           IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

 STATE OF WASHINGTON,
                                              No. 78760-8-I
                           Respondent,
                                              DIVISION ONE
               V.
                                              UNPUBLISHED OPINION
 BRANDON CALVIN KNOTH,

                       Appellant.
________________________________              FILED: January 27, 2020
       MANN, A.C.J.   —   Brandon Knoth appeals the judgment and sentence imposed

upon his conviction for assault in the second degree. He contends the evidence was

insufficient to support the aggravating factor that the victim’s injuries substantially

exceeded the level of bodily harm necessary to satisfy the elements of the offense and

that the criminal filing fee should be stricken. We remand for the trial court to strike the

criminal filing fee from the judgment and sentence. We otherwise affirm.



       On the evening of June 5, 2016, John Schmidt went to O’Houlies bar in

Mountlake Terrace to play pool. Schmidt was a regular at the bar and he knew the

bartenders. Throughout the evening, Schmidt consumed three or four rum and Coke

cocktails. In the early morning hours of June 6, Schmidt decided to go home. While

putting his pool stick in the trunk of his car, Schmidt “heard a commotion.” A group of
No. 78760-8-112

four people were standing to the right of the entrance to O’Houlies. Schmidt saw a man

in the group grabbing the hair of a woman in the group, and he thought she was in

trouble. Schmidt asked the woman if she needed help. He remembered being “rushed”

and knocked down by a man in the group, who was later identified as Knoth. Schmidt

got up and tried to go back to his car. The next thing he remembered was waking up at

Harborview Medical Center.

        Knoth’s wife Alicia testified that she, Knoth, and the other couple were hanging

out in the parking lot “just kind of dancing and being loud and obnoxious, probably”

when Schmidt walked up and said “derogatory things like we were hookers or

prostitutes or something.” She said Schmidt told Knoth “{y]ou’re a dead man” right

before Knoth chased him around the car. She said she did not see what happened

after that.

        The bartender, Kyle Halbert, recalled serving drinks to a group of two men and

two women who came into O’Houlies at around 1:15 or 1:30 a.m. Because it was so

late, Halbert assumed they had been drinking before they arrived. One of the women

fell down, and Halbert took away her drink. The group left the bar at around 2:00 am.

One of them left a cell phone in the bar, so Halbert took it out to them. The two women

were sitting on the curb, and the two men were “horseplaying around.” Another

employee left the bar, then immediately returned to tell Halbert that Schmidt was laying

on the ground outside. Halbert went outside and found Schmidt unconscious with blood

on the ground near his head. Halbert immediately called 911.

       Video surveillance showed Schmidt pointing and walking across the parking lot

towards the group. Schmidt and Knoth appeared to exchange words. Then Knoth


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adopted a fighting stance and bounced in a circle around Schmidt. A woman appeared

to pull Knoth away, and Knoth and Schmidt walked away from each other. Knoth then

approached Schmidt and punched him in the chest, knocking him to the ground.

Schmidt slowly stood up, walked across the parking lot, then turned around and walked

back to his car. Knoth suddenly came running around the rear of Schmidt’s car towards

him. Schmidt turned to run away, and Knoth appeared to catch up with him just off

camera. Knoth then ran back to his car and the group quickly drove away.

       Schmidt was taken to Swedish Hospital in Edmonds, then transferred to

Harborview Medical Center. There, Dr. Randall Chesnut, a neurosurgeon, performed

emergency surgery to relieve swelling on Schmidt’s brain. Schmidt remained at

Harborview for a month. When he got out of the hospital, he could not speak or swallow

and had a tube in his stomach for three months.

       The State charged Knoth by information with one count of assault in the first

degree. Shortly before trial, the State filed an amended information charging Knoth with

one count of assault in the second degree with an aggravating factor that Schmidt’s

injuries “substantially exceeded the level of bodily harm necessary to satisfy the

elements of the offense.”

       At trial, Dr. Chesnut described in detail the “catastrophic” nature of Schmidt’s

brain injury and testified that without surgical intervention, the “likely outcome” was

“quite possibly death.” Schmidt testified to the losses he suffered following the assault,

including ongoing problems with equilibrium, balance, speech, and memory.

