State of Washington v. Shane Kyle Deweber ( 2017 )

FILED
FEBRUARY 14, 2017
In the Office of the Clerk of Court
WA State Court of Appeals, Division Ill
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
STATE OF WASHINGTON, )
) No. 33247-1-111
Respondent, )
)
V. )
)
SHANE KYLE DEWEBER, ) UNPUBLISHED OPINION
)
Appellant. )
SIDDOWAY, J. - Following a jury trial, Shane Deweber was convicted of two
counts of second degree assault and one count of attempting to elude a pursuing police
vehicle. He contends his right to a jury trial was violated when the trial judge imposed an
exceptional aggravated sentence that was not supported by a factual finding by the jury,
and the trial court erred when it denied his request for a jury instruction on third degree
assault. We affirm the convictions, but because the court committed Blakely 1 error, we
vacate the exceptional sentence and remand for resentencing.
FACTS AND PROCEDURAL BACKGROUND
After Mr. Deweber separated from his wife he became depressed and suicidal. On
October 7, 2013, he learned his wife had started seeing someone else. Distraught, he
purchased beer and began drinking. After an upsetting phone call with his wife, Mr.
1
Blakely v. Washington, 542 U.S. 296,303, 124 S. Ct. 2531, 159 L. Ed. 2d 403
(2004).
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State v. Deweber
Deweber consumed hundreds of Adderall 2 pills along with more beer. While he claims
no memory of the following events, he admits he wanted to commit suicide that night.
Between 11 :06 and 11 :35 p.m., Mr. Deweber sent text messages to his mother,
two of which stated:
"I took around 250 Adderall and 10 beers. This should finally do it-this
should finally do. I love you, mom, and don't worry, I'm at peace with it."
... "Please don't call the law because I'll go after them with an ax
and they'll have to shoot me."
Report of Proceedings (RP) 3 at 267.
Several hours later, Mr. Deweber drove his pickup truck to the recreational vehicle
(RV) where his wife was living and started banging on her RV, telling her he "just
wanted to talk." RP at 394. Ms. Deweber later testified that her husband was not
himself, was "twitching and jerking," was running his hands up and down the RV, and at
one point, started licking the RV's windows. RP at 393. She called police.
Deputies Jerrad Jech and Michael Ramos were the first to respond to her call.
Upon arriving, they got out of their vehicle and Mr. Deweber came toward them,
2
Adderall is a medication used to treat attention-deficit/hyperactivity disorder
(ADHD). See http://www.fda.gov/Drugs/DrugSafety
/PostmarketDrugSafety lnformationforPatientsandProviders/ucm 111441.htm (last visited
February 9, 2017).
3
All references to the report of proceedings are to the four volume report that
begins with a status hearing on August 7, 2014, and continues through trial and the return
of the jury's verdict.
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behaving strangely. Deputy Jech ordered Mr. Deweber to show his hands, which he
failed to do. Instead, he reached inside the nearby passenger side door of his pickup truck
and pulled out what Deputy Jech would later describe as a Samurai sword, which Mr.
Deweber swung up over his head, sending its sheath flying. He took a couple of steps
towards the officers with the sword raised and tried to coax them into shooting him. A
standoff ensued as Deputies Jech and Ramos waited for additional officers to respond so
they would be better able to subdue Mr. Deweber.
Mr. Deweber then began to back off and the two deputies repositioned. At that
point, Mr. Deweber suddenly ran around to the driver's side of his truck, got in, managed
to navigate around their vehicle and a second police vehicle that was arriving, and drove
away.
Officers followed Mr. Deweber but terminated the chase when it became a danger
to the public. Mr. Deweber, traveling at high speed, had turned off his vehicle lights and
was traveling mostly, and seemingly intentionally, in oncoming lanes of traffic.
Thinking Mr. Deweber might return to his wife's RV, Supervising Patrol Sergeant
Mathew Clarke and Kennewick Police Officer Elizabeth Grant traveled to the vicinity of
Ms. Deweber's RV and positioned themselves along the route they expected Mr.
Deweber to follow if he returned. They pulled off the highway onto a gravel cut out.
One patrol car was parked behind the other, and overhead lights were illuminated on
both.
