  IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                      DIVISION ONE

STATE OF WASHINGTON,                      )        No. 77319-4-1
                                          )
                     Respondent,          )
                                          )
         v.                               )
                                          )        UNPUBLISHED OPINION
CHRISTINA SHARA KAESTNER,                 )
                                          )        FILED: June 3, 2019
                     Appellant.           )
                                          )

       VERELLEN, J. — Christina Kaestner appeals her convictions of felony hit and
run, theft of a motor vehicle, and two counts of vehicular assault. She also

appeals her exceptional sentence. The majority of Kaestner's appeal focuses on

the vehicular assault of Claire Schwartz. Shortly before trial, Kaestner's defense

counsel discovered her brother-in-law's half-brother's son was dating Schwartz.

Defense counsel and Schwartz's boyfriend are not related, and they did not

otherwise have a close relationship. Because there was no actual conflict that

adversely affected defense counsel's performance, Kaestner's Sixth Amendment

right to conflict-free counsel was not violated.

       Also before trial, Kaestner orally moved to represent herself. After making

the initial motion, Kaestner refused to answer further questions and never raised

the motion again. Because Kaestner's motion was not unequivocal, the court did
No. 77319-4-1/2


not abuse its discretion when it failed to grant her request to proceed pro se. Even

assuming the request was unequivocal and timely, Kaestner failed to demonstrate

her waiver of the right counsel was knowing and intelligent.

       Following trial, the jury found Kaestner guilty of all counts. The jury found

the vehicular assault of Schwartz was aggravated because Schwartz's injuries

substantially exceeded the level of harm necessary to prove the offense.

Schwartz suffered multiple fractures and a traumatic brain injury. The jury also

found all the offenses were aggravated because Kaestner committed the crimes

shortly after being released from incarceration. Kaestner committed the charged

offenses three days after being released from jail.

       Kaestner challenges both aggravators as unconstitutionally vague. But a

person of reasonable understanding would not have to guess about the meaning

of the aggravators, as applied in this setting. Kaestner also argues the State failed

to present sufficient evidence to support both aggravators. But viewed in a light

most favorable to the State, there is sufficient evidence to support both

aggravators.

      The question whether the facts found by the jury concerning the two

aggravators were substantial and compelling reasons justifying an exceptional

sentence is a question of law which the jury was not required to address. And the

sentence of 100 months for the vehicular assault of Schwartz on the standard

sentence range of 43 to 57 months was not clearly excessive.




                                          2
No. 77319-4-1/3


       Finally, we accept the State's concession that the $100 DNA1 fee is not

warranted because Kaestner's DNA was collected on a prior conviction.

       We affirm Kaestner's conviction and sentence but remand for the trial court

to strike the $100 DNA fee.

                                       FACTS

       Kaestner was released from incarceration on April 21, 2016. On April 23,

2016, Kaestner met Bryan Brown in Everett. Brown agreed to give Kaestner a ride

to North Bend. On April 24, 2016, Brown drove Kaestner to North Bend but

eventually brought her back to his jobsite in Seattle. After finishing work and

before driving Kaestner back to North Bend, Brown met a friend in a parking lot.

Kaestner remained in Brown's truck. After Brown walked away, Kaestner got into

the driver's seat and sped away.

       After driving erratically for a few minutes, Kaestner t-boned a Toyota

Corolla and collided with a Honda Accord. Eventually, Kaestner lodged the truck

between a building and a utility pole. Police arrived and arrested Kaestner. The

driver of the Corolla, Claire Schwartz, had several fractured facial bones, a

fractured clavicle, a fractured pelvic bone, and a traumatic brain injury, among

other things.

       The State charged Kaestner with theft of a motor vehicle, reckless driving,

felony hit and run, and two counts of vehicular assault. The State alleged one of

the counts of vehicular assault was aggravated because Schwartz's severe


       1 Deoxyribonucleic acid.



                                         3
No. 77319-4-1/4



injuries substantially exceeded the level of bodily harm necessary to prove

vehicular assault. The State also alleged all of the charged counts were

aggravated because they were committed shortly after Kaestner was released

from incarceration.

       On January 30, 2017, Kaestner orally moved to represent herself before

Judge Dean Lum. After Kaestner gave confusing answers to Judge Lum's

questions about her ability to represent herself, Judge Lum told Kaestner they

would address her motion the next day after she had the night to think.

