                                                                                             Filed
                                                                                       Washington State
                                                                                       Court of Appeals
                                                                                        Division Two

                                                                                      December 8, 2015




       IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                           DIVISION II
    STATE OF WASHINGTON,                                             No. 47312-7-II

                                  Respondent,

              v.

    I.R.G.,                                                      UNPUBLISHED OPINION

                                  Appellant.

          JOHANSON, C.J. — I.G. seeks accelerated review of his second degree assault conviction

and the manifest injustice disposition he received.1 A juvenile court found I.G. guilty of second

degree assault by strangulation after a fact-finding hearing. I.G. appeals. We hold that the State

presented sufficient evidence to support I.G.’s conviction for second degree assault and that the

manifest injustice disposition was proper. We affirm.

                                                FACTS

                                        I. BACKGROUND FACTS

          In November 2014, Aberdeen Police Officer Monte Glaser responded to a reported assault

at a local residence. He contacted H.G. and her mother. H.G. explained that she had been assaulted

by I.G., who had left the residence. H.G. told Officer Glaser that she and I.G. had been in an


1
    We refer to the minor parties by their initials for anonymity.
No. 47312-7-II


argument and that I.G. grabbed her throat and neck with both hands when she refused to let I.G.

into her bedroom. Officer Glaser recalled H.G. stating that she could not speak or breathe and he

observed redness extending all the way around H.G.’s throat and neck.

        Officer Glaser then contacted I.G. at his father’s home. I.G. had scratch marks on his face,

which, according to Officer Glaser’s training and experience, appeared to be defensive wounds

consistent with assault by strangulation.

                                            II. PROCEDURE

        The State charged I.G. with second degree assault by strangulation contrary to RCW

9A.36.021(1)(g). At trial, Officer Glaser testified consistently with the facts mentioned above

regarding his response and investigation. H.G. testified that what began as a “little cat fight”

escalated when I.G. grabbed H.G.’s neck with both hands, choking her. Report of Proceedings

(RP) at 19. H.G. described her inability to breathe when I.G. squeezed her neck “really hard,”

stating that she was gasping for air. RP at 20. She also recalled her attempts to hit I.G. to get him

off of her.

        After hearing all the evidence, the trial court entered these relevant findings of fact and

conclusions of law:

        6.     [I.G.] grabbed [H.G.]’s throat with both of his hands and applied full
               pressure to her throat and neck.
        7.     [H.G.] was unable to breathe or speak and gasped for air.
        8.     [H.G.] [i]nstinctively scratched [I.G.]’s face in an effort to get him to release
               his grip on her throat.
        ....
                                   CONCLUSIONS OF LAW
        ....
        6.     The Finder of Fact was convinced beyond a reasonable doubt that [I.G.]
               strangled [H.G].
        7.     All other elements of Assault 2˚ were established.
        8.     [I.G.] is guilty as charged of Assault 2˚.

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No. 47312-7-II



Clerk’s Papers (CP) at 13.

       I.G.’s standard range disposition was 15 to 36 weeks. The juvenile court, however, was

unconvinced that a disposition of that length was adequate considering the court’s “significant

history with [I.G.].” RP at 34-35. The court ordered I.G. to undergo a psychological evaluation

with Dr. Keith Krueger.

       At the disposition hearing, I.G.’s probation officer recommended a disposition of 52

weeks—based in part on Dr. Krueger’s report—and the State concurred. The foundation of Dr.

Krueger’s report was information obtained from a lengthy interview with I.G. The report

documented I.G.’s troubled past beginning with truancies, “youth at risk” proceedings, and failed

drug treatment efforts.      Dr. Krueger concluded that I.G. suffered from cannabis and

methamphetamine use disorders and an unspecified anxiety disorder. In Dr. Krueger’s view, the

need for further chemical dependency treatment was “obvious.” Suppl. CP at 37.

       The report also included the suggestion that future treatment efforts include extensive

social skills training with drug treatment and relapse prevention. Dr. Krueger concluded that if

I.G. were to be placed in a secure residential drug facility with intensive treatment programs, I.G.

would need at least a 6-month period of supervision, but if he were placed into a less intensive

program, 9 to 12 months would be required.