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Mr. Deweber did return just as Sergeant Clarke was getting his spike strips undone
and ready to deploy. As Mr. Deweber's pickup truck approached, the officers heard it
revving and accelerating. Realizing that "something wasn't right," Sergeant Clarke told
Officer Grant to run, and both fled from their vehicles. RP at 185. This proved prudent,
since Mr. Deweber swerved toward and drove into the police vehicles at high speed,
causing one to flip over and land on top of the other. To the astonishment of Sergeant
Clarke and Officer Grant, who expected Mr. Deweber to be badly injured, he jumped out
of the passenger side window of his truck and although bloodied, ran toward them,
screaming, "[J]ust fucking shoot me." RP at 218. After several taser deployments,
officers on the scene were able to immobilize and detain him.
Mr. Deweber was eventually charged with two counts of assault in the first degree
and with attempting to elude a pursuing police vehicle. The assault charges included an
allegation that he used a deadly weapon-his vehicle4-and a special allegation that the
victims were members of law enforcement.
4 The Washington Criminal Code, Title 9A RCW, defines "deadly weapon" to
include vehicles:
"Deadly weapon" means any explosive or loaded or unloaded firearm, and
shall include any other weapon, device, instrument, article, or substance,
including a "vehicle" as defined in this section, 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.
RCW 9A.04.110(6) (2011).
4
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At trial, the court instructed the jury on first degree assault and the lesser degree
crime of second degree assault, but refused a defense request to instruct the jury on third
degree assault. Unlike first and second degree assault, third degree assault does not
include any method that involves use of a deadly weapon. As the trial court explained,
"[F]or the jury to find the defendant guilty of only Assault in the Third Degree, they
would have to find, beyond a reasonable doubt, that the defendant assaults the officers
but did not use a deadly weapon. I don't think there is substantive evidence to support
that. . . . [I]f in fact he did commit the assault at all, I don't think a jury could find that he
committed assault but did not use a deadly weapon." RP at 444.
On the issue of the law enforcement victim aggravator, the jury was instructed that
if it found Mr. Deweber guilty of assault in the first or second degree, it "must determine
if the following aggravating circumstance exists:
Whether the crime was committed against a law enforcement officer
who was performing his or her official duties at the time of the crime, and
the defendant knew the victim was a law enforcement officer.
Clerk's Papers (CP) at 118 (Jury Instruction 22).
Jurors were given special verdict forms to complete with their determination about
the law enforcement victim aggravator; both special verdict forms asked, for the
respective assault count:
Was the crime ... committed against a law enforcement officer who was
performing his or her official duties at the time of the offense?
5
No. 33247-1.;.III
State v. Deweber
CP at 150-51. Thus worded, the special verdict forms omitted the required statutory
element that a defendant knows the victim to be a law enforcement officer.
The jury found Mr. Deweber guilty of eluding a police vehicle and of both counts
of second degree assault, and answered yes to both law enforcement victim special
verdict forms.
At sentencing, defense counsel objected to the imposition of an exceptional
sentence based on the law enforcement victim aggravator, arguing that because the
special verdict forms framed the question for the jury in terms of some, but not all of the
elements of the aggravator (omitting the requirement that Mr. Deweber knew the victims
were law enforcement officers) the jury did not find every element of the aggravator. But
the trial court was persuaded by the State that the jury instructions correctly stated the
elements of the aggravator. It imposed an exceptional sentence of 86 months of
confinement. It entered findings that the jury had found (along with other required
elements of the aggravator) that "the defendant knew the victims were law enforcement
officers," that the jury's special verdict was supported by substantial evidence, and that
the standard range for the crimes was clearly too lenient in light of the purposes of the
Sentencing Reform Act of 1981, ch. 9.94A RCW. CP at 191. Mr. Deweber appeals.
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No. 33247-1-III
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l ANALYSIS
I Exceptional sentence
Mr. Deweber contends the trial court imposed an exceptional sentence based on an
aggravator all of whose elements were not found by the jury, in violation of his
constitutional right to a jury trial.
Under the Sixth Amendment to the United States Constitution, which includes the
jury trial guarantee for criminal defendants, any fact "[ o]ther than ... a prior conviction
... 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. 466, 490, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000). "[T]he 'statutory
maximum' for Apprendi purposes is the maximum sentence a judge may impose solely
on the basis of the facts reflected in the jury verdict or admitted by the defendant."
