction does not constitute manifest
constitutional error, so long as that omission does not relieve the State of its burden to
prove all elements of the charged crime beyond a reasonable doubt. State v. 0 'Hara, 167
Wash. 2d at 104. When the State's burden remains unchanged, the instruction cannot be
challenged for the first time on appeal. O'Hara, 167 Wash. 2d at 108.
Although State v. 0 'Hara addressed incomplete, rather than extraneous, language
in a definitional jury instruction, its reasoning applies equally to this case. In 0 'Hara,
our Supreme Court held that a trial court's inclusion of only part of the statutory
definition of "malice" in its jury instruction did not constitute an error of constitutional
dimension. In so holding, our high court noted the constitution only requires the jury be
instructed as to each element of the offense charged and the failure of the trial court to
further define one of those elements is not within the ambit of the constitutional rule.
The Court further explained that the error was not manifest because "the omission did not
create practical and identifiable consequences during the trial that should have been
obvious to the trial court." O'H(1ra, 167 Wash. 2d at 108.
As in 0 'Hara, the error alleged by Donald Dyson is neither constitutional, nor
manifest. First, the trial court properly instructed the jury on the elements of first degree
assault. The State was still required to prove "the assault was committed with a deadly
22
No. 32248-3-III
State v. Dyson, Jr.
weapon or by a force or means likely to produce great bodily harm or death" beyond a
reasonable doubt. CP at 85-86. Dyson provides no evidence that the mere presence of
the word "also" effectively diluted the State's burden of proof such that it violated
Dyson's due process rights. There is no constitutional error here.
Second, Donald Dyson points to no practical or identifiable consequences caused
by the inclusion of the word "also" in the trial court's definition of deadly weapon. The
undisputed facts established that Dyson employed a knife when fighting with Chris
Dailey and Spencer Schwartzenberger. No witness mentioned any other weapon as
involved in the assault.
Issue 4: Did the trial court's instruction on transferred intent misstate the law and
dilute the State's burden ofproof!
Answer 4: No.
Donald Dyson contends that the trial court's instruction to the jury on transferred
intent similarly misstated the law and diluted the State's burden of proof. He argues that
Washington's first degree assault statute, RCW 9A.36.011, and not the doctrine of
transferred intent, dictates criminal liability for harm to an unintended victim of an
intentional assault. The State responds that the trial court did not err in giving an
instruction on transferred intent because the "to convict" instruction required the State
prove the requisite specific intent to inflict great bodily harm on both Spencer
Schwartzenberger and Arthur Ward. We agree with the State.
23
No. 32248-3-II1
State v. Dyson, Jr.
Washington's first degree assault statute provides:
(1) A person is guilty of assault in the first degree if he or she, with
intent to inflict great bodily harm:
(a) Assaults another with a firearm or any deadly weapon or by any
force or means likely to produce great bodily harm or death; or
(b) Administers, exposes, or transmits to or causes to be taken by
another, poison, the human immunodeficiency virus as defined in chapter
70.24 RCW, or any other destructive or noxious substance; or
(c) Assaults another and inflicts great bodily harm.
(2) Assault in the first degree is a class A felony.
RCW 9A.36.0l1. Washington's criminal code omits a definition of "assault," so
Washington courts have adopted a common law definition that recognizes assault as:
(1) an attempt, with unlawful force, to inflict bodily injury upon
another [attempted battery]; (2) an unlawful touching with criminal intent
[actual battery]; and (3) putting another in apprehension of harm whether or
not the actor intends to inflict or is capable of inflicting that harm [common
law assault].
State v. Wilson, 125 Wn.2d 212,218,883 P.2d 320 (1994) (quoting State v. Bland, 71
Wash. App. 345, 353, 860 P.2d 1046 (1993)).
At the conclusion of Donald Dyson's trial, the trial court instructed the jury on the
second form of assault: "An assault is an intentional touching or striking or cutting of
another person, with unlawful force, that is harmful or offensive." CP at 79. The jury
also received separate instructions on the elements of first degree assault for both Spencer
Schwartzenberger and Arthur Ward.