       The juvenile court expressed its concerns regarding I.G.’s mental health and drug treatment

needs. Based on Dr. Krueger’s report, the court also found that I.G. was clearly a risk to remain




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No. 47312-7-II


safely in the community. The court found specifically that (1) I.G. inflicted serious bodily injury

to another in the commission of his crime, (2) there were other complaints which have resulted in

diversion or a finding or plea of guilt not included as criminal history, (3) I.G. was a threat to the

community, (4) he was beyond parental control, and (5) I.G. had mental health and drug treatment

needs that could not be addressed in the community. The juvenile court found that a manifest

injustice would result from a standard range disposition. Therefore, the court directed I.G. to be

committed to a Juvenile Rehabilitation Administration facility for 80 to 100 weeks. I.G. appeals.

                                            ANALYSIS

       I. SUFFICIENT EVIDENCE SUPPORTS A CONVICTION FOR SECOND DEGREE ASSAULT

       I.G. contends that the State presented insufficient evidence to support his conviction for

second degree assault. Specifically, I.G. argues that the State failed to prove that I.G. obstructed

H.G.’s ability to breathe or that he intended to obstruct H.G.’s ability to breathe in part because

the State presented no medical testimony regarding H.G.’s injuries. We disagree.

       To determine whether sufficient evidence supports a conviction, we view the evidence in

the light most favorable to the prosecution and determine whether any rational fact finder could

have found the elements of the crime beyond a reasonable doubt. State v. Engel, 166 Wn.2d 572,

576, 210 P.3d 1007 (2009). In claiming insufficient evidence, the defendant admits the truth of

the State’s evidence and all reasonable inferences that can be drawn from it. State v. Drum, 168

Wn.2d 23, 35, 225 P.3d 237 (2010). We defer to the trier of fact on issues of conflicting testimony,

witness credibility, and the persuasiveness of the evidence. State v. Thomas, 150 Wn.2d 821, 874-

75, 83 P.3d 970 (2004).




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No. 47312-7-II


       Following a bench trial, our review is limited to determining whether substantial evidence

supports the findings of fact, and if so, whether the findings support the conclusions of law. State

v. Homan, 181 Wn.2d 102, 105-06, 330 P.3d 182 (2014). “Substantial evidence” is evidence

sufficient to persuade a fair-minded person of the truth of the asserted premise. Homan, 181 Wn.2d

at 106. We review challenges to a trial court’s conclusions of law de novo. State v. Gatewood,

163 Wn.2d 534, 539, 182 P.3d 426 (2008).

       To prove that I.G. committed second degree assault, the State had to establish that, under

circumstances not amounting to first degree assault, I.G. “[a]ssault[ed] another by strangulation or

suffocation.” RCW 9A.36.021(1)(g). “‘Strangulation’ means 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.” RCW 9A.04.110(26).

       Here, I.G. first argues that the State failed to demonstrate that he obstructed H.G.’s ability

to breathe. He assigns error to the court’s findings that he grabbed H.G.’s throat and applied

pressure, rendering H.G. unable to breathe.

       But H.G. testified that when I.G. placed both of his hands around her neck and squeezed

her, she “could [not] breathe” and she was “gasping for air.” RP at 20. H.G. later answered

affirmatively when the State asked whether I.G. blocked off her air so that she could not breathe.

Officer Glaser testified that he observed red marks all the way around H.G.’s neck when he

responded to the reported crime. And H.G. told Officer Glaser she could not speak or breathe.




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No. 47312-7-II


        This testimony constitutes evidence sufficient to persuade a fair-minded person of the truth

of the asserted premise. Homan, 181 Wn.2d at 106. The juvenile court’s findings that (1) I.G.

grabbed H.G.’s throat with both hands and applied pressure to her neck and (2) H.G. was unable

to breathe or speak and gasped for air are therefore supported by substantial evidence. These

findings of fact also support the court’s conclusion of law that the State proved each element of

the charged crime. RCW 9A.36.021(1)(g). I.G.’s argument that the State failed to prove that he

intended to obstruct H.G.’s ability to breathe or that he did in fact do so is therefore unavailing.

        Second, I.G. argues that the State failed to present sufficient evidence because it did not

provide expert medical testimony. We reject this contention because I.G. cites no authority to

suggest that expert medical testimony is required to demonstrate obstruction of airflow or breath

when a victim testifies that he or she could not breathe. We hold I.G.’s insufficiency arguments

fail.