Blakely, 542 U.S. at 303. Washington law, applying article I, sections 21 and 22 of the
Washington Constitution, is in accord. State v. Williams-Walker, 167 Wash. 2d 889, 896,
225 P.3d 913 (2010) (citing State v. Frazier, 81 Wn.2d 628,633, 503 P.2d 1073 (1972)).
If a jury "has not found all the facts" the law makes necessary to impose the punishment,
a judge exceeds his authority by inflicting a "punishment that the jury's verdict alone
does not allow." Blakely, 542 U.S. at 304.
As earlier recounted, both special verdict forms addressing the law enforcement
aggravator put a straightforward question to the jury:
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No. 33247-1-III
State v. Deweber
Was the crime ... committed against a law enforcement officer who was
performing his or her official duties at the time of the offense?
CP at 150-51. As the appellant points out, "[H]ad the special verdict form simply asked
the jurors if they found the aggravator, without reference to any of the three findings [that
must support the aggravator], then it could be presumed the jury answered the question
based on the accurate instructions." Reply Br. at 4. 5 Instead, the verdict form asked for
and secured the jury's findings on only two of the three elements. In order to impose the
aggravator the trial court had to find, or infer that the jury found, the third element.
The State argues that because the jury's instruction 22 identified all elements of
the aggravator whose existence (or not) the jury was asked to determine, the trial court
could legitimately infer that in answering "yes" to the special verdict forms, the jury
found all the elements included in the instruction-not just the incomplete elements
included in the verdict forms. To begin with, the trial court could not draw that
inference. The jury was given 22 instructions, which covered 28 pages. It was asked to
complete only 6, single page verdict forms, each of which posed straightforward
5 Here and elsewhere, Mr. Deweber's briefing belies the dissent's "straw man"
argument that Mr. Deweber contends special verdict forms must recite the elements of an
offense or aggravator. In Mr. Deweber's opening brief, he pointed out that in the trial
court, the State mischaracterized his position in this fashion, "fail[ing] to address the
issue raised by Mr. Deweber." Br. of Appellant at 11-12. Mr. Deweber contends only
that if the court chooses to frame the question in a special verdict form by asking about
elements, it must ask about all the elements, since the trial court cannot make its own
finding on an omitted element or infer a jury finding of that element.
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No. 33247-1-III
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questions for jurors to answer. Presumably, they answered the questions posed.
Moreover, the fact that the court was required to draw an inference at all about
what the jury had in mind, going beyond the question it was asked, is fatal to the State's
defense of the exceptional sentence. In Williams-Walker, our Supreme Court held that
under a state constitutional analysis, Blakely error is never harmless. 167 Wash. 2d at 900-
02. "Critically, the sentencing judge can know which (if any) enhancement applies only
by looking to the jury's special findings." Id. at 901-02. The fact that substantial
evidence would support a finding that Mr. Deweber knew the victims to be law
enforcement officers is irrelevant, because Mr. Deweber has not assigned error to the
jury's verdicts but only to the court's imposition of an exceptional sentence that is
unsupported by a sufficient jury finding.
The exceptional sentence must be vacated and Mr. Deweber resentenced.
Refusal to instruct on third degree assault
Mr. Deweber also contends the trial court erred when it denied his request for an
instruction on the lesser degree offense of assault in the third degree. A defendant is
entitled to a lesser degree offense instruction if
( 1) the statutes for both the charged offense and the proposed inferior
degree offense "proscribe but one offense"; (2) the information charges an
offense that is divided into degrees, and the proposed offense is an inferior
degree of the charged offense; and (3) there is evidence that the defendant
committed only the inferior offense.
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State v. Fernandez-Medina, 141 Wash. 2d 448, 454, 6 P.3d 1150 (2000) (quoting State v.
Peterson, 133 Wn.2d 885,891,948 P.2d 381 (1997)). The first two factors are the legal
components of the test, while the third factor entails a factual inquiry. Id. at 454-55.
Only the factual component of the test for giving a lesser degree instruction was
disputed in the trial court. To satisfy the factual component, "the evidence must raise an
inference that only the lesser included/inferior degree offense was committed to the
exclusion of the charged offense." Id. at 455. Accordingly, a trial court should give an
instruction on a lesser degree offense'" [i]fthe evidence would permit a jury to rationally
find a defendant guilty of the lesser offense and acquit him of the greater.'" Id. at 456
(alteration in original) (quoting State v. Warden, 133 Wash. 2d 559, 563, 947 P.2d 708
(1997)).
