State v. Fletcher

500 P.3d 222

STATE of Washington, Respondent,

v.Zachary Alan FLETCHER, Appellant.

No. 54502-1-II

Court of Appeals of Washington, Division 2.

Filed December 14, 2021

Lane J. Wolfley, Attorney at Law, 713 E 1st St., Port Angeles, WA, 98362-3604, for Appellant.

Jesse Espinoza, Clallam County Deputy Prosecuting Attorney, 223 E 4th St. Ste. 11, Port Angeles, WA, 98362-3000, for Respondent.

PART PUBLISHED OPINION

Worswick, J.

¶1 Zachary Fletcher appeals his convictions and sentence for two counts of vehicular assault. Fletcher argues that the trial court erred when it sentenced him to an exceptional sentence upward based on the severity of the victims’ injuries pursuant to RCW 9.94A.535(3)(y). Specifically, Fletcher argues that the trial court erred when (1) it failed to issue findings on the mitigating factor that the victims were "willing participants," (2) it failed to balance the mitigating factor against the aggravating factors, and (3) it imposed an exceptional sentence upward.

¶2 In a statement of additional grounds (SAG), he argues that (4) the trial court erred in finding that he was the driver at the time of the collision, (5) the State violated his due process rights by failing to properly handle key evidence, and (6) the prosecutor committed prosecutorial misconduct during closing argument when he commented on Fletcher's refusal to testify.

¶3 In the published portion of the opinion, we hold that the trial court was not required to enter findings on the mitigating factor, nor was it required to balance the mitigating factor against the aggravating factor, and it did not err in imposing an exceptional sentence upward. In the unpublished portion of the opinion, we reject the remainder of Fletcher's arguments.

¶4 Accordingly, we affirm Fletcher's convictions and sentence.

FACTS

¶5 On the evening of May 31, 2018, Fletcher, Jacob Torey, and Naomi Kuykendall, arranged to meet so they could party together. Torey first called Fletcher because Fletcher had a vehicle and then texted Kuykendall, who brought beer.¹ All three of them drank beer on their way to "Six Pack," an area where they drank and shot guns. Afterward, Fletcher and Kuykendall took turns driving the truck to their next destination, the spit at Ediz Hook.²

¶6 Fletcher was driving erratically and speeding. As Fletcher was driving, Kuykendall recorded "Snapchat" videos and sent them to her friends. Fletcher drove the vehicle on the way back from the spit, and crashed it into concrete blocks and a light pole at a high rate of speed. Torey was ejected from the vehicle. Fletcher's blood alcohol content (BAC) was 0.18 at the time of the collision. As a result of the accident, Torey was paralyzed from the waist down, and Kuykendall sustained a fractured sternum and three fractured vertebrae.

¶7 Torey spent a month in Harborview Medical Center, where he needed rehabilitation to help him regain some bodily functions like transitioning to his bed, going to the bathroom, getting dressed, and other functions. Kuykendall's injuries required the doctors to install a metal rod and screws down her neck. Kuykendall suffered from daily neck pain, loss of neck mobility, memory loss, and other physical limitations. Kuykendall also had to switch her career path from nursing to something less physically demanding due to her injuries from the accident.

¶8 The State charged Fletcher with two counts of vehicular assault. Each count included the special allegation aggravating factor under RCW 9.94A.535(3)(y) that the injuries substantially exceed the level of bodily harm necessary to satisfy the elements of the offense. Fletcher waived his right to a jury trial. The matter proceeded to a bench trial.

¶9 The trial court found Fletcher guilty as charged. The trial court entered the following findings after trial:

1. During the early morning hours of June 1, 2018, Zachary A. Fletcher was the driver of a vehicle at the time that the vehicle was involved in a crash occurring on Marine Drive in Port Angeles, Clallam County, Washington.

2. At the time of the crash Zachary A. Fletcher was operating the vehicle in a reckless manner and while under the influence of intoxicating liquor.

3. At the time of the crash, Jacob Torey was a passenger in the vehicle being driven by Zachary A. Fletcher.

4. At the time of the crash, Naomi Kuykendall was a passenger in the vehicle being driven by Zachary A. Fletcher.

5. Zachary A. Fletcher's driving at the time of the crash caused substantial bodily harm to Jacob Torey. Jacob Torey was ejected from the vehicle. He suffered a severe T12 fracture-translation with large bony fragment obliterating the central canal. He is now paralyzed below the point of the T12 fracture. He also suffered various other injuries which included broken bones.