      The next hearing was on February 2, 2017, before Judge Sean O'Donne11.2

Kaestner refused to answer the court's questions concerning her request to

proceed pro se. In response, the court stated, "I'm going to take your silence as

that you're thinking about it and you're not sure."3 Kaestner did not respond, and

she never renewed the motion.

      On May 10, 2017, the parties appeared before Judge Susan Amini for

preliminary motions. Defense counsel disclosed that over the weekend, while at

her niece's birthday party, counsel had discovered that she knew the boyfriend of

Schwartz, one of the victims. Schwartz's boyfriend's parents are counsel's

brother-in-law's half-brother and his wife. Defense counsel represented that she




      2 See Report of Proceedings(RP)(Feb. 2, 2017) at 31 ("Ms. Kaestner was
here on Monday and asserted her right to represent herself. . . . We were going to
readdress that motion today. So it was rolled without—the hearing was rolled
already without a speedy trial waiver.").
      3 Id. at 37.




                                         4
No. 77319-4-1/5


saw Schwartz's boyfriend's parents at similar events once or twice a year, "but

they're not people who I see regularly." Defense counsel could not recall the last

time she saw Schwartz's boyfriend.

       When the court asked Kaestner how she felt about the situation, Kaestner

stated,

       I don't really have anything to say. 1 don't-1'm just frustrated,
       because I've been in jail for a year, and I haven't seen my children in
       like three years, so I'm just hoping to get it resolved as soon as
       possible.[5]

       The court concluded there was no actual conflict that precluded counsel's

continued representation of Kaestner.

       The trial was before Judge Mariane Spearman. On June 19, 2017, after the

initial trial, the jury found Kaestner guilty as charged. The jury also found the

vehicular assault of Schwartz was aggravated because Schwartz's injuries

substantially exceeded the level of bodily harm necessary to prove vehicular

assault. On June 20, 2017, after a separate proceeding on the rapid recidivism

aggravating factor, the jury found each felony was aggravated because they were

committed shortly after Kaestner was released from incarceration.

      At sentencing, the court ruled the jury's findings as to the aggravating

factors were substantial and compelling reasons to impose an exceptional




      4   RP (May 10, 2017) at 343.
      5   Id. at 348-49.



                                          5
No. 77319-4-1/6



sentence. The court imposed an exceptional sentence of 100 months on the

vehicular assault of Schwartz.

       Kaestner appeals.

                                        ANALYSIS

I. Right to Conflict-Free Counsel

       Kaestner argues she is entitled to a new trial because the court violated her

Sixth Amendment right to conflict-free counsel.

       In all criminal cases, the Sixth Amendment to the United States Constitution

gives defendants "the right. . ..to have the assistance of counsel for his defense."6

This includes the right to an attorney who is free from any conflict of interest.7 An

actual conflict of interest means "'a conflict that affected counsel's performance—

as opposed to a mere theoretical division of loyalties." "The defendant bears the

burden of proving that there was an actual conflict that adversely affected his or

her lawyer's performance."9

       Washington's Rule of Professional Conduct(RPC) 1.7(a)(2) provides, "[A]

lawyer shall not represent a client if the representation involves a concurrent

conflict of interest. A concurrent conflict of interest exists if. . . there is a

significant risk that the representation of one or more clients will be materially



       6 U.S. CONST. amend. VI.

       7 State   v. Dhaliwal, 150 Wn.2d 559, 566, 79 P.3d 432 (2003).
       8Id. at 570 (quoting Mickens v. Taylor, 535 U.S. 162, 171, 122 S. Ct. 1237,
152 L. Ed. 2d 291 (2002)).
       9 Id. at 573.




                                             6
No. 77319-4-1/7



limited . . . by a personal interest of the lawyer." In In re Personal Restraint of

Stenson, our Supreme Court stated that a personal interest "largely concerns

financial or familial interests, as shown by RPC 1.8" 10 RPC 1.8 references a

"close, familial relationship."1 I RPC 1.7 and 1.8 address actual conflicts and not

the appearance of a potential conflict:12 Therefore, to determine whether a lawyer

has a conflict of interest due to a "familial interest," we must determine the

closeness of the relationship.

       Shortly before trial, on May 10, 2017, defense counsel disclosed that over

the weekend she had discovered that she knew Schwartz's boyfriend. Schwartz's

boyfriend's parents are counsel's brother-in-law's half-brother and his wife.