"When determining if the evidence at trial was sufficient to support the giving of
an instruction, the appellate court is to view the supporting evidence in the light most
favorable to the party that requested the instruction." Id. at 455-56. "[T]he evidence
must affirmatively establish the defendant's theory of the case-it is not enough that the
jury might disbelieve the evidence pointing to guilt." Id. at 456.
The method of first degree assault with which Mr. Deweber was charged was that
provided by RCW 9A.36.01 l(l)(a): intentional assault with a deadly weapon, likely to
produce great bodily harm or death. The method of second degree assault on which the
10
I
i
I
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No. 33247-1-III
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i
jury was instructed as an alternative was that provided by RCW 9A.36.02l(l)(c): assault
with a deadly weapon not amounting to assault in the first degree.
By contrast, a person is guilty of the method of third degree assault urged by Mr.
Deweber as applying if he or she,
under circumstances not amounting to assault in the first or second degree:
(g) Assaults a law enforcement officer or other employee of a law
I! enforcement agency who was performing his or her official duties at the
time of the assault.
I
RCW 9A.36.03l(l)(g) (2013).
I
I
I
Mr. Deweber argues that if the jury concluded his pickup truck struck the police
vehicles under circumstances in which the truck was not readily capable of causing death
I
I
!
or substantial bodily harm, then it could find him guilty of third degree assault but acquit
him of first and second degree assault. But the evidence as to the truck's capacity to
cause harm consisted of the pictures of the vehicles; the testimony of many witnesses to
Mr. Deweber's suicidal behavior; the testimony of a psychologist, testifying for the
defense, that Mr. Deweber intended to cause great bodily injury to himself; the testimony
of multiple officers as to high speeds driven that night by Mr. Deweber; the testimony
that he accelerated before striking the police vehicles; the testimony of a nearby resident
who saw the collision and estimated the speed of the pickup truck as at "[ a]t least a
hundred or more"; Sergeant Clarke's testimony that immediately after the collision he
notified dispatch that he estimated the pickup truck's speed on impact at over a hundred
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No. 33247-1-III
State v. Deweber
miles per hour; his testimony that having looked at his patrol car several times, it was his
opinion that "there is no possible way anybody would have survived inside of my
vehicle"; and Officer Grant's testimony that the damage to the police vehicles was much
worse than damage to vehicles involved in fatal accidents to which she had responded as
a patrol officer and, while she might have survived the impact, "there is no way that
Sergeant Clarke would have." RP at 164, 196, 221. There was no affirmative evidence
suggesting that Mr. Deweber's truck struck the police vehicles in circumstances in which
it was not readily capable of causing death or substantial bodily harm. The trial court did
not err in refusing to instruct the jury on third degree assault.
We affirm the convictions and remand for resentencing. 6
A majority of the panel has determined this opinion will not be printed in the
Washington Appellate Reports, but it will be filed for public record pursuant to RCW
2.06.040.
;j;~w~if·
Siddoway, J.
I CONCUR:
Lawrence-Berrey, A.CJ.
j
6
A postargument motion by Mr. Deweber to deny appellate costs if the State
substantially prevailed on appeal was referred to the panel for decision. Given Mr.
Deweber' s successful challenge to the exceptional sentence, the issue is moot.
12
33247-1-111
KORSMO, J. (dissenting)- Labeling something a Blakely 1 error does not
automatically make it so, let alone render it immune to harmless error analysis. This is a
case in point. Appellant's argument assumes that a Blakely error occurred without
proving such was the case. Appellant points to no relevant authority suggesting that an
allegedly erroneously worded verdict form constitutes Blakely error. But even if this
were a Blakely error, it is absolutely harmless beyond a reasonable doubt because the jury
was instructed on the "elements" of the question it had to answer and responded with a
positive answer. The special verdict was found by the jury, distinguishing this case from
that relied on by the majority. This case involves nothing more than run-of-the-mill
instructional error in the context of the verdict form.
There is no requirement that a verdict form, even a special verdict form, recite all
of the elements of the offense or special verdict. Typically a verdict form would state
something along these lines: "We the jury find the defendant, John Doe, [guilty or
not guilty] of the crime of XX as charged in count I." WPIC 180.01. The elements are
1
Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004).
No. 33247-1-III
State v. Deweber
not recited or discussed in the least. There is no authority I am aware of labeling this
form as defective under Blakely because of the absence of the elements from the verdict.
