State v. Johnson

540 P.3d 831

STATE of Washington, Respondent,

v.Brennaris Marquis JOHNSON, Appellant.

No. 83738-9-I

Court of Appeals of Washington, Division 1.

Filed January 2, 2024

Washington Appellate Project, 1511 Third Avenue, Suite 610, Seattle, WA, 98101, Gregory Charles Link, Washington Appellate Project, 1511 3rd Ave. Ste. 610, Seattle, WA, 98101-1683, for Appellant.

Amanda Fern Esq. Campbell, Snohomish County Prosecutor's Office, 3000 Rockefeller Ave., Everett, WA, 98201, for Respondent.

PUBLISHED OPINION

Smith, C.J.

¶1 Brennaris Marquis Johnson appeals a jury verdict finding him guilty of second degree assault and felony violation of a no-contact order. On appeal, Johnson contends that the trial court erred by (1) instructing the jury that fourth degree felony assault was a lesser degree offense to second degree assault, (2) admitting evidence of prior assaults against the victim in this case, (3) imposing an exceptional sentence, (4) making an impermissible factual finding when it imposed an exceptional sentence, and (5) imposing a longer than statutorily permitted sentence on the no-contact order violation. Not finding his first four arguments persuasive, we affirm the convictions. However, we agree that Johnson's sentence for the violation of the no-contact order is longer than statutorily permissible and remand for the court to correct the sentence.

FACTS

¶2 Brennaris Marquis Johnson and Nicole Trichler began dating in early 2020. Following an incident in August 2020, Johnson was arrested and a no-contact order protecting Trichler was entered. Despite the no-contact order, the parties stayed in contact.

¶3 In late January 2021, while the no-contact order was still in place, Trichler picked Johnson up from jail and the two spent a handful of days at Trichler's apartment. During this time, Johnson was "very argumentative" and accused Trichler of stealing his stimulus check¹ and cheating on him. When Trichler denied stealing the check, Johnson responded by hitting her under the jaw. Trichler asked Johnson why he had hit her, but Johnson just walked away before then turning around and punching Trichler repeatedly on her head, like he would hit a punching bag. Trichler again asked Johnson why he had hit her. In response, Johnson again struck Trichler on her temple. He then told Trichler that he could "do this and nobody would ever see a bruise." Trichler's head started to hurt and she asked Johnson if she could take some aspirin. Trichler testified at trial that at this point in time, she was trying not to get upset because she didn't want Johnson to accuse her of playing the victim. Trichler took four aspirin for the pain.

¶4 About 15 minutes later, Trichler described hearing a buzzing noise and feeling an intense pressure in her head. Trichler told Johnson to call 911 because she felt like she was "going to die."² By the time emergency personnel responded, Trichler was "crawling around" on her hands and knees. One of the responding emergency medical technicians (EMTs) checked Trichler's vital signs, concluded she was not in danger of serious injury, and advised her to visit a walk-in clinic. Trichler did not report any assault to the EMTs or tell them that she and Johnson had been arguing.

¶5 Once the EMTs departed, Trichler's condition steadily deteriorated. She began to vomit and asked Johnson to call 911 again. When the EMTs returned, Johnson or Trichler³ told them that Trichler had used methamphetamine and had been drinking rum that day. The EMTs changed their impression of the incident to one involving substance abuse, reasoning that Trichler's headache was from her drug and alcohol use. The EMTs then drove Trichler to the hospital.

¶6 At the hospital, Trichler told staff she had used methamphetamine and immediately developed a severe headache. She denied any assault or trauma. A CT ⁴ scan revealed Trichler had a subdural hematoma, a type of inner brain bleed. Trichler was transferred to the trauma and acute care surgery team for brain surgery to remove the hematoma. After the surgery, Trichler spent several days recovering in the hospital.

¶7 Trichler initially blamed the aspirin for her condition. But after talking with her mother, Trichler realized the severity of her injuries and decided to report the assault to police. Johnson was subsequently charged with second degree assault and felony violation of a no-contact order.

¶8 Before trial, during motions in limine, the State moved to admit evidence of Johnson's prior assaults against Trichler. The State argued that Trichler's credibility would be a primary issue because of her delay in reporting and general denial of the assault. After hearing pretrial testimony from Trichler, the court granted the State's motion, subject to a limiting instruction. The State also requested that the jury be instructed on fourth degree felony assault as a lesser degree offense of second degree assault. Johnson objected. The court noted that the jury could conclude Trichler's injuries were caused by something other than the assault, such as a fall, and preliminarily granted the State's request.

