      IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON

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STATE OF WASHINGTON,
                                                         No. 71067-2-1                    3a*
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                        Respondent,
                                                         DIVISION ONE                     no
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BRIAN BRUSH,                                             UNPUBLISHED OPINION
                                                                                          GO     O —


                        Appellant.                       FILED: May 12. 2014



       Spearman, C.J. — Brian Brush was convicted of aggravated first degree

murder and ordered to serve an exceptional sentence of 1,060 months of

incarceration. He appeals. We affirm the judgment and remand for resentencing.

                                             FACTS

        On September 11, 2009, at approximately 4:40 p.m., three police officers

were on foot patrol at a car show in Long Beach, Washington. As they were

patrolling, they heard a gunshot on the beach. When they looked in the direction

of the shot, they saw Brian Brush fire a shotgun three more times, thereby killing

his girlfriend, Lisa Bonney, who stood a few feet away.1
        The three officers approached Brush, their weapons drawn. When Brush,

a former police officer, observed the approaching officers, he tossed the shotgun

aside, walked towards the officers, and followed their commands as they secured


        1A number of other individuals also observed the shooting. In particular, two tourists
testified that they observed the shooting and Brush being taken into custody.
No. 71067-2-1/2


the area. As Brush was on the ground being handcuffed, Raymond Police Officer

Arlie Boggs asked him if he had been shooting at a human being; Brush

responded "yes." Verbatim Report of Proceedings (10/12/11) at 9. Boggs then

read Brush Miranda2 warnings. When asked if he wanted to talk to police, Brush

replied, "no". VRP (10/12/11) at 12.

       A short time later, Deputy Chief Heath Layman of the Cosmopolis Police

Department arrived on the scene and took control of Brush from the other

officers. At 4:48 p.m. Layman re-read Brush his Miranda rights from a preprinted

form which included "Yes" and "No" check boxes for officers to indicate whether a

suspect wished to answer questions. When Layman asked Brush if he wished to

talk Brush replied that he would talk to police once he was removed from the

crime scene. Layman checked the box labeled "No." VRP (10/12/11) at 54.

Layman did not ask Brush, who was handcuffed, to sign the form in the space

provided.

        After about forty-five minutes, Brush was transported to the Pacific County

Sheriff's Office, where he was interviewed by Layman and Ron Clark, the Pacific

County Undersheriff. The officers recorded the interview, which commenced at

5:52 p.m. Exhibit H (5:52 p.m.).3 The beginning of the recording contains Brush's

acknowledgment that he was previously advised of his constitutional rights,

however the recording includes no admonishment of Miranda warnings or that

the interview was being recorded.


        2 Miranda v. Arizona. 384 U.S. 436, 86 S.Ct. 1602, 16 LEd.2d 694 (1966).
        3 Exhibit H contains transcripts of two recorded interviews with Brush. They are
distinguished herein by notation of the start time of each interview (5:52 p.m. or 7:27 p.m.).
No. 71067-2-1/3


       In the 5:52 p.m. statement, Brush described his volatile relationship with

Bonney and the abuse he allegedly suffered at her hands. He also indicated that

he had no memory of shooting Bonney. After about thirty minutes, Brush

requested an attorney and the interview stopped.

       Later that evening, Layman received a phone call from Chief Flint Wright

of the Long Beach Police Department. Chief Wright told Layman that Brush had

changed his mind and wanted to continue talking.4 Layman was also informed

that he was the only person to whom Brush was willing to talk. Layman returned

to the Pacific County Sheriff's Office and conducted a second recorded interview

of Brush, which lasted from 7:27 to 7:39 p.m. The second interview began with

an admonishment of the Miranda warnings, Brush's waiver of his rights, and

notice that the interview was being recorded. In this statement, Brush described

how Bonney had scratched him, hit him, and verbally abused him. He told

Layman that prior to the shooting he had tried to get in the truck and get away

from Bonney. He also stated that he had no memory of retrieving the gun from

the truck or shooting Bonney. Layman ended the interview at 7:39 p.m. after

Brush reiterated that he could not remember shooting Bonney. Prior to ending

the recording, Layman confirmed that Brush understood he was being charged

with murder.

       While incarcerated in the Pacific County Jail, Brush made a telephone call

to his ex-wife, which was recorded. During the brief conversation, Brush asked


       4There was no testimony or other evidence detailing the nature of communications
between Chief Wright and Brush or between anyjail staffand Brush before Chief Wright informed
Deputy Chief Layman that Brush wanted to talk again.
No. 71067-2-1/4


his ex-wife to contact his family; he also said to her three times: "I killed Lisa."