Similarly, most special verdicts forms simply recite the question to be answered: "Was
the defendant armed with a deadly weapon at the time of the commission of the crime in
count I? _ (Yes or No)." WPIC 190.01. Again, the elements of the deadly weapon
finding are not stated in the verdict form.
In some civil actions, and less often in criminal cases, the jury is asked to answer
one or more questions. These inquiries are of varying complexity depending on the
issues at hand and/or the creativity of the bench and bar. One example from the criminal
side can be found in the capital sentencing statute where the legislature has propounded a
detailed question for the jury to resolve. RCW 10.95 .060(4). In some instances, the
special verdict form recommended by the pattern form committee does consist of a
question that includes the "elements" of the special verdict. E.g., WPIC 36.09 (verdict
distinguishing misdemeanor from felony harassment). However, no authority has been
cited that requires this approach. Typically, element-inspired special verdicts are
reserved for unusual circumstances such as harassment where an additional finding,
somewhat overlapping the elements of the crime, defines the degree of the offense that
the jury has just found. This helps avoid jury confusion.
As important here, however, nothing in our case law requires that the special
verdict form set forth the underlying elements of the special verdict. As long as the jury
2
No. 33247-1-III
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was properly instructed on the elements-as was done in this case-the verdict form
need only assure that the jury is returning a verdict on the question presented to them. An
apt description is all that is necessary so that the jury's determination concerning the
aggravating factor as to each officer was understood by the court. Here, however, the
verdict form reflects an answer to an incomplete interrogatory.
While certainly a plausible argument could be made that the special verdict
conflicted with the definitional instruction, appellant does not pursue that theory.
Instead, he likens this case to Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147
L. Ed. 2d 435 (2000), contending that the jury actually failed to find a necessary fact.
The majority agrees, relying on the decision in State v. Williams-Walker, 167 Wash. 2d 889,
225 P .3d 913 (2010). That case is factually inapposite. There the jury returned a verdict
finding that the defendants had used a deadly weapon rather than answering the
enhancement charged and submitted to the jury--did the defendant use a firearm? Id. at
893-894. The trial court in each instance imposed a firearm enhancement. Id. The court
reversed the findings, concluding that a judge could not make findings that a jury had not
made. Id. at 898-899. Such a practice would render the statutory requirement of a jury
finding meaningless. Id. at 899.
Critical to the court's analysis was the fact that a deadly weapon finding was also
authorized by statute, although none had been alleged in the consolidated cases in
Williams-Walker. Id. at 897-899. The court concluded that a "sentence enhancement
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No. 33247-1-111
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must not only be alleged, it also must be authorized by the jury in the form of a special
verdict." Id. at 900. The court then turned to the question of harmless error. Since the
jury had not returned the special verdict on the charged allegation, the error could never
be harmless because the judge imposed a sentence enhancement that was not authorized
by the jury's finding. Id. at 900-901.
There is distinction between a finding that was never made because the jury was
never asked to respond to the charged enhancement-at issue in Williams-Walker-and a
finding returned in a verdict form that contained error. Erroneous jury verdict forms are,
unfortunately, a recurring problem. When presented with such occurrences, the
reviewing court always has considered whether or not the error was harmless. For
instance, in a prosecution for attempted possession of marijuana with intent to
manufacture or deliver, the verdict form omitted the word "attempted." State v. Imhoff,
78 Wash. App. 349, 350, 898 P.2d 852 (1995). On appeal, Division One concluded that the
error was harmless because the defendant had been charged with the correct offense and
the jury was properly instructed on the elements of attempted possession of marijuana
with intent to manufacture or deliver. Id. at 350-351.
A case more squarely on point to this action is a civil case, Capers v. The Bon
Marche, 91 Wash. App. 138, 955 P.2d 822 (1998). There the special verdict form failed to
include language dictated by an intervening construction of the Washington Law Against
Discrimination issued by the Washington Supreme Court. Id. at 142-143. The court
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No. 33247-1-111
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concluded that, read as a whole, the instructions properly stated the law to the jury. Id. at
143. The "instructions were not legally erroneous merely because the special verdict form
omitted the 'substantial factor' language where its accompanying instruction properly set
forth the applicable law." Id. Thus, "a special verdict form need not recite each and every
legal element necessary to a particular cause of action where there is an accurate
accompanying instruction." Id. at 144. Nonetheless, the instruction was misleading
because it conflicted with the definitional instruction, a problem further complicated by
the defense argument. Id. at 143-144. A new trial was ordered. Id. at 145.
