                                                                                                      FILED
                                                                                              COURT  OF
                                                                                                        APPEALS
                                                                                                  DIVISION I1
                                                                                            nI5 APR      Ali 9: 50
                                                                                            STA


    IN THE COURT OF APPEALS OF THE STATE OF WASHING

                                              DIVISION II

 STATE OF WASHINGTON,                                                         No. 45296 -1 - I1


                                  Respondent,


        v.

                                                                      UNPUBLISHED OPINION
NAKIA L. OTTON,


                                  Appellant.




       MAXA, P. J. — Nakia Otton appeals his convictions and sentence for second degree


assault and felony harassment. The convictions were based on an incident in which Otton

choked and threatened to kill Debra Dugan, his girlfriend. The trial court admitted under ER


801( d)( 1)( i) Dugan' s written statement that she gave to police immediately after the incident,

after Dugan denied at trial that Otton had assaulted or threatened her. At sentencing, the trial

court imposed an exceptional sentence based on two aggravating factors: the victim' s particular

vulnerability and a presumptive sentence that was clearly too lenient.

       We hold that ( 1) the trial court did not err in admitting Dugan' s statement under ER

801( d)( 1)( i), (2) there was sufficient evidence to establish beyond a reasonable doubt that


Otton' s threat to kill Dugan   was a "   true threat," ( 3) there was sufficient evidence to support the



 particularly   vulnerable victim"   aggravating factor, ( 4)   the trial court erred in imposing an

exceptional sentence based on the " clearly too lenient" aggravating factor because the jury did

not make   any factual findings regarding that factor,     and (   5) the   exceptional sentence was valid
45296 -1 - II



because the trial court stated that it would have imposed Otton' s exceptional sentence based on


either aggravating factor.

         Accordingly, we affirm Otton' s convictions and exceptional sentence.

                                                 FACTS


         Otton and Dugan had a romantic relationship and lived in the same residence. In October

2011, Dugan began to experience blackouts, and she ultimately underwent six brain surgeries to

address bleeding in her brain. These surgeries left Dugan disabled. Dugan' s disability impacted

her ability to   speak and caused   memory   problems.   She also took multiple prescription


medications, including seizure and thyroid medications, sleeping pills, pain killers, and anti-

depressants.


         On the night of December 8, 2012, Otton came home intoxicated and fell asleep on the

bedroom floor. Dugan already was asleep on the bed. At some point during the night, Dugan

woke up and apparently kicked Otton in the face as she moved across the room. This act

angered Otton and the pair argued. Dugan reported that Otton used his arm to push her arm


against her neck, pushed her against the wall, banged her head on the wall, and strangled her for


about a minute. While assaulting Dugan, Otton threatened her.

         Otton left the house, and Dugan called the police. The police came to the residence


where they observed Dugan visibly agitated. Officer Shelton questioned Dugan, but she had

difficulty discussing the assault in a logical manner. The police were required to rephrase

questions or ask them again to narrow Dugan' s focus to their specific questions. Dugan did tell


officers that Otton had assaulted her and threatened to kill her, and that she was fearful that he


would carry out the threat.


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           Once the police were able to get an accurate account of the assault, Dugan prepared a

handwritten statement describing the incident. The statement provided:

            A] pprox time 2: 00 Nakia Otton                came    home drunk & passed out on the bedroom
           floor. He      woke       up   about an    hour later,      accused me of      kicking   him in the   lip.   He
           held   me on       the   bed,   holding    me   by   neck against       the   wall &   the bed — I couldn' t
           breath[ e].    He told      me     he   was gonna    kill   me.   His   mom showed       up & took him out.


Br.   of   Appellant     at   5;   see also   Report of Proceedings          at   224 -25. The statement form recited that


Dugan was signing under penalty of perjury, and Officer Shelton advised her that the statement

was made under oath. Dugan signed the statement.


            Officer Shelton forwarded Dugan' s written statement to the prosecutor' s office along

with a probable cause statement. The State charged Otton with second degree assault and felony

harassment.


           At trial, Dugan testified but was unable to remember much of her written statement to the


police. She expressly denied stating that Otton had choked her or threatened to kill her. When

questioned further, Dugan stated that she had ongoing blackouts, and she simply did not know or

remember whether it had actually happened. Over Otton' s objection the trial court admitted

Dugan' s written statement, which was inconsistent with her trial testimony, under ER

801( d)( 1)( i).