VRP (11/29/11) at 24.

                                         Procedural History

        The state charged Brush with first degree murder, and alleged as

aggravating factors that (1) Brush manifested deliberate cruelty to the victim

during the commission of the crime, (2) the offense involved "aggravated

domestic violence,"5 and (3) the victim's injuries substantially exceeded the level

of bodily harm necessary to satisfy the elements of the offense. RCW

9.94A.535(a),(h)(i) and (iii), and (y), respectively.6 CP at 11-13. The trial was

bifurcated so jurors would not hear evidence of an ongoing pattern of abuse (in
support of subsection (h)(i)) until the sentencing phase.7 In defense against the
charge, Brush claimed diminish capacity, i.e., that he had a mental illness or
disorder that rendered him incapable of either premeditating or forming the intent

to kill Bonney.

        Prior to trial, a CrR 3.5 hearing was held to determine the admissibility of

Brush's statements to police. Brush asserted that all three of his statements to


        5As charged in this case, the State alleged pursuant to RCW 9.94A.535(3)(h):
"The current offense involved domestic violence, as defined in RCW 10.99.020, or
stalking, as defined in RCW 9A.46.110, and one or more ofthe following was present: (i)
The offense was part ofan ongoing pattern of psychological, physical, or sexual abuse of
a victim or multiple victims manifested by multiple incidents over a prolonged period of
time;... or (iii) The offender's conductduring the commission of the currentoffense
manifested deliberate cruelty or intimidation of the victim." CP at 225.

        6The State also alleged a firearms aggravator under RCW 9.94A.533(3)(a) which
is not disputed on appeal.

        7Although the State did not offer evidence ofdomestic violence in the guilt phase, some
evidence of domestic violence was elicited from the defense psychological expert, Dr. Christiane
Tellefsen. Dr. Tellefsen testified about threats Brush made to Bonney, an incident in which he
stalked her after a concert, an angry confrontation at Bonney's friend's house, and the generally
volatile nature of their relationship.
No. 71067-2-1/5


the police should be suppressed: the first, because it was obtained in violation of

Miranda, supra.; the second and third because they were tainted by the first

statement, which he argued was involuntary and coerced. He also argued that

the recorded statements were obtained in violation of his right to remain silent

and right to counsel. The court agreed that Brush's initial confession to shooting

at a human was obtained in violation of his Miranda rights and granted his motion

to suppress that statement, but it found the two statements recorded at the police

station admissible.

       Jury selection lasted two days. A jury, including three alternate jurors, was

sworn to try the case. On the third day of trial, Juror 1 informed the court that his

employer had purchased him a plane ticket for a business trip to Alaska. He had

received no advance notice, and the trip was expected to last a month. Juror 1

told the court that missing the trip would cost him a $4,000 business opportunity

and create a financial hardship for him and his family, for which he was the

primary earner. The juror also asserted that missing the trip would not impact his

"ability to concentrate fully on the trial." VRP (11/28/11) at 18. The court excused

the juror over Brush's objection.

       During the guilt phase, Dr. Clifford Nelson, the medical examiner who

conducted the autopsy of Bonney, testified regarding Bonney's injuries and the

mechanics of the shooting. Over Brush's objection, Dr. Nelson described this

homicide as one of the two worst he had observed in terms of being "gratuitously

violent" and causing damage in excess of that necessary to kill someone. VRP

(11/30/11) at 46.
No. 71067-2-1/6


       At the close of evidence, Brush objected to the court's jury instructions

defining the alleged aggravating factors, but he gave no specific reasons and did

not propose any alternative instructions. He did not object to any of the special

verdict forms. The jury found Brush guilty of first degree murder. The jury also

found via special verdicts that (1) Brush and Bonney were members of the same

household or family; (2) Brush was armed with a firearm when the crime was

committed; (3) Brush's conduct during the commission of the crime manifested

deliberate crueltyto the victim; (4) the victim's injuries exceeded the level of

bodily harm necessary to satisfy the elements of the offense; and (5) the crime
was an aggravated domestic violence offense based on deliberate cruelty and

excessive bodily harm to the victim.