       The jury found Knoth guilty of assault in the second degree. The jury returned a

special verdict that “the victim’s injuries substantially exceed[ed] the level of bodily harm


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No. 78760-8-1/4

necessary to constitute substantial bodily harm.” The court imposed an exceptional

sentence of 48 months of confinement.1 Knoth appeals.



          Knoth contends that there is insufficient evidence to support the aggravating

factor. We disagree.

          Facts supporting an aggravating circumstance must be proved to a jury beyond a

reasonable doubt. RCW 9.94A.537(3); State v. Guzman Nunez, 174 Wn.2d 707, 711,

285 P.3d 21(2012). “A jury’s finding by special interrogatory is reviewed under the

sufficiency of the evidence standard.” State v. Stubbs, 170 Wn.2d 117, 123, 240 P.3d

143 (2010). “A claim of insufficiency admits the truth of the State’s evidence and all

inferences that can reasonably be drawn from it.” State v. DeVries, 149 Wn.2d 842,

849, 72 P.3d 748 (2003). We defer to the trier of fact in matters of conflicting testimony,

witness credibility, and its view of the persuasiveness of the evidence. State v. Trout,

125 Wn. App. 403, 409, 105 P.3d 69 (2005).

       ROW 9.94A.535(3) lists aggravating factors that can support a departure from

the sentencing guidelines if the “facts supporting aggravating circumstances” can be

“proved to a jury beyond a reasonable doubt.” One such factor is if “{t[he victim’s

injuries substantially exceed the level of bodily harm necessary to satisfy the elements

of the offense.” To impose an exceptional sentence on this basis, the court must be

satisfied that the facts found by the jury are “substantial and compelling reasons

justifying an exceptional sentence.” RCW 9.94A.537(6); State v. Sage, 1 Wn. App. 2d

685, 709, 407 P.3d 359 (2017).



      1   Knoth’s standard range sentence was 3 to 9 months.
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No. 78760-8-1/5

       In making this determination, the trier of fact must compare the actual injuries

against the minimum injury that would satisfy the definition of the charged crime. State

v. Parpas, 176 Wn.2d 188, 192, 289 P.3d 364 (2012). “Such a leap is best understood

as the jump from ‘bodily harm’ to ‘substantial bodily harm,’ or from ‘substantial bodily

harm’ to ‘great bodily harm.” Stubbs, 170 Wn.2d at 130. “Thus, the statute requires

only that the injuries ‘substantially exceed,’ rather than a requirement to meet a higher

category of harm.” State v. Duncalf, 177 Wn.2d 289, 296, 300 P.3d 352 (2013) (quoting

Papias, 176 Wn.2d at 193).

       As charged here, a person is guilty of assault in the second degree if they

“intentionally assault[ed] another and thereby recklessly inflicted substantial bodily

harm.” RCW 9A.36.021(1)(a). RCW 9A.04.1 10(4)(b) defines “substantial bodily harm”

as “bodily injury which involves a temporary but substantial disfigurement, or which

causes a temporary but substantial loss or impairment of the function of any bodily part

or organ, or which causes a fracture of any bodily part.”

       The court instructed the jury that proof of “great bodily harm” would satisfy the

statutory aggravator. Under RCW 9A.04.110(4)(c), “great bodily harm” means “bodily

injury which creates a probability of death, or which causes significant serious

permanent disfigurement, or which causes a significant permanent loss or impairment of

the function of any bodily part or organ.”

       Although the State was not required to prove that Schmidt’s injuries reached this

higher category of harm, we conclude that the State presented sufficient evidence to

satisfy this requirement, thereby necessarily exceeding the standard for substantial

bodily harm. Dr. Chesnut testified that Schmidt presented with “a bad lesion” and


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“bruises in the cerebellum” necessitating emergency surgery to relieve swelling by

opening the skull. Dr. Chesnut recalled observing “a lot of swelling” on Schmidt’s brain

during surgery. He explained that any swelling in that area can be “catastrophic”

because it “compresses the brain stem which is what runs breathing and helps control

the cardiac rhythms.” Dr. Chesnut specified that without surgical intervention, the likely

outcome of that swelling would be “quite possibly death.” Dr. Chesnut said that Schmidt

also suffered an orbitozygomatic fracture to the cheek bone near his right eye.