            The jury found Otton guilty on both charges. The jury also returned a special verdict that

Otton knew or should have known that Dugan was particularly vulnerable and that Dugan' s

particular vulnerability was a substantial factor in the commission of the crimes. The trial court

did not ask the jury to determine whether Otton' s unscored misdemeanor history resulted in a

presumptive sentence that was clearly too lenient.



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         At sentencing, Otton faced standard range sentences of 12 to 14 months for the assault

and 4 to 12 months for the harassment. The trial court found that there were substantial and


compelling reasons to impose an exceptional sentence based either on the victim vulnerability or

the clearly too lenient aggravating factors. The court expressly stated that it would impose the

same sentence even if only one of the aggravating factors was valid. The trial court sentenced

Otton to 30 months in confinement.


         Otton appeals his convictions and exceptional sentence.


                                                 ANALYSIS


A.       ADMISSIBILITY OF INCONSISTENT VICTIM STATEMENT


         Otton challenges the trial court' s admission into evidence of Dugan' s prior written


statement under   ER 801( d)( 1)( i).   He argues that the " reliability" test articulated in State v.

Smith, 97 Wn.2d 856, 863, 651 P. 2d 207 ( 1982), is invalid after the United States Supreme


Court' s opinion in Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177


 2004). We reject this argument.


         Under ER 801( d)( 1)( i), a court may admit statements of a witness when:


          t]he declarant testifies at the trial or hearing and is subject to cross examination
         concerning the statement, and the statement is ( i) inconsistent with the declarant' s
         testimony, and was given under oath subject to the penalty of perjury at a trial,
         hearing, or other proceeding, or in a deposition.

If this rule applies, the statement is not hearsay and is admitted as substantive evidence of the

matter asserted therein. Smith, 97 Wn.2d at 862 -63.




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         In Smith, our Supreme Court examined the admissibility of a sworn affidavit as

substantive evidence under        the "   other   proceeding"        requirement of      ER 801( d)( 1)( i). Id. at 859-


63. In that case, an assault victim had named the defendant as her attacker in a sworn affidavit


given to the police, but she later testified that another man had committed the assault. Id. at 858.

The court reasoned that an interpretation of the rule that would " always exclude or always admit


such affidavits" was      inappropriate. Id.       at   861.    Instead, the court focused on an analysis that


admitted prior     inconsistent   statements where "           reliability [ is]   the key." Id. at 863. Using this

approach, the court concluded that a sworn statement to police may qualify as an " other


proceeding"      under   ER 801( d)( 1)( i). Id.


         Subsequent case law set forth four criteria to be examined in determining whether a prior

inconsistent     statement was made       in   an " other      proceeding."        These are:


          1)    whether the witness       voluntarily made the statement, ( 2) whether there were
         minimal guaranties of truthfulness,        ( 3) whether the statement was taken as standard

         procedure in one of the four legally permissible methods for determining the
         existence of probable cause, and ( 4) whether the witness was subject to cross
         examination when giving the subsequent inconsistent statement.

State v. Thach, 126 Wn. App. 297, 308, 106 P. 3d 782 ( 2005).

         Otton contends this analysis is not an appropriate test for Washington courts to discern a


prior inconsistent statement' s reliability under ER 801( d)( 1,)( i) after the United States Supreme

Court' s decision in Crawford. In Crawford, the Court examined the admissibility of out -of c- ourt

testimonial statements under the Sixth Amendment' s                     confrontation clause.       541 U. S. at 69. The




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45296 -1 - II



Court determined that when out -of -court testimonial statements were at issue, the only way to

ensure the reliability of the statement is an in -court confrontation of the witness. Id.

Accordingly, the Court held that out -of -court testimonial statements were inadmissible unless the

defendant had a prior opportunity to cross -examine the out -of c- ourt speaker. Id. at 68 -69.

          We addressed Otton' s exact argument in Thach, 126 Wn. App. 297. In that case,

the defendant argued that Crawford impacted the admissibility of a prior inconsistent

statement under      ER 801( d)( 1)( i).   Id. at 309. We held that Crawford had no bearing on

the admissibility of the statement under ER 801( d)( 1)( i) because " the confrontation

clause is not implicated when the declarant is available for cross -examination at trial."

Id. The Court in Crawford also           recognized    this distinction: "[     W] hen the declarant


appears for cross -examination at trial, the Confrontation Clause places no constraints at

all on   the use of his prior testimonial      statements....       The Clause does not bar admission


of a statement so     long   as   the declarant is   present at   trial to defend     or explain   it." 541 U. S.


at59n.9. 1

          We follow Thach and conclude that Otton' s challenge to the validity of Smith has no

merit.    Therefore, we hold that Dugan' s statement was properly admitted as substantive evidence

under ER 801( d)( 1)( i).