Defense counsel represented that she saw Schwartz's boyfriend's parents once or

twice a year, "but they're not people who I see regularly."13 The mother of

Schwartz's boyfriend asked defense counsel about her work, and defense counsel

mentioned she was in trial for "a motor vehicle accident case."14 The woman

asked if the case involved Schwartz and the following exchange occurred,

      [M]y first reaction was, What? Like how would it—why would she
      even ask me that question? And then it occurred to me that I did
      remember, sort of the bell went off in my head, that her husband, the
      boyfriend's father, had told me last year at the earlier birthday party
      of my niece, that—that his son's girlfriend had been involved in an

      10   142 Wn.2d 710, 722, 16 P.3d 1 (2001).
      11   See RPC 1.8(c) and (I).
      12  Compare with Code of Judicial Conduct(CJC) Rule 1.2 ("A judge . . .
shall avoid . . . the appearance of impropriety.")(emphasis added).
      13   RP (May 10, 2017) at 343.
      14   id.




                                          7
No. 77319-4-1/8


       accident and that she had been injured. I think she may have still
       been in the hospital at that time. I can't recall. And you know, I
       expressed sympathy, and I think he mentioned, I'm sure he
       mentioned her name. I expressed . . . my sympathy about that, and
       that was, that was it.

               But when his wife this year said the name Claire, it kind of
       came back to me. It. . . was the first time that I had thought about it
       at all during the course of this, my representation of Ms. Kaestner. . .
       or else I would have raised it a long time ago to Ms. Kaestner,
       probably to the criminal presiding, to counsel, to make sure that
       everyone knew this. So when she asked if it was Claire's trial, I said,
       Yes, in fact, it is. And I said, So, you know, we shouldn't, you know,
       discuss this. And that was it. We didn't discuss it.[16]

       Defense counsel indicated she raised the issue out of "an abundance of

caution" but did not believe that the situation raised a concurrent conflict under

RPC 1.7)6 Defense counsel also stated, "I see absolutely no reason why this

would cause me any hesitation at all professionally to continue on with my

representation of Ms. Kaestner."17 When the court inquired into the relationship

between defense counsel and the victim's boyfriend's parents, defense counsel

represented, "I'm related to them in a very tenuous, by marriage, kind of a way:18

Defense counsel also stated she could not remember the last time she had seen

the victim's boyfriend.

       The following exchange occurred between the court, defense counsel, and

Kaestner:


       15   Id. at 344.
       16   Id. at 345.
       17   Id.
       18   Id. at 346.



                                          8
No. 77319-4-1/9



      THE COURT: Ms. Kaestner, is there anything of this issue you
      would like to say? What is—what is your position? Do you have any
      concerns? Do you—what do you want to see?

      DEFENSE COUNSEL: I think that the basic issue is whether or not I
      would remain as your counsel.

      THE COURT: Yes.

      DEFENSE COUNSEL: I think that's essentially what the Court's
      asking you. Are you able to tell the Court how you feel about that?

      KAESTNER: I don't really have anything to say. 1 don't—I'm just
      frustrated, because I've been in jail for a year, and I haven't seen my
      children in like three years, so I'm just hoping to get it resolved as
      soon as possible.

      THE COURT: Okay. Do you have any objections to Ms. Exe
      continuing as your lawyer?

      KAESTNER: I don't, I don't know what to say. I don't have anything
      to say.

      THE COURT: Well, either you feel comfortable or you don't. Which
      one is it?

      KAESTNER: Urn —

     DEFENSE COUNSEL: Your Honor, I think I can say without
     revealing client confidences that, that I did explain to Ms. Kaestner
     what would happen if I were to no longer be her attorney. And to be
     fair to her, I explained to her that she would get a new lawyer.

     THE COURT: Yes.

     DEFENSE COUNSEL: And that that new lawyer would probably take
     some time to get up to speed. So my sense is that perhaps her
     hesitation about answering this question is that she really wants this
     to be over with. And she knows that if I'm not her lawyer any longer,
     that there will be additional delay that will be out of anyone's hands.

     So perhaps the question is whether you're actually comfortable with
     me or you just want me to stay on because you don't want any more
     delays. Okay. Are you able to answer that question, maybe?




                                        9
No. 77319-4-1/10


         KAESTNER: Well, obviously I'm interested in something happening.
         1 mean, 1 don't want to sit in jail for the rest of my life here, you know.
         So you know, it's upsetting to hear something else come up, but I
         don't really know any -[19]

         The court concluded there was no actual conflict that precluded defense

counsel's continued representation of Kaestner.

         While the jury was deliberating on the rapid recidivism aggravating factor,

Kaestner mentioned her concern that her defense counsel "had some conflict of

interest."20 Judge Spearman confirmed Judge Amini had already addressed this

issue.

