State v. Perry

431 P.3d 543

STATE of Washington, Respondent,

v.Treven Alan PERRY, Appellant.

No. 49913-4-II

Court of Appeals of Washington, Division 2.

Filed December 11, 2018

Catherine E. Glinski, Glinski Law Firm PLLC, Po Box 761, Manchester, WA, 98353-0761, for Appellant.

Lauren Ruth Boyd, Attorney at Law, 1013 Franklin St., Vancouver, WA, 98660-3039, Prosecuting Attorney Clark County, Clark County Prosecuting Attorney, Po Box 5000, 1013 Franklin Street, Vancouver, WA, 98666-5000, for Respondent.

PART PUBLISHED OPINION

Bjorgen, J.

¶ 1 Treven Alan Perry challenges the trial court’s decision to impose an exceptional sentence for hit and run (injury) based on the severity of the victim’s injuries.

¶ 2 Perry argues that the jury’s finding on the special verdict form does not justify an exceptional sentence, as the "substantially exceeds" aggravating factor does not apply to a conviction for the crime of hit and run (injury). In addition, Perry claims that neither the jury’s finding by special verdict nor the court’s findings of fact provide a sufficient basis on which to justify the exceptional sentence.

¶ 3 In his statement of additional grounds (SAG), Perry expresses concerns related to judicial bias. He also argues that the jury’s guilty verdict is invalid because, he claims, the to-convict instructions are inconsistent with RCW 46.52.020.

¶ 4 In the published portion of this opinion, we hold that the jury’s finding on the special verdict form does justify an exceptional sentence, because the "substantially exceeds" aggravating factor applies to a conviction for the crime of hit and run (injury). We further hold that the jury’s finding by special verdict alone provides a sufficient basis on which to justify Perry’s exceptional sentence. Nevertheless, we hold the trial court erred when it made findings of fact in addition to those made by the jury to support the exceptional sentence. In the unpublished portion of this opinion, we hold that Perry’s SAG claims fail.

¶ 5 Accordingly, we reverse Perry’s sentence and remand for resentencing.

FACTS

A. Substantive Facts

¶ 6 In March 2016, Ryan Moore and his brother, Trevor Moore,¹ were out for a late night walk. They were walking on the left side of the street with Trevor walking closer to the ditch on the side of the road and Moore walking on Trevor’s right next to the shoulder. Trevor heard a vehicle approaching from behind them. He glanced back, noted that the vehicle was traveling in the same direction they were walking, and driving straight "like it should." Verbatim Report of Proceedings (VRP) (Jan. 18, 2017) at 168. He then turned back around to face forward and, without warning, the vehicle collided with Moore from behind, missing Trevor by a foot. The force of the impact threw Moore 6 to 8 feet between two reflective signs. He hit the ground and rolled to a stop on the pavement. Trevor testified that the vehicle kept driving and never stopped or slowed down; he stated he never saw any brake lights.

¶ 7 Perry claims that he was reaching for something he dropped on the floor of his truck when he heard the truck hit something. After he realized his vehicle hit something, he claims he took his foot off the accelerator and sat up. While his vehicle decelerated, Perry said he assessed the damage to his truck and looked back to see what he had hit. He noticed two poles with reflective signs where he believed there had been three and concluded he had hit one of the poles. He claims he did not see Moore or Trevor. Perry then drove home, deciding to report the accident in the morning. Perry gave the same information to investigating officers who located his damaged vehicle in his driveway the next morning.

¶ 8 Moore suffered multiple injuries, including a neck fracture, various pelvic fractures, an arm fracture, a leg fracture, pulmonary contusions, acute blood loss anemia, a scalp laceration, and a kidney laceration. He was hospitalized for six days following the accident and underwent multiple surgeries.

B. Procedural Facts

¶ 9 The State charged Perry with one count of hit and run (injury) under RCW 46.52.020(4)(b). The State later filed an amended information giving notice of its intent to seek an exceptional sentence based on the aggravating fact that Moore’s injuries had substantially exceeded the level of bodily harm necessary to satisfy the elements of the offense.

¶ 10 The case proceeded to jury trial. After the close of evidence, the State proposed jury instructions on the definition of "bodily harm" and how to decide whether the "substantially exceeded" aggravating factor existed, as well as a special interrogatory addressing the aggravating factor. Defense counsel objected to the proposed instructions related to bodily harm and the aggravating factor, as well as the special interrogatory, arguing that the aggravating factor did not apply because bodily harm was not an element of the charged offense. Over defense counsel’s objection, the trial court instructed the jury, in pertinent part, as follows:

INSTRUCTION NO. 8

Bodily harm means physical pain or injury, illness, or an impairment of physical condition.