       Following the verdicts, the second phase ofthe trial commenced in which
the State presented evidence ofa pattern of domestic violence between Brush
and Bonney. The State offered testimony from Bonney's daughter, Elizabeth
Bonney (herein, "Elizabeth"), regarding allegations Bonney had made about prior
incidents of domestic violence involving Brush.8 The trial court admitted the

evidence over Brush's hearsay objection. The jury returned a sixth special verdict

finding that the crime was an aggravated domestic violence offense based on an
ongoing pattern of abuse over a prolonged period of time.
        Brush moved for a new trial based on the trial court's dismissal of Juror 1.

The trial court denied the motion. The court determined the maximum standard

range sentence, including the firearms enhancement was 380 months, but

        8 Elizabeth also testified in the guilt phase, establishing that Bonney and Brush had a
dating relationship of almost two years and that during much of this time they cohabitated.
No. 71067-2-1/7


imposed an exceptional sentence of 1,060 months based on the jury's special

verdicts.

       Brush appeals.

                                       DISCUSSION

       Brush argues that his conviction should be overturned because his three

statements to police were improperly admitted at trial and because the trial court

violated his right to have his trial completed by a particular tribunal. Brush also

claims that the aggravating factors upon which the court relied to impose the

exceptional sentence are not supported by the record. We reject Brush's

challenges to the guilty finding but agree that the exceptional sentence must be

reversed. Accordingly, we affirm the judgment, but remand for resentencing.

                                               I.


       Brush asserts that each of his three statements to police was obtained in

violation of his rights under the Fifth Amendment of the United States

Constitution. He argued below, and the trial court agreed, that his initial

affirmative response to the officer's question whether he was shooting at a

human was inadmissible because it was the result of an interrogation which took

place prior to admonishment of his constitutional rights.9 He now contends that
the initial statement was also involuntary, thereby rendering the subsequent

recorded statements to police tainted and inadmissible. He further contends that

his two recorded statements were obtained in violation of Miranda.




       9 The State does not contest this ruling on appeal.

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No. 71067-2-1/8


      We subject constitutional errors, including Miranda violations, to harmless

error analysis. State v. Boggs, 16 Wn. App. 682, 689-90, 559 P.2d 11 (1977). To

establish harmless error on appeal, the beneficiary of a constitutional error must

establish beyond a reasonable doubt that the error complained of did not

contribute to the verdict obtained. ]d. (citing Chapman v. California, 386 U.S. 18,

24, 87 S.Ct. 824, 828, 17 L.Ed.2d 705 (1967)). Courts applying this standard

have held harmless the admission of statements obtained in violation of a

defendant's constitutional rights where there is overwhelming independent

evidence of guilt, |d (citing Harrington v. California, 395 U.S. 250, 251, 89 S.Ct.

1726, 23 LEd.2d 284 (1969): see also State v. Nist. 77 Wn.2d 227, 234-35, 461

P.2d 322 (1969)).

       Even assuming that Brush's statements to police were obtained in

violation of his Fifth Amendment rights, any error in admitting the statements was

harmless beyond a reasonable doubt. The record discloses that at least five

eyewitnesses identified Brush as the individual they watched shoot and kill

Bonney. The jury also heard the recording of Brush's jailhouse telephone call to

his ex-wife, in which he confessed to the murder three times. In addition, Brush

conceded at trial that he killed Bonney, arguing only that he could not have

premeditated the act or formed the intent to kill her because of a mental disease
or disorder. Based on these factors, we conclude any error in admitting the

challenged statements was harmless beyond a reasonable doubt.




                                          8
No. 71067-2-1/9


                                               II.


       Brush next contends that the two recordings of his statements at the

police station were obtained in violation of the RCW 9.73.090 (the Privacy Act)

and that trial counsel's failure to object on this basis constituted ineffective

assistance of counsel under Strickland v. Washington, 466 U.S. 668, 104 S.Ct.

2052, 80 L.Ed.2d 674 (1984).10

       The admission of evidence obtained in violation of the Privacy Act is not

constitutional error and may be held harmless unless, within reasonable

probabilities, had the error not occurred, the outcome of the trial would have

been materially affected. State v. Howard, 127 Wn. App. 862, 871, 113 P.3d 511

(2005); State v. Cunningham, 93 Wn.2d 823, 831, 613 P.2d 1139 (1980). The

parties dispute whether Brush may raise error based on a Privacy Act violation

for the first time on appeal. We need not resolve the issue, because even

assuming the issue is properly before us and that the recordings were

erroneously admitted in violation of the Privacy Act, the error was harmless,

given the overwhelming, independent evidence of Brush's guilt. For this same

reason, Brush's ineffective assistance of counsel claim fails since he cannot

establish, as required by Strickland, that he was prejudiced by trial counsel's

failure to object to the evidence.