1 Otton also contends that a Florida Court of Appeals case, Delgado- Santos v. State, 471 So. 2d
                App. 1985), should persuade us to overturn Smith. In Delgado -Santos, the
74, 79 ( Fla. Ct.
Florida Court of Appeals held that police questioning was not an " other proceeding" for the
purpose of      ER 801( d)( 1)( i). Id. There the court reasoned that " the basic flaw" with Smith' s

admissibility     of a reliable sworn statement        was " that   it finds   no   basis in the   statute."   Id. Here
we base our decision on Washington jurisprudence, which has continually upheld or approvingly
cited to Smith after Delgado- Santos. See, e. g., State v. Lavaris, 106 Wn.2d 340, 343, 721 P. 2d
515 ( 1986);     Thach, 126 Wn. App. at 308.
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45296 -1 - II




B.       TRUE THREAT REQUIREMENT


         Otton argues that that his felony harassment conviction must be reversed because the

State failed to     produce sufficient evidence              that his threat to kill Dugan    was a "   true threat,"   which




is a required finding for a felony harassment conviction. We disagree.

         1.      Legal Principles


         Under RCW 9A.46. 020( 1)(             a)(   i),   a person is guilty of harassment if, without lawful

authority, that     person "   knowingly      threatens ... [      t]o cause bodily injury immediately or in the

future to the     person   threatened    or   to any       other person."   However, the First Amendment to the


United States Constitution prohibits laws that abridge the freedom of speech. Because RCW


9A.46. 020( 1)( a) criminalizes pure speech, that statute must be applied in conformance with the


First Amendment' s command. State v. Kilburn, 151 Wn.2d 36, 41, 84 P. 3d 1215 ( 2004).


         Significantly, the scope of the First Amendment does not extend to " unprotected speech,"

one   category     of which    is " true threats." State v. Allen, 176 Wn.2d 611, 626, 294 P. 3d 679


 2013). A       true threat is " `   a statement made in a context or under such circumstances wherein a


reasonable person would          foresee that the           statement   would be interpreted ...      as a serious



expression of      intention to inflict   bodily harm           upon or   to take the life   of another person.' "      Id.


 internal     quotation marks omitted) ( quoting              Kilburn, 151 Wn. 2d     at   43).   We " interpret statutes


criminalizing      threatening language        as    proscribing only       unprotected    true threats." Allen, 176


Wn.2d at 626.




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45296 -1 - II



          A statement can constitute a true threat even if the speaker has no actual intent to cause

bodily injury. Kilburn, 151 Wn.2d at 46. One of the reasons that a true threat is unprotected

speech is because it arouses fear in the person threatened and that fear does not depend on the

speaker' s intent. Id. Therefore, a statement will be considered a true threat if a " reasonable

speaker would     foresee that the threat   would   be   considered serious."   State v. Schaler, 169 Wn.2d


274, 283, 236 P. 3d 858 ( 2010).


          2.    Standard of Review


          Otton challenges the sufficiency of the evidence that he made a true threat. In the

ordinary case, the test for determining sufficiency of the evidence is whether, after viewing the

evidence in the light most favorable to the State, any rational trier of fact could have found the

fact at issue beyond a reasonable doubt. State v. Homan, 181 Wn.2d 102, 105, 330 P. 3d 182


 2014).    In evaluating a sufficiency of the evidence claim, we assume the truth of the State' s

evidence and all reasonable     inferences drawn from that       evidence.   Id.   at   106. We defer to the


trier of fact' s resolution of conflicting testimony and evaluation of the persuasiveness of the

evidence. Id.


          However, because the true threat requirement implicates the First Amendment, applying

the usual analysis for assessing sufficiency of the evidence is not enough. Kilburn, 151 Wn.2d at

49. " The First Amendment demands           more."   Id. Instead, we must engage in an independent


review of the " crucial" facts that involve the legal determination of whether the speech is

unprotected. Id. at 52..




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45296 -1 - II




         3.     True Threat Analysis


         The evidence shows that Otton expressly threatened to kill Dugan. The question here is

whether there is sufficient evidence that this threat was made in a context or under such


circumstances that a reasonable person would foresee that it would be interpreted as a serious


expression of intention to harm Dugan. Allen, 176 Wn.2d at 626.