         Kaestner's defense counsel's relationship with Schwartz's boyfriend and his

parents is not a familial interest under RPC 1.7. Defense counsel's brother-in-

law's half-brother's son is not a member of defense counsel's family. And the

connection between defense counsel and Schwartz's boyfriend is not otherwise a

close relationship. Defense counsel testified that she could not remember the last

time she had seen Schwartz's boyfriend and that she saw the boyfriend's parents

only once or twice a year. Defense counsel also testified that she did not discuss

the case with Schwartz's boyfriend's parents, outside of confirming that her trial

did involve Schwartz. This undisputed testimony does not reveal a close

relationship between defense counsel and Schwartz's boyfriend or his parents. As




         19   Id. at 348-50.
         20   RP (June 20, 2017) at 641-42.



                                              10
No. 77319-4-1/11



a result, there is no actual conflict that precluded defense counsel from

representing Kaestner.

       Additionally, there is no showing that the connection between defense

counsel and Schwartz's boyfriend adversely affected defense counsel's

performance. Kaestner argues defense counsel's performance was adversely

affected because she did not cross-examine Schwartz and she did not challenge

the substantially exceeds aggravator. But Kaestner fails to establish that defense

counsel's trial strategy hampered her defense or caused some lapse in

representation contrary to her interests.21 It was a reasonable strategy for defense

counsel to avoid cross-examining Schwartz in an attempt to minimize the severity

of her injuries.

       Kaestner's argument is premised on the assumption that if defense counsel

had established Schwartz's injuries were not permanent, the substantially exceeds

aggravator would have failed. But as discussed below, the State is not required to

prove the victim's injuries were permanent to show those injuries substantially

exceeded substantial bodily harm. And there was a genuine risk that cross-

examining the victim or other witnesses about the severity of her injuries might

generate sympathy for the victim.




       21See State v. Robinson, 79 Wn. App. 386, 395, 902 P.2d 652(1995)
(quoting State v. Lingo, 32 Wn. App. 638, 646, 649 P.2d 130 (1982)).




                                         11
No. 77319-4-1/12



       We conclude there was no actual conflict of interest that adversely affected

defense counsel's performance. The court did not violate Kaestner's Sixth

Amendment right to conflict-free counsel.

       Kaestner also argues the court failed to conduct an adequate inquiry into

the potential conflict. We agree. The court did not conduct any meaningful

inquiry. But under these circumstances, reversal is not required because Kaestner

cannot show an actual conflict that adversely affected defense counsel's

performance.22

II. Right to Self-Representation

       Kaestner also contends she is entitled to a new trial because the court

violated her right to self-representation.

       We review a lower court's decision to grant or deny a defendant's request

to proceed pro se for abuse of discretion.23 "Under an abuse of discretion

standard, we do not reverse a trial court's decision unless the trial court applied

the wrong legal standard, based its decision on facts unsupported by the record,

or made a decision that is manifestly unreasonable."24




       22 See   Dhaliwal, 150 Wn.2d at 568, 574(A defendant is not "automatically
entitled to reversal based on the court's failure to inquire fully into the possible
conflict." Although the trial court failed to conduct an adequate inquiry, reversal
was not required because "Dhaliwal . . . failed to demonstrate the strong possibility
that a conflict of an interest had an effect on [defense counsel's] performance.").
      23 State   v. Curry, 191 Wn.2d 475, 483, 423 P.3d 179 (2018).
      24   Id. at 486.




                                             12
No. 77319-4-1/13



       The Washington State Constitution and the United States Constitution grant

criminal defendants the right to self-representation.25 But this right is in tension

with a defendant's right to the assistance of counse1.26 "Because of this tension, a

defendant must unequivocally request to proceed pro se before he or she will be

permitted to do so."27 Even if a defendant makes an unequivocal and timely

request, in order to grant a defendant's request to proceed pro se, the court must

establish that a defendant makes a voluntary, knowing, and intelligent waiver of

the right to counse1.28 "Mlle record must reflect that the defendant understood the

seriousness of the charge, the possible maximum penalty involved, and the

existence of technical procedural rules governing the presentation of his

defense."29 The court shall indulge "every reasonable presumption against a

defendant's waiver of his or her right to counsel.'"39

       On January 30, 2017, before Judge Lum, Kaestner orally moved to proceed

pro se, "I wanted to ask if I could represent myself."31 Judge Lum asked Kaestner

whether she had any experience representing herself. Kaestner informed the


      28   Id. at 482.
      28   Id.
      27   Id. at 482-83.
      28   Id. at 483(quoting State v. DeWeese, 117 Wn.2d 369, 377, 816 P.2d 1
(1991)).
      29   DeWeese 117 Wn.2d at 378.
       39 State v. Madsen, 168 Wn.2d 496, 504, 229 P.3d 714(2010)(internal
quotation marks omitted)(quoting In re Det. of Turay, 139 Wn.2d 379, 396, 986
P.2d 790 (1999)).
      31   RP (Jan. 30, 2017) at 18.