Donald Dyson argues that the mere presence of the trial court's instruction on
transferred intent lowered the State's standard of proof because the jury could find him
24
No. 32248-3-111
State v. Dyson, Jr.
guilty of assaulting Arthur Ward by virtue of finding that Dyson intentionally assaulted
Spencer Schwartzenberger. In forwarding this argument, Dyson misapprehends State v.
Wilson, the case on which he centrally relies.
In Wilson, our Supreme Court interpreted RCW 9A.36.0 11 and determined that
the language of the statute provides that any unintended victim is assaulted ifhe falls
within the terms and conditions of the statute. In tum, our high court reversed the Court
of Appeals' vacation of two counts of first degree assault against Mark Wilson.
Mark Wilson, after arguing with and threatening the bartender of Silverdale's Old
Town Tavern and another patron, fired several bullets into the bar's window. The bullets
struck two other individuals inside the drinking establishment. A jury found Wilson
guilty of four counts of first degree assault: two counts for Wilson's unintended victims
and two counts for Wilson's intended victims, the bartender and other patron. This court
vacated the two convictions against the unintended victims and ruled that transferred
intent did not apply under Washington's assault statute if a defendant successfully
assaulted his intended victim. This court further ruled that the State must prove specific
intent for unintended victims in such a circumstance.
In Wilson, our Supreme Court reversed this court and wrote:
Assault in the first degree requires a specific intent; but it does not,
under all circumstances, require that the specific intent match a specific
victim. Consequently, once the intent to inflict great bodily harm is
established, usually by proving that the defendant intended to inflict great
25
No. 32248-3-II1
State v. Dyson, Jr.
bodily harm on a specific person, the mens rea is transferred under RCW
9A.36.011 to any unintended victim.
125 Wash. 2d at 218. Our state high court noted that the doctrine of transferred intent was
unnecessary for Jiability to attach for harm to a defendant's unintended victims. Wilson
125 Wash. 2d at 219.
Wilson sanctions the State's advancement of alternate theories under which the
jury could find the requisite intent for both charges of first degree assault against Donald
Dyson. The State, consistent with Wilson and the jury instruction, could argue that
Dyson was culpable for each assault under a theory of specific intent to harm the victim,
or under the theory of transferred intent to harm an unintended victim. The facts lend
themselves to such a strategy since Dyson injured Arthur Ward only after he entered the
fray. Under either theory, the jury still needed to find, at least as to one victim, the
requisite mens rea beyond a reasonable doubt.
Issue 5: Should Donald Dyson be entitled to some reliefbecause Spencer
Schwartzenberger befriended Arthur Ward on Ward's Facebook page after the assault?
Answer 5: No.
We now begin a review of Donald Dyson's statement of additional grounds.
Dyson complains that Spencer Schwartzenberger's memory of the events surrounding his
assault could have been influenced by his becoming friends with Arthur Ward on
Facebook before trial. Dyson highlights an excerpt from the report of proceedings in
26
No. 32248-3-II1
State v. Dyson, Jr.
which Schwartzenberger stated he did not know Ward prior to the assault, but he
confirmed the existence of their on-line friendship.
A jury may believe or disbelieve a witness, since credibility determinations are
solely for the trier of fact. Morse v. Antonellis, 149 Wash. 2d 572, 574, 70 P.3d 125 (2003).
Credibility determinations cannot be reviewed on appeal. State v. Camarillo, 115 Wn.2d
60,71,794 P.2d 850 (1990). The jury heard that Arthur Ward and Spencer
Schwartzenberger befriended each other and could discount the duo's testimony ifit
wished. Otherwise, after hearing testimony from Schwartzenberger, Ward, and Dyson,
the jury remained free to choose whose version of the facts prevailed.
Issue 6: Was Donald Dyson's trial counsel ineffective?
Answer 6: No.