         Under this standard, the context of the threat is significant. Id. Here, the context of


Otton' s threat to kill Dugan supports the finding of a true threat. Otton threatened to kill Dugan

after he used his arm to push her arm against her neck, pushed her against the wall and banged


her head on the wall, and strangled her. A reasonable person certainly would foresee that a

threat to kill during such an assault could be interpreted as a true threat to kill.

         Based on our independent review of the crucial facts, we hold that there was sufficient

evidence to establish beyond a reasonable doubt that Otton' s threat to kill Dugan was a " true


threat" because it was reasonably foreseeable that a reasonable person would take the threat

seriously.


C.       EXCEPTIONAL SENTENCE


         Otton argues that the trial court erred by imposing an exceptional sentence because ( 1)

insufficient evidence supported the jury' s findings on the " particularly vulnerable victim"

aggravating factor, and ( 2) the jury did not make any findings regarding the " clearly too lenient"

aggravating factor. We hold that there was sufficient evidence to support the jury' s verdict on

the particularly vulnerable victim aggravating factor but that the clearly too lenient aggravating

factor was invalid. However, we affirm the exceptional sentence because the trial court




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45296 -1 - II




expressly stated that it would impose the same exceptional sentence even if only one of the

aggravating factors was valid.

             1.   Particularly Vulnerable Victim Aggravating Factor

             Former RCW 9. 94A.535( 3)( b) (    2011) 2 allows a sentencing court to impose an

exceptional sentence based on a jury finding that the " defendant knew or should have known that

the   victim of   the   current offense was   particularly .vulnerable   or   incapable   of resistance."   To


prove a victim' s vulnerability as an aggravating factor justifying an exceptional sentence, the

State must show that ( 1) the defendant knew or should have known (2) of the victim' s particular


vulnerability and ( 3) that vulnerability was a substantial factor in the commission of the crime.

State   v.   Suleiman, 158 Wn. 2d 280, 291 - 92, 143 P. 3d 795 ( 2006) ( emphasis           omitted).   To be a


substantial factor, a disability must have rendered the victim more vulnerable to the particular

crime than a nondisabled person. State v. Mitchell, 149 Wn. App. 716, 724, 205 P. 3d 920

 2009).


             The jury returned a special verdict that Otton knew or should have known that Dugan

was particularly vulnerable or incapable of resistance and that Dugan' s particular vulnerability or

incapability to resist was a substantial factor in the commission of the crimes. These are factual

determinations that we review under a sufficiency of the evidence standard. See Suleiman, 158

Wn.2d at 292. The test for determining whether evidence is sufficient to support a jury' s finding

of aggravating circumstances is whether, after viewing the evidence in the light most favorable




2 RCW 9. 94A.535 was amended three times in 2013, but these amendments do not affect the
subsection cited.


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45296 -1 - II



to the State, any rational trier of fact could have made that finding beyond a reasonable doubt.

State v. Gordon, 172 Wn.2d 671, 680, 260 P. 3d 884 ( 2011).

         Here, it is undisputed that Dugan was disabled because of her brain surgeries and that her


disability affected her speaking ability and her memory. In addition, Dugan was taking several

medications.




         Otton argues that Dugan' s disability could not be a substantial factor in the commission

of the crimes because there was no nexus between the cause of the crimes and the disability. He

argues that the incident arose because of an argument between romantic partners and not because

Dugan was disabled. But Otton' s argument misinterprets the substantial factor requirement. He

argues that a victim' s particular vulnerability must have triggered or been the cause of the crime.

But as evidenced by the plain language of the third factor in Suleiman, a victim' s vulnerability

must   merely be   a substantial   factor —not the     cause — of   the   commission of   the   crime.   158 Wn. 2d


at 291 -92.


         Gordon, 172 Wn.2d 671, illustrates the distinction between the cause of a crime and a


substantial 'factor in the commission of a crime. In that case, the defendant began punching the

victim when the victim intervened in a fight between the defendant and a woman. Id. at 674.

When the victim fell to the ground, the defendant and his four friends continued to punch and


kick him. Id. The court held that a jury could reasonably conclude that the victim' s

vulnerability —being    a   solitary   victim   who   was assaulted   by   multiple assailants —was a




substantial factor in the commission of the crime. Id. at 680. Significantly, there was no

indication that the fact that the victim was outnumbered was the initial cause of the crime. The


cause was the victim confronting the defendant.