        10 Under Strickland, a defendant claiming ineffective assistance of counsel must show
that counsel was deficient and that the defendant was prejudiced by trial counsel's deficient
performance. State v. Thomas. 109 Wn.2d 222, 225, 743 P.2d 816 (1987).
No. 71067-2-1/10


                                          III.


       Brush claims the trial court's dismissal of Juror 1, violated his right to be

tried by a jury he helped to select. Removal of a juror is reviewed for abuse of

discretion. State v. Jorden, 103 Wn. App. 221, 226, 11 P.3d 866 (2000); see also

State v. Hughes, 106 Wn.2d 176, 204, 721 P.2d 902 (1986). A trial court

"'necessarily abuses its discretion by denying a criminal defendant's

constitutional rights.'" State v. Iniguez, 167 Wn.2d 273, 280, 217 P.3d 768 (2009)

(quoting State v. Perez, 137 Wn. App. 97, 105, 151 P.3d 249 (2007)).

       We conclude the trial court's dismissal of Juror 1 was not an abuse of

discretion. RCW 2.36.100(1) gives the trial court authority to excuse a person

from jury service "upon a showing of undue hardship, extreme inconvenience,

public necessity, or any reason deemed sufficient by the court for a period of time

the court deems necessary." The law "'vests...a wide discretion to be exercised

in the matter of excusing persons summoned for jury service from the

performance of that duty.'" (Emphasis added.) State v. Slert, 169 Wn. App. 766,

787, 282 P.3d 101 (2012) rev, granted in part, 176 Wn.2d 1031 (2013)(quoting

State v. Ingels, 4 Wn.2d 676, 682-83, 104 P.2d 944 (1940): accord State v. Rice,

120 Wn.2d 549, 562, 844 P.2d 416 (1993)).

       Here, on the third day of trial, before any evidence was heard, Juror 1

advised the court that his employer had purchased him a plane ticket to go to

Alaska for employment purposes. He informed the court that he was the sole

breadwinner for his family and that missing the Alaska trip would result in lost

income of over $4,000. He stated that a delay of even a day or two would cost


                                          10
No. 71067-2-1/11


him the opportunity entirely. The juror also forthrightly stated that missing the trip

would not impact his ability to concentrate fully on the trial. The court then found

that continued service on the jury "would be an undue financial hardship on this

gentleman." (VRP (11/28/11) at 21-23.

        Brush argues that the trial court abused its discretion because regardless

of the hardship, the juror indicated he could still perform his duties as a juror. But

where such service would cause the juror undue hardship, RCW 2.36.100(1)

expressly permits the judge to dismiss the juror. The trial court's finding that

missing the business trip would cause Juror 1 undue hardship is supported by

the record. There was no abuse of discretion.11

                                                IV.


        Lastly, Brush claims that the trial court erred in imposing an exceptional

sentence. On review of an exceptional sentence an appellate court must (1)

make a factual inquiry to determine whether the record supports the jury's special

verdict on the aggravating circumstance under a clearly erroneous standard; (2)

conduct a de novo review to determine whether the trial court's reasons for

imposing an exceptional sentence are substantial and compelling; and (3) make

a determination as to whether the trial court abused its discretion by imposing a

sentence that is clearly excessive or clearly too lenient under the abuse of


        11 Brush also argues that dismissal of Juror 1 violated his rights under the double
jeopardy clause of the Fifth Amendment. He cites Crist v. Bretz. 437 U.S. 28, 35-36, 98 S.Ct.
2156, 57 L.Ed.2d 24 (1978), in support. In that case, charges against the defendant were
dismissed on the State's motion after the jury was empaneled and sworn, but before the first
witness was sworn. The State refiled the charges and the defendant moved to dismiss on double
jeopardy grounds. The issue in the case was whether jeopardy attached after the jurywas
empaneled and sworn, as provided bythe federal constitution, or after the first witness is sworn
as provided by a Montana statute. The case is inapposite since Brush does notclaim, nor could
he, that he was at any time subject to jeopardy a second time regarding this offense.

                                                11
No. 71067-2-1/12


discretion standard. State v. Fowler, 145 Wn.2d 400, 405-06, 38 P.3d 335

(2002).