Donald Dyson next contends that he received ineffective assistance due to his trial
attorney's failure to submit evidence regarding Spencer Schwartzenberger's blood
alcohol content level at the time of the assault, the knife wounds suffered by the victims,
and Dyson's alleged posttraumatic stress disorder. A claim of ineffective assistance of
counsel requires proving that (1) counsel's performance was deficient, and (2) the
deficient performance prejudiced the defendant. State v. Thomas, 109 Wash. 2d 222, 225­
26,743 P.2d 816 (1987). Deficient performance occurs when counsel's performance
falls below an objective standard of reasonableness. State v. Stenson, 132 Wash. 2d 668,
705,940 P.2d 1239 (1997), post-conviction reliefgranted on other grounds by In re
27
No. 32248-3-111
State v. Dyson, Jr.
Stenson, 174 Wn.2d 474,276 P.3d 286 (2012). This court presumes that counsel was
effective. Strickland v. Washington, 466 U.S. 668, 689-90, 104 S. Ct. 2052, 80 L. Ed. 2d
674 (1984); State v. McFarland, 127 Wash. 2d at 335. To rebut the strong presumption that
counsel's performance was effective, the defendant bears the burden of establishing the
absence of any conceivable legitimate tactic explaining counsel's performance. State v.
Hamilton, 179 Wash. App. 870, 879-80, 320 P.3d 142 (2014 ). Generally, the decision to
call a witness will not support a claim of ineffective assistance of counsel. Thomas, 109
Wash. 2d at 230.
Donald Dyson's claim of ineffective assistance fails because he can neither show
that his counsel's performance was deficient or that he suffered prejudice as a result.
Contrary to Dyson's argument, his attorney cross-examined an emergency room
physician from Sacred Heart Medical Center regarding the nature of knife wounds
inflicted by Dyson. Spencer Schwartzenberger's BAC (blood alcohol concentration)
level was irrelevant to the charges and testimony of the level could have engendered
sympathy toward Schwartzenberger because it showed him to be in a helpless state
during the assault. Anyway, Dyson's attorney cross-examined Schwartzenberger about
his ingestion of alcohol the night of the assault.
Donald Dyson mentioned for the first time in the case, through his statement of
additional grounds, that he suffers from posttraumatic stress disorder. He furnishes no
28
No. 32248-3-III
State v. Dyson, Jr.
documentation confirming the ailment. He fails to explain how evidence of the disorder
would have resulted in a different outcome at triaL
Issue 7: Did the trial court submit an erroneous self-defense jury instruction?
Answer 7: No.
Finally, Donald Dyson contends that the trial court submitted an incorrect
instruction to the jury regarding self-defense. Dyson provides summaries of relevant case
law but does not identify any mistake in the self-defense instructions given by the trial
court. Nor did he object to the instructions given. The instructions provided by the trial
court echoed the pattern jury instructions on self-defense. Compare CP 87-91 with 11
WASHINGTON PRACTICE: WASHINGTON PATTERN JURY INSTRUCTIONS: CRIMINAL 17.02,
17.04, 17.05 (3d ed. 2008). Because Dyson neither objected to the self-defense
instructions at trial nor identifies a constitutional error on appeal, we do not address this
claimed error in accordance with RAP 2.5(a).
I CONCUR:
29
32248-3-III
KORSMO, J. (Dissenting) I agree with nearly all of the majority opinion except
for its conclusion. The issue identified here is not a mandatory minimum sentence
problem. Alleyne v. United States, _ U.S. _,133 S. Ct. 2151,186 L. Ed. 2d 314
(2013). The actual issue is one of statutory interpretation that has already been settled by
In re Pers. Restraint ofHuy Khac Tran, 154 Wash. 2d 323, 111 P.3d 1168 (2005), and State
v. McChristian, 158 Wn. App. 392,241 P.3d 468 (2010), review denied, 171 Wash. 2d 1003
(2011). Although there is an Alleyne error in this case, that error is harmless. Alleyne
did not change the definition of "punishment" under the Sixth Amendment and does not
extend the Sixth Amendment jury trial right to the collateral consequences of a factual
finding that establishes a minimum sentence. Since the trial court complied with the
procedure set forth in McChristian, I would affirm.