       Schmidt testified that since the assault, his “[Ijeft side is slower” and he has

problems with “speech and memory.” He can no longer button his shirt and has

ongoing problems with balance and equilibrium. He lost his job because he “couldn’t

think enough” and is now on Social Security Disability. And he had to quit hiking and

volunteering for Search and Rescue. And Halbert testified that since the accident,

Schmidt “just doesn’t have the same full functionality that he had before,” such as

“limited physical mobility” and “slower speech.”

       Knoth argues that the State did not prove “great bodily harm” because there was

no evidence Schmidt suffered “significant serious permanent disfigurement” such as

facial lacerations or a knife entrance wound. But this is only one of three alternative

means by which the State may establish “great bodily harm.” Given that the State

provided substantial evidence that Schmidt suffered a “probability of death” or

“significant permanent loss or impairment of the function of any bodily part or organ,”

the lack of disfigurement is of no consequence.

       Knoth also argues that the State failed to prove “great bodily harm” because it did

not prove Schmidt suffered “permanent” loss or impairment of bodily functions. But


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No. 78760-8-1/7

Schmidt’s and Halbert’s testimony at trial, which occurred more than two years after the

assault, indicates that Schmidt continues to suffer significant problems with balance,

equilibrium, speech, and memory and that these limitations prevent him from working or

engaging in certain activities he once enjoyed. And Dr. Chesnut testified that it would

not be surprising to find lifelong injuries as a result of Schmidt’s injuries.

       The evidence plainly exceeds the “temporary but substantial loss or impairment

of the function of any bodily part or organ” standard necessary to prove substantial

bodily harm. The evidence also meets the “probability of death” or “significant

permanent loss or impairment of the function of any bodily part or organ” necessary to

prove great bodily harm. The trial court was authorized to impose an exceptional

sentence.



       Knoth next seeks to strike the $200 criminal filing fee from the judgment and

sentence. The State concedes that, while this legal financial obligation was properly

imposed at the time of sentencing, it should be stricken pursuant to recently amended

RCW 36.18.020(2)(h)(criminal filing fee) and State v. Ramirez, 191 Wn.2d 732, 426,

P.3d 714 (2018). We accept the State’s concession and agree.

                                              IV.

       Knoth raises two additional issues in his pro se statement of additional grounds

(SAG) pursuant to RAP 10.10. Neither issue has merit.

       First, Knoth argues that the court failed to consider as a mitigating circumstance

that the victim was the initiator and provoker of the incident. On this basis, he contends

that the aggravating factor was not proven and that the jury was not properly instructed.


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No. 78760-8-1/8

As discussed above, the evidence was sufficient to support the conviction. Regarding

the alleged instructional error, “[jjury instructions are sufficient when they allow counsel

to argue their theory of the case, are not misleading, and when read as a whole properly

inform the trier of fact of the applicable law.” State v. Knutz, 161 Wn. App. 395, 403,

253 P.3d 437 (2011) (quoting State v. Aquire, 168 Wn.2d 350, 363-64, 229 P.3d 669

(2010)). The instructions allowed defense counsel to present evidence that Schmidt

instigated the incident by approaching the group and making offensive comments.

          Second, Knoth claims his right to a fairtrial was violated when the State

amended the charge two days before trial from assault in the first degree to assault in

the second degree with an aggravating factor, thereby forcing him to stand trial with an

attorney who was unprepared. Under CrR 8.3(b), the court may “in the furtherance of

justice   .   .   .   dismiss any criminal prosecution due to arbitrary action or governmental

misconduct when there has been prejudice to the rights of the accused which materially

affect the accused’s right to a fair trial.” Prejudice includes the denial of the right to

effective assistance of counsel who has had adequate opportunity to prepare a defense.

State v. Michielli, 132 Wn.2d 229, 240, 937 P.2d 587 (1 997). Here, the record shows

that defense counsel affirmatively declined to object to the amended information. There

is no showing of prejudice.

          We remand to the trial court to strike the $200 criminal filing fee. We otherwise

affirm Knoth’s conviction and sentence.




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No. 78760-8-1/9




                  ________   4 t~,
                    I    /




WE CONCUR:



                             A.