6. Zachary A. Fletcher's driving at the time of the crash caused substantial bodily harm to Naomi Kuykendall. Naomi Kuykendall suffered fractures involving the anterior and posterior arch of C1 as well as fractures to her thoracic spine and her manubrium sterni. The injury to C1 was treated operatively by the placing of screws and continues to cause her loss of motion.

7. Jacob Torey's injuries substantially exceeded the substantial bodily harm necessary to satisfy the elements of the charged offense.

8. Naomi Kuykendall's injuries substantially exceeded the substantial bodily harm necessary to satisfy the elements of the charged offense.

Clerk's Papers at 17-18.

¶10 The standard range for these crimes was 12+ to 14 months. At sentencing, the State requested an exceptional sentence of 72 months for count I based on the severity of Torey's injuries and 24 months for count II based on Kuykendall's injuries to be served concurrently. Fletcher asked for a sentence within the standard range, arguing that because Kuykendall and Torey were willing participants, the trial court should consider their participation as a mitigating factor and balance that against the aggravating factor of the victims’ injuries. The trial court considered this argument, stating:

I've spent considerable amount of time thinking about this case, thinking about today, reading all the cases I could find where there have been convictions for vehicular assault and punishments that courts have imposed as a result of that and how the facts of those cases are similar to or dissimilar from this case — to try and come up with some sort of sensible approach to what should occur here.

....

In this case, the severity of the injuries are something clearly the Court has to consider. The participation of others is also embodied in our law as something for the Court to consider.

I don't have the ability to really express with clarity in a way that probably can answer everybody's questions or how all that gets synthesized into a final decision in this matter. But I do believe that as I found at the trial, that an aggravating factor is clearly applicable because of the nature of the injuries that these victims have suffered and will continue to suffer.

....

[T]hat's not to say there's not others that may be responsible, for example, somebody provided minors alcohol that night, that was probably a crime for whoever did that. Um, we had minors drinking, but we also—uh, you allowed that to occur in your presence and in your car. All those factors get weighed somehow.

3 Report of Proceedings (RP) (Mar. 11, 2020) at 98-99.

¶11 The court then imposed an exceptional sentence of 48 months on each count to run concurrently.

¶12 Fletcher appeals his convictions and sentence.

ANALYSIS

I. THE TRIAL COURT IS NOT REQUIRED TO MAKE FINDINGS OF MITIGATING FACTORS WHEN IT IMPOSES AN EXCEPTIONAL SENTENCE UPWARD

¶13 As a preliminary matter, Fletcher argues that the trial court was required to make a written finding on the mitigating factor that the victims were willing participants in the incident. We disagree.

¶14 To determine whether the trial court was required to issue findings on the mitigating factor, we must first ascertain the meaning of the relevant statutes, RCW 9.94A.535 and RCW 9.94A.537, subsections (3) and (6).

¶15 We review questions of statutory interpretation de novo. State v. Ervin , 169 Wash.2d 815, 820, 239 P.3d 354 (2010). When a court interprets a statute, its objective is to determine the legislature's intent. Ervin , 169 Wash.2d at 820, 239 P.3d 354. If the statute's meaning is plain on its face, we give effect to that plain meaning. Ervin , 169 Wash.2d at 820, 239 P.3d 354. To determine the plain meaning of a statute, courts examine the text of the statutory provision, and the " ‘context of the statute in which that provision is found, related provisions, and the statutory scheme as a whole.’ " Ervin , 169 Wash.2d at 820, 239 P.3d 354 (quoting State v. Jacobs , 154 Wash.2d 596, 600, 115 P.3d 281 (2005) ). If, after this inquiry, the statute is susceptible to more than one reasonable interpretation, it is ambiguous and we " ‘may resort to statutory construction, legislative history, and relevant case law for assistance in discerning legislative intent.’ " Ervin , 169 Wash.2d at 820, 239 P.3d 354 (quoting Christensen v. Ellsworth , 162 Wash.2d 365, 373, 173 P.3d 228 (2007) ).

¶16 RCW 9.94A.535 imposes requirements on sentencing courts when they depart from the standard range sentence. It states that "[w]henever a sentence outside the standard sentence range is imposed, the court shall set forth the reasons for its decision in written findings of fact and conclusions of law." RCW 9.94A.535.

¶17 RCW 9.94A.537 governs aggravating circumstances and sentences above the standard range. It states, in relevant part,

(3) The facts supporting aggravating circumstances shall be proved to a jury beyond a reasonable doubt. The jury's verdict on the aggravating factor must be unanimous, and by special interrogatory. If a jury is waived, proof shall be to the court beyond a reasonable doubt, unless the defendant stipulates to the aggravating facts.

....

(6) If the jury finds, unanimously and beyond a

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