After struggling for many years to define the scope of the constitutional right to a
jury trial as it related to sentencing, the United States Supreme'Court finally cobbled
together a majority to declare a rule on the topic in Apprendi V. New Jersey, 530 U.S.
466,120 S. Ct. 2348,147 L. Ed. 2d 435 (2000). "Other than the fact ofa prior
conviction, any fact that increases the penalty for a crime beyond the prescribed statutory
maximum must be submitted to a jury, and proved beyond a reasonable doubt." Id. at
I
No. 32248-3-111
State v. Dyson - Dissent
490. The rule of Apprendi was then applied to Washington's determinate sentencing
statute, the Sentencing Reform Act of 1981 ch. 9.94A RCW (SRA), in Blakely v.
Washington, 542 U.S. 296, 303-05,124 S. Ct. 2531,159 L. Ed. 2d 403 (2004). The court
concluded that the high end of the standard range was the "statutory maximum" to which
the jury trial right applied. Id. at 303-04. Post-Apprendi, the court declined to extend its
ruling to minimum sentences. Blakely, 542 U.S. at 304; Harris v. United States, 536 U.S.
545, 122 S. Ct. 2406, 153 L. Ed. 2d 524 (2002).
That practice changed in Alleyne. At issue there was the sentence imposed
following a robbery conviction. The jury determined that the defendant had carried a
firearm, a fact that mandated a five year minimum sentence. 186 L. Ed. 2d at 322. The
trial judge "found" that the defendant had brandished a firearm in the course of the
robbery, a fact that mandated a seven year minimum sentence. Id. The Supreme Court
overturned the brandishing sentence, with the plurality reasoning that an increased
minimum sentence acted like an increased maximum sentence, both of which altered the
"prescribed range of sentences to which a defendant is exposed and do so in a manner
that aggravates the punishment." Id. at 324. The fifth vote for the result came from
Justice Breyer, who would have overruled Apprendi, but agreed with the plurality to
overturn Harris and remove what he considered a sentencing anomaly created by that
case. Id. at 334-335.
2
No. 32248-3-III
State v. Dyson Dissent
The application of the Alleyne opinion to RCW 9.94A.540(l)(b)1 is now
straightforward. The statute creates a mandatory minimum sentence that must, under
Alleyne, be found by a jury. That was not done here; I agree with the majority that the
lack of a finding was error. However, the Alleyne error was harmless.
Even with an offender score of zero, under the SRA the standard range for first
degree assault has always exceeded 60 months, the minimum term set by the finding. 2
See Laws of 1983, ch. 115 §§ 2, 3 (establishing sentence ranges and assigning
seriousness levels to offenses; creating range of 62-82 month sentence for first degree
assault with offender score of zero). The minimum term finding thus had no effect on the
sentencing range established by the jury's verdicts in Mr. Dyson's case. Even if a jury
had made the same finding entered by the trial judge, there would have been no change in
the range of incarceration Mr. Dyson faced for his actions-and thus this is not an
Alleyne violation.
) "An offender convicted of the crime of assault in the first degree ... where the
offender used force or means likely to result in death or intended to kill the victim shall
be sentenced to a term of total confinement not less than five years."
2 It seems likely that the primary purpose of the minimum term requirement,
which was enacted by Laws of 1981 ch. 137, § 12, was to influence the Sentencing
Guidelines Commission when it devised the ranges and seriousness levels for the crimes.
The commission's ranges subsequently were adopted by the legislature two years later.
See Laws of 1983, ch. 115 § 1. Although no minimum sentence for first degree assault
. existed at the time the SRA first was enacted in 1981, there had been a five year
minimum term for that offense prior to 1976. See Laws of 1909, ch. 249, § 161, repealed
by Laws of 1975 (lst Ex. Sess.) ch. 260, § 9A.92.010(27).