                               II. MANIFEST INJUSTICE DISPOSITION

        I.G. next argues that the juvenile court erred by finding that a standard range disposition

would effectuate a manifest injustice and by imposing a disposition well beyond the standard

range. Specifically, I.G. contends that the reasons given by the juvenile court do not clearly and

convincingly support a manifest injustice disposition and that the disposition is clearly excessive.

Again, we disagree.




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No. 47312-7-II


                                        A. RULES OF LAW

       A court may impose a disposition outside the standard range for a juvenile offender if it

determines that a disposition within the standard range would “effectuate a manifest injustice.”

RCW 13.40.160(2); State v. Beaver, 148 Wn.2d 338, 345, 60 P.3d 586 (2002). “‘Manifest

injustice’ means a disposition that would either impose an excessive penalty on the juvenile or

would impose a serious, and clear danger to society in light of the purposes of the [Juvenile Justice

Act of 1977, ch. 13.40 RCW].” RCW 13.40.020(19); State v. M.L., 134 Wn.2d 657, 660, 952 P.2d

187 (1998). These purposes include protecting the citizenry from criminal behavior; making the

juvenile accountable for his or her criminal behavior; providing for punishment commensurate

with the age, crime, and criminal history of the juvenile; and providing necessary treatment,

supervision, and custody of juvenile offenders. RCW 13.40.010(2)(a)-(f).

       To uphold a disposition outside the standard range, an appellate court must find that (1) the

reasons supplied by the disposition judge are supported by the record before the judge, (2) those

reasons clearly and convincingly support the conclusion that a disposition within the standard

range would constitute a manifest injustice, and (3) the sentence imposed was neither clearly

excessive nor clearly too lenient. RCW 13.40.230(2); M.L., 134 Wn.2d at 660. A disposition is

clearly excessive “‘only when it cannot be justified by any reasonable view which may be taken

of the record.’” State v. T.E.C., 122 Wn. App. 9, 17, 92 P.3d 263 (2004) (internal quotation marks

omitted) (quoting State v. Tauala, 54 Wn. App. 81, 87, 771 P.2d 1188 (1989)). And in determining

the appropriate disposition, a trial court may consider both statutory and nonstatutory aggravating

factors. State v. J.V., 132 Wn. App. 533, 540-41, 132 P.3d 1116 (2006).




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No. 47312-7-II


                       B. THE REASONS GIVEN CLEARLY AND CONVINCINGLY
                          SUPPORT THE MANIFEST INJUSTICE DISPOSITION

        Here, the juvenile court supplied these reasons in support of its determination that a

sentence within the standard range would effectuate a manifest injustice: (1) that I.G. inflicted

serious bodily injury in the commission of his crime, (2) there were other complaints which have

resulted in a diversion or guilty pleas not included as criminal history, (3) that I.G. was a threat to

the community, (4) that I.G. was beyond parental control, and (5) that I.G. had mental health and

drug treatment needs that could not be addressed in the community. I.G. appears to contest

whether the reasons given clearly and convincingly support the manifest justice determination.2

        The juvenile court based its findings primarily on its previous experience with I.G. and on

Dr. Krueger’s evaluation report. In its oral ruling, the court noted that I.G. has defied court orders

on “dozens” of occasions, the seriousness of his behavior and his drug use have escalated steadily,

I.G. has not benefitted meaningfully from previous in-patient treatment and counseling programs,

the safety of those who live in his home would be an ongoing concern were he to be released in a

short while, his parents either lack control or opt not to exercise control, and I.G.’s intensive

treatment needs cannot be addressed in the community in a local setting because I.G. would not

participate if released.

        Dr. Krueger concluded that I.G.’s need for further chemical dependency treatment was

obvious because of his marijuana and methamphetamine abuse. He also noted that I.G.’s track

record in open, nonrestrictive programs was poor as he “ran” from one such program at least five



2
 I.G. does not appear to challenge whether substantial evidence in the record supports the reasons
articulated by the juvenile court. I.G. also appears to suggest that the court should not have
considered I.G.’s record as a truant, but the court did not rely on I.G.’s history of truancy as part
of its manifest injustice finding.
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No. 47312-7-II


times. Suppl. CP at 37. Even following a confined treatment program, I.G. relapsed and continued

using drugs shortly thereafter. Dr. Krueger recommended extensive social skills training with drug

treatment and relapse prevention. Dr. Krueger opined that I.G. could need 6 to 12 months of

treatment.

       The juvenile court specifically incorporated Dr. Krueger’s report into the record before it.

And we review the entire record on appeal, including the oral opinion of the disposition judge.