                                          13
No. 77319-4-1/14


court that she had previously represented herself in a family law matter. When the

court asked how this would be different, Kaestner responded, "It's criminal versus

family law. . .[a]nd it's a different courtroom."32 Kaestner stated she wanted to

proceed pro se "[b]ecause I've been here for nine months and I've went through

four attorneys, and I really want to expedite my case."33

       The court reminded Kaestner of the charges against her and the standard

sentencing range: "We're talking about some very serious allegations here and

potential that, you know, if you're convicted, you might be going to prison for five

years or longer."34 Kaestner indicated she understood the seriousness of the

crimes charged. The court asked Kaestner,"So how are you going to represent

yourself on these charges?"35 Kaestner replied, "I'm going to work with the

prosecutor and go to court and go to trial."36

       The court also inquired into Kaestner's knowledge of criminal law and

procedure. When the court asked Kaestner about the rules of evidence, Kaestner

replied, "I'm going to probably need to get out of my cell and go to the library and

stuff, you know."37 When asked about how she would file a suppression motion,

Kaestner replied, "I would write it up and send it off. . . . I would sent it to whoever I



       32   Id. at 19.
       33   Id.
       34   Id. at 23.
       35 Id.
       36 id.

       37 Id. at 24.




                                           14
No. 77319-4-1/15



need to send it to."38 Kaestner also stated, "[I]f it's too hard for me, I'll just get an

attorney."39 The court informed Kaestner, "[I]f you asked for an attorney to be

appointed for you, you're in over your head, you might not get one."4° Kaestner

acknowledged representing herself would be "a lot of work."41 The court stated,

"It's very clear to me you don't understand what you're getting into right now, and

that's why I'm going to have you sleep on this for an evening."42 The court

provided Kaestner a waiver of counsel form and instructed her to review the form.

       The next hearing was on February 2, 2017, before Judge O'Donnell. The

court attempted to address Kaestner's motion to proceed pro se. Initially,

Kaestner refused to attend court. Due to speedy trial concerns, the court issued a

reasonable force order to secure Kaestner's attendance. The court asked

Kaestner whether she wanted more time to think about representing herself.

Kaestner did not respond. The court asked,"Are you thinking, or are you just

wanting to be silent?"43 Again, Kaestner did not respond. The court stated, "I'm

going to take your silence as that you're thinking about it and you're not sure."44

Kaestner did not respond, and she never raised the issue again.



       38   Id.
       39   Id. at 25.
      4° Id.
       41   Id. at 26.
      42    Id.
      43 RP (Feb. 2, 2017) at 36-37.

      44    Id. at 37.




                                            15
No. 77319-4-1/16



       Kaestner argues the court violated her right to self-representation because

Judge Lum deferred the issue. But 10/en if a request is unequivocal, timely,

voluntary, knowing, and intelligent, a court may defer ruling if the court is

reasonably unprepared to immediately respond to the request."45 Given the

presumption against a defendant's waiver of his or her right to counsel, the court

reasonably deferred Kaestner's motion when it determined she had not fully

considered the consequences of proceeding pro se.

       Kaestner's request was timely because it was made before the jury was

impaneled. But her request was equivocal. On January 30, 2017, before Judge

Lum, Kaestner indicated, TN it's too hard for me, I'll just get an attorney."46 And

on February 2, 2017, Kaestner again exhibited hesitation when she refused to

answer Judge O'Donnell's questions.

       Even if Kaestner's request was timely and equivocal, her dialogue with

Judge Lum on January 31, 2017 and her silence on February 2, 2017 before

Judge O'Donnell evidences that her request was not knowing or intelligent.