INSTRUCTION NO. 9

In deciding whether the victim’s injuries substantially exceeded the level of bodily harm necessary to constitute bodily harm, you should compare the injuries suffered by the victim to the minimum injury that would satisfy the definition of bodily harm set out in instruction 8.

Clerk’s Papers (CP) at 38-39. The special verdict form related to these instructions asked the jury the following question: "Did the victim’s injuries substantially exceed the level of bodily harm necessary to constitute bodily harm, as defined in Instruction 8." CP at 44.

¶ 11 The jury found Perry guilty of the crime of hit and run (injury). The jury also found that Moore’s injuries substantially exceeded the level of bodily harm necessary to constitute bodily harm as defined by the instructions. The sentencing court imposed a 36-month exceptional sentence and entered the following findings of fact and conclusions of law in support of its decision:

FINDINGS OF FACT

1. On January 19, 2017, the jury found the defendant, Mr. Perry, guilty of Hit and Run Injury Accident.

2. The jury found, unanimously and beyond a reasonable doubt, and by special interrogatory that the injuries in this case substantially exceeded the level necessary to prove the element of injury in the crime of Hit and Run Injury.

3. The victim in this case, Ryan Moore, may very likely have died had his brother not been walking along the road with him, which is a substantial and compelling reason to impose an exceptional sentence.

4. The Court takes Mr. Perry’s criminal history into consideration in finding there is a substantial and compelling reason to impose an exceptional sentence.

5. The failure to stop and render aid in this case does not have any excuse in the view of the jury and in the view of this Court, which is a substantial and compelling reason to impose an exceptional sentence.

6. The unwillingness to stop and see if anybody had in fact been hurt gives rise to two very unflattering implications: it shows extreme recklessness or carelessness and the other shows a level of consciousness of guilt and fleeing to avoid other potential different or magnifying legal problems. These are substantial and compelling reasons to impose an exceptional sentence.

CONCLUSIONS OF LAW

On the basis of the foregoing findings of Fact and the record and file herein, the Court makes the following conclusions of law:

1. There are substantial and compelling reasons justifying an exceptional sentence above Mr. Perry’s standard range of six to twelve months.

2. Under the circumstances in this case, a thirty-six month sentence is appropriate.

ORDER

¶ 12 Pursuant to RCW 9.94A.537, an exceptional sentence in this case is appropriate. CP at 67-69.

¶ 13 Perry appeals.

ANALYSIS

I. EXCEPTIONAL SENTENCE

¶ 14 Perry argues that the jury’s finding on the special verdict form does not justify an exceptional sentence, because the "substantially exceeds" aggravating factor does not apply to a conviction for hit and run (injury). We disagree.

A. Standard of Review

¶ 15 An exceptional sentence is subject to review as set forth in RCW 9.94A.585(4), which states:

To reverse a sentence which is outside the standard sentence range, the reviewing court must find: (a) Either that the reasons supplied by the sentencing court are not supported by the record which was before the judge or that those reasons do not justify a sentence outside the standard sentence range for that offense; or (b) that the sentence imposed was clearly excessive or clearly too lenient.

Our Supreme Court has stated that subsection (a) of this statute includes both a legal and a factual component. State v. Stubbs , 170 Wash.2d 117, 123, 240 P.3d 143 (2010). We review the legal component of a sentence de novo. Id . at 124, 240 P.3d 143. Turning to the factual component, in order to justify an exceptional sentence, a jury must first find any facts supporting aggravating circumstances beyond a reasonable doubt and by special interrogatory. Id . at 123, 240 P.3d 143. We review a jury’s finding by special interrogatory under the sufficiency of the evidence standard used for reviewing convictions. Id .

¶ 16 We review a challenge to the sufficiency of the evidence de novo. State v. Berg , 181 Wash.2d 857, 867, 337 P.3d 310 (2014). The test for determining whether sufficient evidence supports a conviction is whether, after viewing the evidence in the light most favorable to the State, any rational fact finder could have found the essential elements of the crime charged beyond a reasonable doubt. Id. In making a sufficiency challenge, "the defendant necessarily admits the truth of the State’s evidence and all reasonable inferences that can be drawn from it." State v. Drum , 168 Wash.2d 23, 35, 225 P.3d 237 (2010). "[A]ll reasonable inferences from the evidence must be drawn in favor of the State and interpreted...