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      IN THE SUPREME COURT OF THE STATE OF WASHINGTON




STATE OF WASHINGTON,                   )
                                       )      No. 86853-1
                   Respondent,         )
                                       )
      v.                               )      EnBanc
                                       )
RICHARD TREVOR DUNCALF,                )
                                       )
                   Petitioner.         )
                                       )      Filed          MAY 02 2013


      C. JOHNSON, J.-This case involves a challenge to an exceptional sentence,

imposed for a second degree assault conviction, where the jury found that the

victim's injuries "substantially exceeded" the harm necessary to satisfy the elements

of the offense. Richard Dun calf was tried on charges of first degree assault and, as

an alternative, second degree assault. The jury acquitted on the first degree assault

but found Duncalf guilty of second degree assault. The jury also was instructed on

an aggravating factor and found that the victim's injuries "substantially exceeded"

the harm necessary to satisfy second degree assault to support the exceptional

sentence imposed. Duncalf appealed challenging whether, under the statute defining
No. 86853-1


second degree assault, a victim's injuries can legally exceed those contemplated by

the statutory definition absent a jury finding of "great bodily harm." Duncalf also

challenged the exceptional circumstances inquiry as being unconstitutionally vague.

The Court of Appeals affirmed and we affirm.

                                        FACTS

       On the evening of April 21, 2007, Dun calf returned to the apartment he

shared with his girl friend, Tasha Deptula, and his roommate, James Ketchum.

Deptula was not home. Ketchum, however, was in his own bedroom engaged in

sexual intercourse with his on-and-off girl friend Stacy Worthington. Duncalf

entered the room and, mistaking Worthington for his girl friend Deptula, proceeded

to push Ketchum off the bed and punch him in the face numerous times inflicting
   .    '   . .
senous mJunes.

       Ketchum's injuries were severe. When paramedics arrived, Ketchum was

unconscious, bleeding from the ear, and had to be intubated in order to breathe

properly. He suffered at least eight fractures, including a fractured rib that punctured

the lung membrane causing pneumothorax (a pocket of air in the chest cavity that

compresses the lung). Ketchum had to undergo facial surgery to repair his jaw,

which was broken in multiple places. Doctors ultimately realigned the jaw, inserted

titanium plates, and wired the jaw shut for over five weeks.



                                           2
No. 86853-1


       At the time of trial, a year after the assault, Ketchum still suffered from nerve

damage and an inability to feel his lower jaw and lip. As a result, Ketchum tended to

"dribble" and "drool" when he ate and slept. Verbatim Report of Proceedings (June

17, 2008) at 92. The surgeon who performed the facial surgery testified at trial that

the injuries were likely to be permanent.

       The State charged Dun calf with assault in the first degree, alleging that "with

intent to inflict great bodily harm, [DuncalfJ did assault another and inflict great

bodily harm." Clerk's Papers (CP) at 12. The State additionally charged Duncalf, in

the alternative, with assault in the second degree, alleging that Duncalf intentionally

assaulted Ketchum, thereby "recklessly inflict[ing] substantial bodily harm" upon

him. CP at 14. The jury acquitted Duncalf of first degree assault but convicted him

of second degree assault and found that the injuries inflicted substantially exceeded

the level of bodily harm necessary to satisfy the elements of that offense. The trial

judge imposed an exceptional sentence of 100 months in jail. 1 Dun calf appealed the

exceptional sentence and the Court of Appeals affirmed. 2 State v. Duncalf, 164 Wn.


       1
          Duncalfhad an offender score of eight and faced a standard range of 53 to 70 months. In
this case, Duncalfs conviction for second degree assault with aggravating circumstances resulted
in a sentence below the standard range for first degree assault.
       2
         The Court of Appeals "harmonized" the jury's general verdict and special verdict,
concluding the jury found that Duncalf did not intend to inflict great bodily harm upon Ketchum,
as necessary for a conviction of assault in the first degree but that Duncalf did inflict such harm
recklessly, thus supporting both the jury's guilty verdict and its special verdict. The court further


                                                  3
No. 86853-1


App. 900, 267 P.3d 414 (2011), review granted, 173 Wn.2d 1026, 273 P.3d 982

(20 12).

                                               ISSUES

1.     Whether the "substantially exceed" aggravating factor may be properly

applied to a conviction for second degree assault?

2.     Whether the "substantially exceed" factor is unconstitutionally vague?

                                             ANALYSIS
       1. Exceptional Sentence

       Under the statute, a trial court may impose a sentence above the standard

range if the jury finds that the "victim's injuries substantially exceed the level of

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

9.94A.535(3)(y). In sentencing Duncalf, the trial court relied on a jury finding that

Ketchum's injuries substantially exceeded the level of bodily harm necessary to

satisfy the elements of second degree assault, that level of harm being "substantial

bodily harm." 3



concluded that Duncalf could not challenge for the first time on appeal the trial court's decision
not to instruct the jury on the definition of "substantially exceeds," reasoning that under State v.
Gordon, 172 Wn.2d 671,260 P.3d 884 (2011), "instructional errors" are of constitutional
magnitude only where the jury is not instructed on every element of the charged crime.
       3
         "'Substantial bodily harm"' is defined 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 that causes a fracture of any bodily part." RCW
9A.04.110(4)(b). The jury was provided this definition in instruction 19. CP at 373.