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         Otton   relies on   State   v.   Barnett, 104 Wn.   App.   191, 16 P. 3d 74 ( 2001).   In that case, the


defendant viciously attacked his 17- year -old girlfriend. Id at 195. The trial court imposed an

exceptional sentence based in part on a finding that the victim' s age and the fact that she was

home alone made her particularly vulnerable. Id. at 202. Division Three of this court held that

the evidence did not support the finding of particular vulnerability. Id. at 204 -05.

         Otton focuses on the court' s statements that the fact that the victim was home alone was


not the reason the defendant chose her as a victim, and he emphasized the court' s statement that


the defendant chose his victim " because of their failed relationship, not because she presented an

easy target for   a random crime."          Id. at 205. However, before making those statements, the court

specifically stated that the victim was not particularly vulnerable. Id. at 204. In other words, the

court in Barnett based its decision on the fact that the victim was not particularly vulnerable, not

that the vulnerability did not cause the offense. As a result, Barnett does not support Otton' s

argument.




         Here, the evidence showed that Dugan' s disability impacted her ability to speak, as well

as her memory and perception, and required her to take multiple kinds of prescription

medications. Dugan had difficulty telling the police her account of the assault directly after it

took place as well as giving a chronological and focused account of the attack. Moreover, Dugan

testified that her blackouts impacted her ability to remember whether the attack had taken place.

Based on this evidence, the jury could have reasonably concluded beyond a reasonable doubt

that Dugan was more vulnerable to the commission of an attack than a nondisabled person


because Dugan' s disability prevented her from fully remembering and reporting the assault.




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           Further, the jury could have inferred that Otton' s knowledge of Dugan' s disability was a

substantial factor in his assault on her. The jury could have inferred that Otton assaulted Dugan

in part because he knew she would have difficulty describing the attack and would make a poor

witness in any subsequent prosecution.

           We hold that there was sufficient evidence for the jury to reasonably conclude beyond a

reasonable doubt that Dugan' s disability was a substantial factor in the commission of Otton' s

assault.



           2.        Clearly Too Lenient Aggravating Factor

           Former RCW 9. 94A.535( 2)( b) allows a sentencing court to impose an exceptional

sentence without a finding of fact by a jury based on an aggravating factor that a defendant' s

prior unscored misdemeanor history results in a presumptive sentence that is clearly too lenient.

Notwithstanding            the statutory language, Otton     argues — and   the State   concedes —that   the trial


court' s application of this aggravating factor must be based on the jury' s findings.

           Any fact that increases the penalty for a crime beyond the prescribed statutory maximum,

other than the fact of a prior conviction, must be submitted to a jury and proved beyond a

reasonable       doubt. State        v.   Alvarado, 164 Wn.2d 556, 563, 192 P. 3d 345 ( 2008);    see also




Apprendi        v.   New   Jersey,   530 U. S. 466, 490, 120 S. Ct. 2348, 147 L. Ed. 2d 435 ( 2000). This


holding is based on the Sixth Amendment right to trial by jury. U. S. CONST. amend. VI.

Whether an exceptional sentence violates the Sixth Amendment is a question of law that we


review de novo. State v. Saltz, 137 Wn. App. 576, 580, 154 P. 3d 282 ( 2007).




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         Here, unlike for the particularly vulnerable victim aggravating factor, the jury made no

findings regarding the clearly too lenient aggravating factor. As a result, we accept the State' s

concession and hold that the trial court could not impose an exceptional sentence based on this


aggravating factor..

         3.      Exceptional Sentence Based on One Valid and One Invalid Factor


         Because there is sufficient evidence to support the particularly vulnerable victim

aggravating factor, we must determine whether we can uphold the trial court' s exceptional

sentence      based only   on   that factor. "    Where the reviewing court overturns one or more

aggravating factors but is satisfied that the trial court would have imposed the same sentence

based upon a factor or factors that are upheld, it may uphold the exceptional sentence rather than

remanding for resentencing."           State     v.   Jackson, 150 Wn.2d 251, 276, 76 P. 3d 217 ( 2003).   This


rule is particularly appropriate when the trial court expressly states that the same exceptional

sentence would be imposed based on any one of the aggravating factors standing alone. See

State v. Nysta, 168 Wn. App. 30, 54, 275 P. 3d 1162 ( 2012).

         Here, the trial court expressly stated that it would have imposed Otton' s exceptional

sentence based on either aggravating factor. Therefore, we uphold the trial court' s exceptional

sentence.




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45296 -1 - II



         We affirm Otton' s convictions and exceptional sentence.


         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.




We concur:




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