3
No. 32248-3-III
State v. Dyson - Dissent
Apparently recognizing that the Alleyne error was of no consequence to his
sentence range, Mr. Dyson focuses on one of the collateral consequences of that finding,
the loss of any opportunity to earn early release time during the period of the minimum
sentence. See RCW 9.94A.540(2). That same consequence was at issue in Tran. There
the court concluded that because first degree assault, even when committed with a
firearm, does not completely overlap the more limited instances of first degree assault
subject to the minimum term requirement, the Department of Corrections erred in making
its own finding and imposing the minimum term. 154 Wash. 2d at 332.
This court revisited Tran in McChristian. Division Two began its analysis of the
issue by agreeing with the defendant that the minimum term statute required "a factual
finding that a defendant meets the requirements of the statute before a trial court may
impose a mandatory minimum sentence." McChristian, 158 Wash. App. at 402. It found
that Tran implicitly required a factual finding before the minimum term was imposed. ld.
at 403. It disagreed, however, with the defendant's argument that the Sixth Amendment
required a jury to make the finding, deciding that a judge could do so. ld. at 403-05.
In light of Alleyne, an argument can be made that McChristian is at least partially
defunct and that a jury, not a judge, must make the factual determination that governs the
additional consequences listed in RCW 9.94A.540(2). McChristian still stands, and
should still stand, unless either Alleyne's definition of punishment is expanded to include
the collateral consequences of a minimum term finding or the Washington Supreme
4
No. 32248-3-111
State v. Dyson - Dissent
Court invalidates the McChristian interpretation of Tran. Neither of those events has
happened yet. Critically for this case, nothing in Alleyne changed the Apprendi-Blakely
concept of what constituted "punishment" within the meaning of the Sixth Amendment
right to a jury trial-the range of sentences 3 which a judge could impose based on the
facts found by the jury. Whether a prisoner earns earned early release credits is not a
sentencing option left to the discretion of the sentencing judge. Limitation on earned
early release simply is not punishment under Apprendi and its progeny.
If the Apprendi-Alleyne conception of "punishment" is to be extended to include
the opportunity to earn early release, we should acknowledge what we are doing and
explain why the extension is warranted. This, however, is not the case to have that
discussion. Mr. Dyson did not object to the lack of a jury finding, the court's check-box
minimum term finding, or the judge's comments at sentencing concerning how fortunate
it was that no one died. Under McChristian, these actions were enough to satisfy the
statute's fact-finding requirement. Any question of statutory construction concerning the
identity of the appropriate fact-finder thus was waived by the failure to raise the issue to
the trial court. RAP 2.5(a). Since the United States Supreme Court has not yet extended
its Sixth Amendment jurisprudence to collateral consequences ofajury's factual finding,
3Financial penalties triggered by specific factual determinations have joined
incarceration on the list of what constitutes "punishment" under the Sixth Amendment.
Southern Union Co. v. United States, U.S. _,132 S. Ct. 2344,183 L. Ed. 2d 318
(2012).
5
No. 32248-3-III
State v. Dyson - Dissent
it is doubtful this case presents a manifest issue of constitutional error that we should be
reviewing. RAP 2.5(a)(3). For both reasons, Mr. Dyson's claim should fail.
Although compliance with Alleyne is necessary to impose a minimum term of 60
months incarceration, the low end of the standard range for first degree assault already
exceeds that amount and the jury's verdict means that the minimum term finding is at
worst harmless error under Alleyne. Even if not required by Alleyne, the prudent
prosecutor should seek findings in any appropriate case involving a minimum term and
remove this potential issue in the future. 4
I respectfully dissent.
4 If the charging theory of first degree assault was limited to the options covered
by the mandatory minimum sentence, it appears that a jury verdict alone would be
sufficient to allow the trial judge to impose the minimum term without running afoul of
Alleyne.
6