Although Kaestner indicated she understood the seriousness of her charges and

the possible maximum penalty, Kaestner did not understand the technical

procedure rules governing her case. Kaestner did not have any history of

representing herself in a criminal matter. She was unaware of the rules of

evidence, and she did not know how to file a motion. And most problematic,


      45   Madsen, 168 Wn.2d at 504.
      46   RP (Jan. 30, 2017) at 25.




                                          16
No. 77319-4-1/17



Kaestner incorrectly assumed she would be able to get an attorney if it was too

hard for her to represent herself.

        We conclude the court did not abuse its discretion when it failed to grant

Kaestner's equivocal request to proceed pro se.

III. Awravating Factors

        Kaestner makes various challenges to the aggravating factors found by the

jury.

        The jury found the vehicular assault of Schwartz was aggravated under

RCW 9.94A.535(3)(y) because the injuries inflicted upon Schwartz substantially

exceeded the level of bodily harm necessary to prove vehicular assault. The jury

also found all of the charged felonies were aggravated under RCW 9.94A.535(3)(t)

because Kaestner committed the felonies shortly after she was released from

incarceration.

        a. Impermissibly Vague

        Kaestner contends sections (y) and (t) of RCW 9.94A.535(3) are

unconstitutionally vague.

        "The due process clauses of the Fifth Amendment and the Fourteenth

Amendment to the United States Constitution require that statutes afford citizens a

fair warning of prohibited conduct."47 "A statute is unconstitutionally vague if (1) 'it

fails to define the offense with sufficient precision that a person of ordinary




        47   State v. Murray, 190 Wn.2d 727, 736, 416 P.3d 1225 (2018).




                                           17
No. 77319-4-1/18



intelligence can understand it,' or (2) 'it does not provide standards sufficiently

specific to prevent arbitrary enforcement.'"45

       RCW 9.94A.535(3) contains "an exclusive list of factors that can support a

sentence above the standard range." Section (y) provides for an exceptional

sentence when "[t]he victim's injuries substantially exceed the level of bodily harm

necessary to satisfy the elements of the offense." "Substantial bodily harm" is an

element of vehicular assault.° RCW 9A.04.110(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."

       In State v. Duncalf, the defendant raised a due process vagueness

challenge to section (y).5° In Duncalf, the victim's "injuries include[d] substantial

impairment of the function of his lower jaw and lip that is likely permanent."51 Our

Supreme Court determined:

      A person of reasonable understanding would not have to guess that
      causing such permanent injuries—injuries significantly greater than
      those contemplated by the legislature in defining "substantial bodily
      harm"—might subject him to a sentence above the standard
      range.(52]



     48 Id. (internal quotation marks omitted)(quoting State v. Duncalf, 177
Wn.2d 289, 296-97, 300 P.3d 352(2013)).
      49    RCW 46.61.522.
      59 177 Wn.2d     289, 300 P.3d 352(2013).
       51Id. at 297.
      52 Id.




                                          18
No. 77319-4-1/19



        Here, Kaestner distinguishes Duncalf and argues section (y) is

unconstitutionally vague as applied to her because Schwartz's injuries were not

permanent. But the language of RCW 9.94A.535(3)(y) does not require that the

victim's injuries are permanent. And Duncalf does not create such a bright line

rule.

        Moreover, to show a victim's injuries substantially exceed the level of bodily

harm necessary to prove the offense, the State is not required to establish that the

victim's injuries reach the severity of the next category.53 To prove vehicular

assault, the State must prove the victim suffered "substantial bodily harm." The

next category is "great bodily harm."54

        Schwartz had several fractured facial bones, a fractured clavicle, a

fractured pelvic bone, and a traumatic brain injury, among other things. Any one

of these injuries alone would satisfy a "substantial bodily injury." Schwartz's

multiple injuries substantially exceed a temporary but substantial disfigurement or

impairment of a bodily function. Schwartz's multiple fractures and brain injury

resulted in her staying in the hospital for a month and using a wheelchair for

several months. Schwartz had to engage in physical therapy, she was unable to

fully return to her previous activities, and she had to delay going away to college.




        53 State   v. Pappas, 176 Wn.2d 188, 192, 289 P.3d 634 (2012).
      54 See RCW 9A.04.110(4)(c)("Great bodily harm" includes "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.").




                                          19
No. 77319-4-1/20



       A person of reasonable understanding would not have to guess that

causing such injuries might subject him or her to a sentence above the standard

range.55 The substantially exceeds aggravator from RCW 9.94A.535(3)(y) was not

void for vagueness as applied to Kaestner.

