State Of Washington, V. Jason Cissner ( 2021 )

Filed
Washington State
Court of Appeals
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
Division Two
DIVISION II June 15, 2021
STATE v. WASHINGTON, No. 54228-5-II
Respondent,
v.
JASON KEITH CISSNER, UNPUBLISHED OPINION
Appellant.
GLASGOW, A.C.J.—Jason Keith Cissner assaulted his longtime girlfriend, April Rognlin,
outside of her home one morning. Rognlin and a witness both testified that Cissner choked her,
and Rognlin confirmed she had difficulty breathing. The trial court admitted pictures of the
injuries to her neck. The jury convicted Cissner of second degree assault by strangulation –
domestic violence.
Cissner argues there was insufficient evidence that Rognlin’s airway or blood flow was
obstructed, which is necessary to support his conviction for second degree assault by
strangulation. Cissner also argues that the State failed to prove a 1986 conviction included in
Cissner’s offender score had not washed out. The State concedes that the sparse record does not
support the offender score and we should remand for resentencing. Finally, Cissner challenges
the imposition of supervision fees, which the State agrees can be revisited upon resentencing.
We affirm Cissner’s conviction but accept the State’s concessions and remand for
resentencing. The trial court has discretion on resentencing to determine whether supervision fees
should be imposed.
No. 54228-5-II
FACTS
Rognlin lived in a house with Cissner, while her friend, Juanita Kenworthy, lived in a trailer
on the same property. Rognlin had been sick for a few days and was staying with Kenworthy
because Kenworthy was a retired nurse. She was sleeping in Kenworthy’s trailer in the morning
when she awoke to Cissner screaming for her. Rognlin went outside, Cissner assaulted her, and
she was injured. The State charged Cissner with second degree assault – domestic violence,
alleging he intentionally assaulted a family or household member by strangulation.
At trial, Rognlin testified that when she awoke to Cissner screaming for her, she went
outside to see if she could appease him, while Kenworthy stayed in the trailer but watched through
a window. Rognlin testified that she threatened to try to get a restraining order if Cissner did not
stop screaming. He attacked her, and she ran away, hoping Kenworthy would see she was in
trouble. Cissner caught her and, Rognlin testified, “[H]e had me around the neck.” Verbatim
Report of Proceedings (VRP) (Oct. 22, 2019) at 77. Then she explained:
Q: . . . . Now at any time did he have one or more hands on your neck?
[Rognlin]: He had a hand on my hair, pulled my hair, and then, yeah, on my neck
mostly. I think he had his arm around --
Q: Was there ever any difficulty breathing?
[Rognlin]: Yeah, it was--
Q: Make sure we got this. He chased you out of the house and gets you into -- at
some point, hands on the neck and switches to a headlock?
[Rognlin]: …All I know is I was being confined and choked or whatever and drug
and trying to get back in the house.
Id. at 78.
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No. 54228-5-II
Rognlin’s friend, Kenworthy, also testified about what she saw. Kenworthy said she looked
out her door “and he had his hand around her neck and she was trying to get away, and then he
just put a choke[ ]hold on her and dragged her towards the house.” Id. at 65. When pressed, she
said two more times that she saw Cissner put his hands around Rognlin’s neck. She also said that
Cissner “put a choke[ ]hold on her” and was “choking” her. Id. at 67, 71.
Kenworthy called 911 and Cissner left the property. An officer arrived and interviewed
Rognlin. The officer took pictures of injuries to Rognlin’s neck, and the trial court admitted the
pictures into evidence. The officer testified that based on his training and experience, the
photographs were “consistent with someone being strangled or assaulted in the area of their neck.”
Id. at 50.
The trial court instructed the jury that to convict Cissner of second degree assault, it had to
find that Cissner “[i]ntentionally assaulted April Rognlin by strangulation.” Clerk’s Papers at 21.
The trial court defined “strangulation” as “to compress a person’s neck, thereby obstructing the
person’s blood flow or ability to breathe, or doing so with the intent to obstruct the person’s blood
flow or ability to breathe.” Id. With the agreement of both parties, the trial court also instructed
the jury on fourth degree assault as a lesser included offense that the jurors should consider if they
could not conclude beyond a reasonable doubt that Cissner committed second degree assault.
In closing, the State argued that Cissner intentionally strangled Rognlin, relying on her
testimony that her breathing was affected, as well as Kenworthy’s testimony about what she saw
and the pictures of Rognlin’s injuries. Defense counsel argued that Cissner did not intend to
strangle Rognlin and he was just trying to get her into the house. He also argued that her airway
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No. 54228-5-II
was not cut off and she did not require medical attention, so there was no evidence the definition
of “strangulation” was met.
The jury found Cissner guilty of second degree assault with a special finding that he and
Rognlin were members of the same household.