¶9 The jury found Johnson guilty as charged, and the trial court sentenced him to a total of 168 months of confinement and 30 months of community custody. Johnson appeals.

ANALYSIS

Lesser Degree Offense

¶10Johnson contends that the court violated his due process rights by instructing the jury on fourth degree felony assault as a lesser degree offense of second degree assault, denying that it is a lesser degree offense. He maintains that even if fourth degree felony assault is a lesser degree offense, the evidence did not support such an instruction. He also argues that, although the jury did not convict him of fourth degree felony assault, he suffered substantial prejudice because the State introduced evidence to support that instruction. We conclude that the instruction was not given in error.

¶11Criminal defendants are generally entitled to notice of the charges they are to meet at trial and may be convicted only of the crimes charged in the information. State v. Tamalini, 134 Wash.2d 725, 731, 953 P.2d 450 (1998). But when a defendant is charged with an offense consisting of different degrees, the jury may find the defendant guilty of a lesser degree⁵ of the charged offense. RCW 10.61.003. A trial court may instruct the jury on a lesser degree offense when

"(1) the statutes for both the charged offense and the proposed [lesser] degree offense proscribe but one offense; (2) the information charges an offense that is divided into degrees, and the proposed offense is a [lesser] degree of the charged offense; and (3) there is evidence that the defendant committed only the [lesser] offense."

State v. Fernandez-Medina, 141 Wash.2d 448, 454, 6 P.3d 1150 (2000) (internal quotation marks omitted) (quoting State v. Peterson, 133 Wash.2d 885, 891, 948 P.2d 381 (1997) ).

¶12 "The standard of review applied to a trial court's decision to give a jury instruction depends on whether that decision was based on an issue of law or fact." State v. Loos, 14 Wash App. 2d 748, 760, 473 P.3d 1229 (2020). The first two prongs of the Fernandez-Medina test are legal questions, which we review de novo. Loos, 14 Wash. App. 2d at 760, 473 P.3d 1229. The third prong presents a question of fact that we review for an abuse of discretion. Loos, 14 Wash. App. 2d at 760, 473 P.3d 1229. Only the first and third prongs are at issue here.⁶

1. Offense Proscribed

¶13 To determine whether criminal statutes " ‘proscribe but one offense,’ " Washington courts look to whether the statutes criminalize the same or different conduct. Tamalini, 134 Wash.2d at 732-33, 953 P.2d 450 (quoting State v. Foster, 91 Wash.2d 466, 472, 589 P.2d 789 (1979) ). For example, in Tamalini, our Supreme Court concluded that first and second degree manslaughter were not lesser degree offenses of second degree felony murder because "the manslaughter statutes and the felony murder statutes proscribe significantly different conduct and thus define separate and distinct crimes." 134 Wash.2d at 732, 953 P.2d 450. The court examined the statutory elements of manslaughter and felony murder and reasoned that, although both statutes generally proscribe killing another human, they are "directed to significantly differing conduct of defendants." Tamalini, 134 Wash.2d at 733, 953 P.2d 450. Similarly, in State v. McJimpson, this court concluded that second degree felony murder and second degree manslaughter were not the same offense because "they prohibit significantly different conduct with regard to such killing" and the statutes involve different mens rea requirements. 79 Wash. App. 164, 171-72, 901 P.2d 354 (1995).

¶14 Here, Johnson was charged under RCW 9A.36.021(1), which provides:

A person is guilty of assault in the second degree if he or she, under circumstances not amounting to assault in the first degree:

(a) Intentionally assaults another and thereby recklessly inflicts substantial bodily harm.

¶15 The jury instructions reflect this iteration of second degree assault. Under RCW 9A.36.041(1), a person is guilty of fourth degree assault "if, under circumstances not amounting to assault in the first, second, or third degree, or custodial assault, he or she assaults another."

¶16 Fourth degree assault is a class C felony if the defendant, within the preceding decade, has been convicted of two or more of the following offenses, for which domestic violence against an intimate partner was proved:

(i) Repetitive domestic violence offense as defined in RCW 9.94A.030 ;

(ii) Crime of harassment as defined by RCW 9A.46.060 ;

(iii) Assault in the third degree;

(iv)Assault in the second degree;

(v) Assault in the first degree; or

(vi)A municipal, tribal, federal, or out-of-state offense comparable to any offense under (b)(i) through (v) of this subsection.

RCW 9A.36.041(3)(b). Similarly, the jury instructions reflect this type of fourth degree felony assault.

¶17 Assault is...