State v. E.J.H., 65 Wn. App. 771, 775, 830 P.2d 375 (1992). It is evident that the court’s findings

were supported by the record before it and that clear and convincing evidence supports the court’s

manifest injustice determination. See T.E.C., 122 Wn. App. at 20-21 (finding that a sexual

evaluation provider’s recommendations provided the court with clear and convincing evidence to

support the aggravating factor on which a court based its manifest injustice disposition). It was

apparent to the juvenile court, based on its experience with I.G. and the recommendations of a

clinical psychologist, that 15 to 36 weeks was not enough time for I.G. to receive meaningful

treatment or to achieve appreciable progress.

                    C. THE DISPOSITION WAS NOT CLEARLY TOO EXCESSIVE

       I.G.’s contention that the 15- to 36-week standard range disposition was not clearly too

lenient and that the manifest injustice disposition was clearly too excessive is also unpersuasive.

First, I.G. contends that nothing in the record indicates that a length of confinement beyond the

standard range is necessary. But Dr. Krueger’s opinion that I.G. could need 6 to 12 months of

treatment provides a reasonable basis on which to conclude that a standard range disposition was

inadequate.




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No. 47312-7-II


       Next, I.G. contends the length of the disposition was clearly excessive. We disagree. Once

a juvenile court has concluded that a disposition within the standard range would effectuate a

manifest injustice, the court is vested with broad discretion in determining the appropriate sentence

to impose. M.L., 134 Wn.2d at 660. We will reverse a juvenile court’s ruling regarding the length

of a manifest injustice disposition only when we determine that the court abused its discretion.

State v. N.B., 127 Wn. App. 776, 782, 112 P.3d 579 (2005). While the duration of the manifest

injustice disposition here extends beyond the length of treatment recommended, our courts have

recognized that when a specific duration of treatment is not the sole basis for a manifest injustice

disposition, such a disposition may exceed the length of treatment. N.B., 127 Wn. App. at 782.

       There were several factors that compelled the court to conclude that a disposition within

the standard range would effectuate a manifest injustice.         I.G. cannot demonstrate that no

reasonable view of the record justifies the court’s departure from the standard range and, therefore,

the disposition is not clearly excessive.

       Finally, as part of his argument that his disposition was clearly excessive, I.G. appears to

argue that the court improperly relied on his having caused serious injuries to H.G. as an

aggravating factor because the legislature has already envisioned that fact as part of the charged

crime. Although this particular factor is specifically delineated by statute among several others as

factors that the legislature has expressly authorized courts to consider, RCW 13.40.150(3)(i), I.G.

is correct that courts may not rely on factors necessarily contemplated by the legislature in defining

the standard range or which inhere in the charged crime. State v. E.A.J., 116 Wn. App. 777, 789,

67 P.3d 518 (2003) (noting that serious bodily injury from choking formed the basis for second

degree assault when a victim was choked until she was rendered unconscious). We assume that


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No. 47312-7-II


serious bodily injury inheres in any charge for second degree assault by strangulation and,

therefore, the juvenile court erred by considering that factor in making its manifest injustice

finding.

          But we reject I.G.’s argument because when an exceptional sentence is based on both

proper and improper grounds, we do not have to remand for resentencing if we are satisfied that

the trial court would have imposed the same sentence absent consideration of the improper

grounds. State v. Bedker, 74 Wn. App. 87, 100-01, 871 P.2d 673 (1994). Here, a review of the

record reveals that I.G.’s need for treatment, his lack of parental control, and the danger he posed

to others in his household were the principal factors on which the juvenile court relied.

          Of the five factors in the court’s written findings, the court mentioned each in its oral ruling

except for the serious bodily harm factor. The juvenile court stated that it was relying in large part

on Dr. Krueger’s report, which is almost completely dedicated to I.G.’s drug abuse, his home life

and family history, and his need for continued treatment. We decline to remand for resentencing

because the juvenile court clearly would have imposed the same sentence absent the improper

factor.

          Therefore, we hold that the reasons supplied by the juvenile court are supported by the

record, those reasons clearly and convincingly support the court’s conclusion that a disposition

within the standard range would effectuate a manifest injustice, and the disposition imposed was

not clearly excessive.




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No. 47312-7-II


        We affirm.

        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.



                                                    JOHANSON, C.J.
 We concur:



 BJORGEN, J.




 MAXA, J.




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