       Kaestner also challenges RCW 9.94A.535(3)(t). Section (t) provides for an

exceptional sentence when "Nile defendant committed the current offense shortly

after being released from incarceration." Kaestner argues that "shortly after

release" is "vague, speculative, and subject to arbitrary enforcement."56 Although

"shortly after" is not defined in the statute,57 in State v. Murray, our Supreme Court

relied on the dictionary definitions of "short" and "shortly:55 In Murray, the

defendant "began reoffending 16 days after being released from King County

jail:59 Our Supreme Court applied the dictionary definitions and determined "A

person of reasonable understanding would not have to guess that reoffending 16

days after being incarcerated is within a short time and within the proscribed

conduct under the rapid recidivism aggravator:6°




       55 See   Duncalf, 177 Wn.2d at 297.
       56   Appellant's Br. at 32.
       57 Our Supreme Court stated, "Shortly' is defined as 'in a short time:
PRESENTLY, SOON.' In turn, 'short' is defined as 'not extended in time: of brief
duration: lasting a little while only."). Murray, 190 Wn.2d at 737 (quoting
WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY 2012, 2013 (2002)).
      58    190 Wn.2d 727, 416 P.3d 1225 (2018).
      59 Id. at 738.
      60 id. (citing Duncalf, 177 Wn.2d at
                                           297).




                                         20
No. 77319-4-1/21



       Here, Kaestner began reoffending three days after being released from jail.

She argues that "her crimes were factually distinguishable from her prior

convictions."61 This is irrelevant. Similarity of offenses is not required to find the

rapid recidivism aggravator. It is merely "'additional evidence' of the defendant's

disregard for the law.'"62 The defendant's disregard for the law is "the gravamen

of rapid recidivism.'"63

       A person of reasonable understanding would not have to guess that

reoffending three days after being released from incarceration is within a short

time and within the proscribed conduct under the rapid recidivism aggravator."

The rapid recidivism aggravator from RCW 9.94A.535(3)(t) was not void for

vagueness as applied to Kaestner.

       b. Sufficiency of the Evidence     •

       Kaestner also contends the State failed to present sufficient evidence to

support the aggravators.

       As to the substantially exceeds aggravator, Kaestner again relies on

Duncalf and the lack of evidence that Schwartz's injuries were permanent. As

discussed above, RCW 9.94A.535(3)(y) does not require evidence that the victim's

injuries are permanent. Based on the evidence discussed in the vagueness


      61   Appellant's Br. at 34.
      62Murray, 190 Wn.2d at 738 (quoting State v. Combs, 156 Wn. App. 502,
506, 232 P.3d 1179 (2010)).
      63 Id. (quoting   Combs, 156 Wn. App. at 506).
      64 See   id. (citing Duncalf, 177 Wn.2d at 297).




                                          21
No. 77319-4-1/22



section above, we conclude the State presented sufficient evidence to support the

jury's finding that Schwartz's injuries substantially exceeded substantial bodily

harm.

        As to the rapid recidivism aggravator, Kaestner relies on State v. Combs to

argue the State presented insufficient evidence.65 In Combs, Division Three of this

court held, "[The rapid recidivism factor does not apply to an attempting to elude

offense committed six months after release from incarceration."66 The court

stated, "Six months is not a short period of time. We do not set an outer time limit

on what constitutes a short period of time. That period will vary with the

circumstances of the crime involved."67 The court went on to conclude,

        This case, however, does not present those circumstances.
        Attempting to elude typically is an impulse crime brought about by
        circumstances. There was no planning or premeditation. Mr. Combs
        had been released from custody and was present in Asotin County
        for six months before this offense. This was not rapid recidivism.(681

        Kaestner argues there is insufficient evidence to support the rapid

recidivism aggravator because there is no evidence that she planned this crime

and there is no factual connection to her previous convictions. Kaestner contends

the crimes are "an indication of mental health issues and not a desire to commit

new crimes."69 But as recognized in Combs, the "gravamen" of rapid recidivism is


        65   156 Wn. App. 502, 232 P.3d 1179 (2010).
        66   Id. at 505.
        67 Id. at 506.
        68   Id. at 507.
        69 Appellant's     Br. at 38.




                                         22
No. 77319-4-1/23



"disdain for the law."7° RCW 9.94A.535(t)"does not require a connection between

the offenses."71

       Here, Kaestner committed the charged crimes three days after being

released from jail. We conclude the State presented sufficient evidence to support

the jury's finding that Kaestner committed the crime shortly after being released

from incarceration.