The trial court then sentenced Cissner using an offender score of 7, which Cissner argues
included a 1986 conviction, a fact the State does not dispute. The trial court found Cissner indigent
but imposed supervision fees in the community custody portion of Cissner’s sentence.
ANALYSIS
I. SUFFICIENCY OF THE EVIDENCE TO SUPPORT STRANGULATION
Cissner challenges the sufficiency of the evidence supporting his conviction for second
degree assault by strangulation. Sufficiency of the evidence is a question of law that we review de
novo. State v. Rich, 184 Wn.2d 897, 903, 365 P.3d 746 (2016). We consider whether, viewing the
evidence in the light most favorable to the State, any rational trier of fact could have found guilt
beyond a reasonable doubt. State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992). “A claim
of insufficiency admits the truth of the State’s evidence and all inferences that reasonably can be
drawn therefrom.” Id.To convict of assault by strangulation, the State must prove that the defendant compressed
the victim’s neck and thereby either (1) obstructed the person’s blood flow or ability to breathe or
(2) intended to obstruct the person’s blood flow or ability to breathe. RCW 9A.36.021(1)(g); RCW
9A.04.110(26). The obstruction need not be complete; a partial obstruction of blood flow or the
ability to breathe is enough. State v. Rodriguez, 187 Wn. App. 922, 934-35, 352 P.2d 200 (2015).
Cissner argues that the evidence at trial was insufficient for a reasonable person to conclude that
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No. 54228-5-II
he obstructed Rognlin’s blood flow or her ability to breathe or acted with the specific intent to
cause that result.
We disagree. The responding officer testified he saw injuries to Rognlin’s neck and the
jury saw pictures of those injuries. In addition, both Rognlin and Kenworthy testified that Cissner
put his hands around Rognlin’s neck, choked her, and put her in a choke hold. Rognlin briefly
confirmed that she had difficulty breathing and this testimony was undisputed.
Cissner argues that other cases affirming convictions for second degree assault by
strangulation have involved stronger evidence of obstructed airflow. He also points out that when
determining whether the court should give the lesser included fourth degree assault instruction
outside of the presence of the jury, the trial court referred to Rognlin’s testimony supporting
strangulation as “kind of so-so.” VRP (Oct. 22, 2019) at 87. But these arguments do not address
the test we must apply for sufficiency of the evidence.
Viewing the evidence in the light most favorable to the State and drawing all inferences in
the State’s favor, the evidence presented in this case was sufficient for the jury to find that Cissner
obstructed Rognlin’s ability to breathe. We conclude that the evidence was sufficient to support
Cissner’s conviction for second degree assault.
II. OFFENDER SCORE
Cissner argues that his offender score included a 1986 conviction for assault and the State
failed to prove that this conviction had not washed out. The State responds that the record on
sentencing in this case is “scant at best.” Br. of Resp’t at 10. The State therefore concedes that this
court should remand for resentencing.
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No. 54228-5-II
There are no documents in the record supporting the calculation of Cissner’s offender score
other than the list of prior convictions in the judgment and sentence. There is no further discussion
in the record about the 1986 prior conviction in particular or whether it had washed out. We accept
the State’s concession and conclude that remand for resentencing is appropriate.
III. SUPERVISION FEE
Cissner points out that the trial court found him indigent and in the legal financial
obligation section of his judgment and sentence, the trial court imposed only the mandatory crime
victim assessment. But in a different part of the judgment and sentence, the trial court ordered that
he pay supervision fees as determined by the Department of Corrections while on community
custody. Cissner argues that the trial court intended to waive discretionary costs and fees and,
therefore, the supervision fee provision should be stricken from his judgment and sentence.
The State responds that supervision fees are not “costs” that must be waived under RCW
10.01.160(3) where the defendant has been found to be indigent and, therefore, the trial court had
discretion to impose supervision fees. Nevertheless, the State agrees that the trial court is free to
revisit whether supervision fees should be imposed upon resentencing.
We agree with the State that supervision fees are not “costs” under RCW 10.01.160(3) that
must be waived if the defendant is indigent as defined in RCW 10.101.010(3)(a)-(c). State v. Starr,
16 Wn. App. 2d 106, 109, 479 P.3d 1209 (2021). The trial court has discretion upon resentencing
to determine whether it wants to impose supervision fees.
CONCLUSION
We affirm Cissner’s conviction, but we remand for resentencing. The trial court has
discretion on resentencing to determine whether supervision fees should be imposed.
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No. 54228-5-II
A majority of the panel having determined that this opinion will not be printed in the
Washington Appellate Reports, but will be filed for public record in accordance with RCW 2.06.040,
it is so ordered.
Glasgow, A.C.J.
We concur:
Sutton, J.
Veljacic, J.
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