In support of its determination that the special verdict was not legally erroneous
despite the missing language required by the intervening decision, Capers noted several
earlier decisions supporting its view of the governing law. Id. at 143; Hue v. Farmboy
Spray Co., 127 Wash. 2d 67, 90-93, 896 P.2d 682 (1995) (rejecting argument that special
verdict form conflicted with other instructions); Smith v. Sturm, Ruger & Co., 39 Wn.
App. 740, 745, 695 P.2d 600 (1985) (rejecting argument that special verdict did not
contain all necessary elements since it need not unless it purports to do so).
A third case relied on in Capers and in Smith is particularly important in setting
forth the governing law: Ryder v. Kelly-Springfield Tire Co., 91 Wash. 2d 111, 587 P.2d 160
(1978). Capers, 91 Wash. App. at 143; Smith, 39 Wash. App. 745. There the allegation was
that a jury instruction was erroneous and that other instructions should have been given.
The court first noted the basic rule governing review of instructional issues--the
5
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No. 33247-1-III
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appellate court will only consider arguments raised in the trial court. Ryder, 91 Wash. 2d at
114. The court then defined the problem at hand:
An erroneous formula instruction has been said to be one that purports to
contain all the elements necessary for a verdict for either party, but which
neither includes all such elements nor refers to other instructions which do.
Id. at 115. Ryder then rejected the challenge to the instruction at issue because it did "not
purport to summarize all of the issues of the case for the jury." Id.
Similarly here, the special verdict did not purport to be the end-all and be-all
instruction concerning the law enforcement victim aggravating factor. That factor was
defined for the jury by instruction 22. Thus, the special verdict was not erroneous for the
failure to include the entire statutory definition on its form. In combination, the
differences between the definition and the special verdict had the possibility of confusing
the jury, but Mr. Deweber does not raise that argument and we have no authority to
consider it. 2 Id. at 114. Accordingly, on this record we have no basis for overturning the
special verdict. The jury was properly instructed on the law and the special verdict form
did not purport to be the entire law on the subject. We should affirm the special verdict.
2
If the issue had been properly preserved and successfully argued in this appeal,
the remedy would have been remand for a new trial on the aggravating factor. See
generally, State v. Pillatos, 159 Wash. 2d 459, 150 P.3d 1130 (2007).
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No. 33247-1-111
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But even if Mr. Deweber had established error, it was of a different variety from
that in Williams-Walker and, hence, was subject to harmless error analysis. 3 A missing
element is subject to harmless error. Neder v. United States, 527 U.S. 1, 18, 119 S. Ct.
1827, 144 L. Ed. 2d 35 (1999); State v. Brown, 147 Wash. 2d 330, 340-341, 58 P.3d 889
(2002). The error found by the majority is that an element was missing from the verdict
form. Therefore, it needs to address Neder.
In light of the evidence presented that Mr. Deweber was trying to commit "suicide
by cop" when he rammed the patrol vehicles, both of which had overhead lights in
operation, during his exceedingly dangerous efforts to provoke a fatal police response, it
simply cannot be said that the missing language about knowledge of the officers' identity
was harmful in the least. The fact that patrol cars were driven by police officers is the
very reason Mr. Deweber rammed into them in a scene that sounds like it came from a
Hollywood movie. The knowledge aspect of the aggravating factor was never in doubt,
factually or legally. Since the jury was correctly instructed on what it needed to find and
3
A case that is closer factually is State v. Fehr, 185 Wash. App. 505, 341 P.3d 363
(2015), where the verdict form asked if the crimes had been committed within 1,000 feet
of a school bus route instead of a school bus route stop. However, Fehr does not support
the defendant here because it does not appear that the jury was ever instructed on the bus
stop aggravator. Like Williams-Walker, the jury answered a different factual question
than was alleged in the charging document. Here, only one aggravating factor was alleged
and the jury's verdict was, at worst, an incomplete answer to the question presented.
There is a difference between asking the jury to answer the wrong question (Williams-
Walker and Fehr), and asking the correct question in the wrong manner (this case).
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No. 33247-1-III
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the "missing" fact on the special verdict form was not a contested issue, the alleged error
was harmless beyond a reasonable doubt.
Accordingly, the judgment and sentence should be affirmed. Since the majority
concludes otherwise, I respectfully dissent.
8