IV. Substantial and Compelling Reasons Justifying Exceptional Sentence

       Kaestner argues the court violated her Sixth Amendment right to a trial by

jury because the court made an impermissible factual finding. Specifically,

Kaestner contends a jury, rather than the court, must find there are substantial and

compelling reasons justifying an exceptional sentence.

       Kaestner asks us to ignore our Supreme Court's decision in State v.

Suleiman72 and this court's decision in State v. Sage.73 Under Sage and

Suleiman, the question of "whether a court's stated reasons are sufficiently

substantial and compelling to support an exceptional sentence" is a question of

law.74 Kaestner contends this is a question of fact.




      70 Combs, 156 Wn. App. at 506 (citing State v. Butler, 75 Wn. App. 47, 54,
876 P.2d 481 (1994)).
      71   Id.
      72   158 Wn.2d 280, 143 P.3d 795 (2006).
      73   1 Wn. App. 2d 685, 407 P.3d 359 (2017).
      74   Suleiman, 158 Wn.2d at 291, n.3; Sage, 1 Wn. App. 2d at 709.




                                        23
No. 77319-4-1/24



       Under RCW 9.94A.537, the jury is the exclusive finder of fact as to whether

the alleged aggravators have been proven beyond a reasonable doubt. Although

RCW 9.94A.537(6) provides the court may impose an exceptional sentence "if it

finds" the facts found by the jury "are substantial and compelling reasons justifying

an exceptional sentence," the trial court is not truly making an impermissible

factual determination.

       Here, the jury found the State had proven the aggravators beyond a

reasonable doubt. At sentencing, the court declared that the jury had found the

aggravators beyond a reasonable doubt and that those findings present

"substantial and compelling reasons" for an exceptional sentence for the vehicular

assault of Schwartz.75

       Consistent with Suleiman and Sage, we conclude the court did not violate

Kaestner's Sixth Amendment right to a jury. The court did not make an

impermissible factual finding.

V. Length of Exceptional Sentence

       Kaestner contends her sentence for vehicular assault was clearly

excessive.

       We review whether an exceptional sentence is clearly excessive for abuse

of discretion.76 "A sentence is not clearly excessive unless it is clearly




       75   Clerk's Papers(CP) at 264.
       76   State v. Souther, 100 Wn. App. 701, 721, 998 P.2d 350 (2000).




                                          24
No. 77319-4-1/25



unreasonable, that is, it was imposed on untenable grounds or for untenable

reasons or is a sentence that no reasonable person would have imposed."77

       Here, the court sentenced Kaestner to 100 months for the vehicular assault

of Schwartz. The standard sentence range for vehicular assault, given Kaestner's

offender score, was 43 to 57 months.78 The court concluded each of the

aggravators "standing alone" was "sufficient justification for the length of the

exceptional sentence imposed."79

       Kaestner's argument focuses on her mental health issues. She argues

neither she nor the community will benefit from an exceptional sentence because

her "mental illness is unlikely to improve while incarcerated."80 But Kaestner fails

to provide any authority to support this argument.

       As discussed in the aggravating factors section, given the severity of

Schwartz's injuries and the fact that Kaestner committed these crimes only three

days after being released from incarceration, the 100-month sentence for the

vehicular assault of Schwartz is not clearly excessive. Kaestner fails to show that

the trial court abused its discretion by imposing an exceptional sentence.

VI. DNA Fee

       In her reply brief, Kaestner challenges the $100 DNA collection fee imposed

by the trial court.


       77   Id.
       78   RCW 9.94A.525.
       78   CP at 264.
       80 Appellant's Br. at 49.



                                          25
No. 77319-4-1/26



       At the time of Kaestner's sentencing in 2017, the collection fee was

mandatory.81 In 2018, the legislature amended the DNA collection statute. Under

the amendment, the trial court is required to impose the $100 DNA collection fee

"unless the state has previously collected the offender's DNA as a result of a prior

conviction."82 And in State v. Ramirez, our Supreme Court held this amendment

applies prospectively to cases pending on direct review.83 At oral argument, the

State conceded that Kaestner's DNA was previously collected prior to her

sentencing in this case. We accept the State's concession.

       Therefore, we affirm Kaestner's conviction and sentence but remand for the

trial court to strike the $100 DNA fee.




WE CONCUR:




                                               ,S7lukcsse,
                                                                        o
       81   Former RCW 43.43.7541 (2015).
       82   RCW 43.43.7541; H.B. 1783,§ 18, 65th Leg., Reg. Sess.(Wash. 2018).
       83   191 Wn. 2d 732, 747, 426 P.3d 714 (2018).




                                          26