       Under RCW 9.94A.535(3), a trial court has substantial and compelling

reasons to impose an exceptional sentence if a jury finds any of several

enumerated aggravating factors. Thus, in this case, the second prong of our

analysis is satisfied because the trial court expressly based the exceptional

sentence on the jury's special verdicts finding four statutory aggravating factors:

deliberate cruelty under subsection (3)(a); excessive injury to the victim under

subsection (3)(y); and two factors related to domestic violence under subsection

(3)(h)(i) and (iii). Thus, our inquiry is limited to whether the record supports the

special verdicts and, if so, whether the sentence imposed was clearly excessive.

          Under subsection (3)(a), a jury may find an aggravating factor if:

                (a) The defendant's conduct during the commission of the
                    current offense manifested deliberate cruelty to the
                    victim.


"Deliberate cruelty" requires a showing "of gratuitous violence or other conduct

that inflicts physical, psychological, or emotional pain as an end in itself.... [T]he

cruelty must go beyond that normally associated with the commission of the

charged offense or inherent in the elements of the offense. . . ." State v. Tili, 148

Wn.2d 350, 369, 60 P.3d 1192 (2003) (citation omitted).

          Here, the record indicates that the shooting of Bonney happened very

rapidly; the entire incident was over in seconds and the actual shots occurred in

rapid succession. Although the first nonlethal shot undoubtedly caused Bonney

pain, there is no indication that Brush deliberately sought to inflict pain as an end


                                            12
No. 71067-2-1/13


in itself or to prolong Bonney's suffering in any way. Indeed, the evidence is to

the contrary; all of the eyewitnesses suggested that he fired the second lethal

shot almost immediately after the first. Given this evidence, we conclude that the

jury's special verdict finding "deliberate cruelty" is unsupported by the record and

clearly erroneous.

       The jury also returned special verdicts finding Brush's crime was an

"aggravated domestic violence offense" under RCW 9.94A.535(3)(h)(i) and (iii).

CP at 232. Subsection (3)(h)(i) authorizes the jury to find an aggravating factor if:

              (i) The offense was part of an ongoing pattern of
       psychological, physical, or sexual abuse of the victim manifested by
       multiple incidents over a prolonged period of time;...

       Brush argues that the jury's special verdict on subsection (3)(h)(i) should

be vacated because the trial court's instruction on that aggravating factor—Jury

Instruction 26—was an improper comment on the evidence. Specifically, he

challenges that portion of the instruction emphasized below:

             An 'ongoing pattern of abuse' means multiple incidents of
       abuse over a prolonged period of time. The term 'prolonged period
       of time' means more than a few weeks.

Supp. CP at 229; see also, 11A Washington Practice: Washington Pattern

Jury Instructions: Criminal 300.17, at 720 (3d ed. 2008).

       The Washington State Constitution, article IV, section 16, provides

"fj]udges shall not charge juries with respect to matter of fact, nor comment

thereon, but shall declare the law." A judge impermissibly comments on the

evidence when he conveys a personal attitude toward the merits of the case.

State v. Ratliff, 121 Wn. App. 642, 646, 90 P.3d 79 (2004). An instruction


                                         13
No. 71067-2-1/14


improperly comments on the evidence if the instruction resolves a disputed issue

of fact that should have been left to the jury. State v. Eaker, 113 Wn. App. 111,

118, 53 P.3d 37 (2002). When a judge comments on the evidence in a jury

instruction, we presume prejudice and the burden is on the State to show that the

defendant was not prejudiced unless the record affirmatively show that no

prejudice could have resulted. State v. Jackman, 156 Wn.2d 736, 743, 132 P.3d

136(2006).

       In State v. Becker, 132 Wn.2d 54, 64-65, 935 P.2d 13231 (1997), the

conviction was reversed because the language in a special verdict form resolved

a factual dispute about whether a youth program was a school. The court

concluded "[b]y effectively removing a disputed issue of fact from the jury's

consideration, the special verdict form relieved the State of its burden to prove all

the elements of the sentence enhancement statute."

       Here, the jury instruction informed the jury, as a matter of law, that more

than a few weeks was a prolonged period of time. Since there was evidence

presented during the trial that the alleged domestic violence lasted for more than

a few weeks, the instruction resolved any factual dispute whether the domestic

violence was over a prolonged period of time. Thus, the instruction relieved the

State of proving this element of the aggravating factor.

       The State, relying on State v. Barnett, 104 Wn. App. 191, 203, 16 P.3d 74

(2001), argues that Instruction 26 merely defined the term "prolonged period of
time" and that the definition of a term is a question of law on which the jury may

be properly instructed. But because Barnettwas decided before Blakelv v.


                                         14
No. 71067-2-1/15


Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 LEd.2d.403 (2004), the issue of

whether the abuse was over a prolonged period of time was a matter for the

court to decide, and not the jury. Since Blakelv, "responsibility for these

determinations [has moved] to the jury as a matter of constitutional right." State v.

Epefanio, 156 Wn. App. 378, 392, 234 P.3d 253 (2010). As such, whether a

period of time is prolonged is an issue of fact for the jury to determine. And

because Instruction 26 resolved that question for them it was a comment on the

evidence and thus, error. In addition, we presume that Brush is prejudiced by this

error. The State makes no argument that he was not and we are unable to

affirmatively state based on the record that none occurred. Accordingly, this

ground for the exceptional sentence cannot be sustained.12
       Brush also challenges the jury's special verdict finding the domestic

violence aggravating factor based on subsection (3)(h)(iii), which provides for

such a finding if:

                  (h) The current offense involved domestic violence, as
       defined in RCW 10.99.020, and

                  (iii) The offender's conduct during the commission of
       the current offense manifested deliberate cruelty or
       intimidation of the victim.

This factor must be supported by evidence that the offender's conduct during the

commission of the current offense manifested "deliberate cruelty" or "intimidation

of the victim."




        12 Given our resolution of this issue we do not address Brush's argument that the
testimony of Bonney's daughter in support ofthis aggravating factor was hearsay, improperly
admitted under ER 803(a)(2), as an "excited utterance".

                                               15
No. 71067-2-1/16


      As previously discussed, the record in this case is insufficient to establish

"deliberate cruelty." And, although the jury was properly instructed on the

"intimidation of the victim" prong, the special verdict form omitted this language

and substituted the "excessive bodily harm" language set forth under subsection

(3)(y), discussed infra. CP at 199, 206. Under the plain language of the statute,

the jury's special verdict finding an "aggravated domestic violence" offense

cannot be sustained on this ground.

       Subsection (3)(y) permits a jury to find an aggravating factor if:

       (y) The victim's injuries substantially exceed the level of bodily harm
       necessary to satisfy the elements of the offense...

Brush cites State v. Stubbs, 170 Wn.2d 117, 240 P. 3d 143 (2010), for the

proposition that no injury can "substantially exceed" the level of bodily harm

necessary to cause death. In Stubbs, our Supreme Court considered whether

subsection (3)(y) was sustained by the evidence in a first degree assault case.

id. The issue was whether any level of injury could "substantially exceed" "great

bodily harm," as defined by the criminal code RCW 9A.36.011(1)(a)(c);

9A.04.110(4)(c)). The court explained that "'[g]reat bodily harm,' ... encompasses

the most serious injuries short of death. No injury can exceed this level of harm,

let alone substantially exceed it" for purposes of subsection (3)(y). \± at 128.

       It stands to reason that, if no injury can substantially exceed "great bodily

harm," which leaves the victim just short of death, then no injury can substantially

exceed death. We conclude, therefore, that Stubbs precludes a finding of the

subsection (3)(y) aggravating factor where, as here, the victim's death is an



                                          16
No. 71067-2-1/17


element of the underlying crime. The jury's finding of the subsection (3)(y)

aggravating factor was error.

         The judgment of guilty is affirmed but because none of the jury's findings

regarding the aggravating factors can be sustained on the record before us, the

exceptional sentence in this case must be reversed. We remand for resentencing

with instructions that the trial court may, if requested, impanel a jury to consider

evidence of a prolonged pattern of abuse under RCW 9.94A.535(3)(h)(i). See

RCW 9.94A.537(2); State v. Powell, 167 Wn.2d 672, 679-80, 223 P.3d 493

(2009), overruled on other grounds.13

         We remand.




                                                                ^<!^.rrf ,, (..>J<
WE CONCUR:




         13 We note that the jury may not consider aggravating circumstances under subsection
(3)(a) because, as a matter of law, the record cannot sustain a finding of "deliberate cruelty;"
subsection (3)(h)(iii) for the same reason and because the trial court did not rely on the
"intimidation of the victim" language; or subsection (3)(y), which is not applicable in homicide
cases.



                                                17