                                                   4
No. 86853-1


      In State v. Stubbs, 170 Wn.2d 117, 240 P.3d 143 (2010), we reviewed an

exceptional sentence imposed for a first degree assault conviction analyzing the

same aggravating fact determination by the jury here, i.e., that the injuries inflicted

substantially exceeded those necessary to satisfy the elements of the offense. In

reviewing the statutory elements of first degree assault, we recognized the primary

elements were (1) an intent to inflict great bodily harm and (2) infliction of great

bodily harm. In our analysis, we rejected the State's argument that, as to the harm

element, a range of injuries existed that could support a finding of great bodily

harm. We reasoned, as to the degree of harm element, that in order to convict, the

State had to prove the defendant inflicted great bodily harm and the statute did not

establish a range of great bodily harm. We recognized that the only "harm" that

could exceed great bodily harm was death and, by inference, that any lesser degree

of harm would be insufficient to support a finding above great bodily harm. That

reasoning does not apply in the context of a second degree assault situation.

       The elements in a second degree assault proceeding include (1) reckless

infliction of (2) substantial bodily harm. As to the harm element, the State advances

the argument, similar to that advanced in Stubbs, that for second degree assault a

range of potential injury that could qualify as substantial bodily harm exists.

Dun calf counters that under Stubbs, the "substantially exceeds" aggravating factor



                                            5
No. 86853-1


cannot apply to second degree assault unless a jury finds Dun calf inflicted great

bodily harm. His argument equates a finding of great bodily harm with the

"substantially exceeds" aggravating factor and posits that since he was acquitted of

first degree assault, the jury necessarily rejected a finding of great bodily harm.

Because the jury did not find that Dun calf inflicted great bodily harm, he argues, the

trial court's imposition of the exceptional sentence violated the Sixth Amendment to

the United States Constitution under Blakely v. Washington, 542 U.S. 296, 124 S.

Ct. 2531, 159 L. Ed. 2d 403 (2004). 4

       In rejecting this argument, the Court of Appeals reasoned, in part, that the

acquittal of the first degree assault conviction could have been based on the lack of

intent to inflict great bodily harm element of first degree assault. We agree that the

jury acquittal of first degree assault does not support Duncalfs argument that the

jury necessarily made a specific finding on the level of harm involved in this case.

       Our recent decision in State v. Pappas, 176 Wn.2d 188, 289 P.3d 634 (2012),

is instructive. We noted there that RCW 9.94A.535(3)(y) requires a comparison of

the victim's injuries against the minimum necessary to satisfy the elements of the

offense. We explained that, "[ w ]hile the jump between statutory categories of harm


       4
          In Blakely, the Supreme Court held that"' [o]ther than the fact of a prior conviction, any
fact that increases the penalty for a crime beyond the prescribed statutory maximum must be
submitted to ajury, and proved beyond a reasonable doubt."' Blakely, 542 U.S. at 301 (quoting
Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000)).


                                                  6
No. 86853-1


necessarily meets the 'substantially exceed' test, injuries can 'substantially exceed'

one category of harm without reaching the severity of the next category." Pappas,

176 Wn.2d at 192. Thus, the statute "only requires that the injuries 'substantially

exceed,' rather than a requirement to meet a higher category of harm." Pappas, 176

Wn.2d at 193. In this case, the jury was instructed as to the definition of "substantial

bodily harm" and asked by special verdict whether Ketchum's injuries substantially

exceeded the level of bodily harm necessary to satisfy that harm element. It found

this aggravating factor beyond a reasonable doubt. This was the only finding

required to authorize the trial court's imposition of the exceptional sentence. Thus,

Blakely is satisfied.

       2. Vagueness

       Duncalf also raises a due process vagueness challenge to the "substantially

exceed" aggravating factor. In State v. Baldwin, 150 Wn.2d 448, 78 P.3d 1005

(2003), this court held that aggravating factors are not subject to a vagueness

challenge. Duncalfurges us to reconsider this decision in light of Blakely. We find it

unnecessary to address the broad question of whether Baldwin survives Blakely.

Even assuming the vagueness doctrine applies in this case, Duncalfs challenge to

RCW 9.94A.535(3)(y) is unavailing.




                                            7
No. 86853-1


      A statute is void for vagueness if it "fails to define the offense with sufficient

precision that a person of ordinary intelligence can understand it, or it does not

provide standards sufficiently specific to prevent arbitrary enforcement." State v.

Eckblad, 152 Wn.2d 515, 518, 98 P.3d 1184 (2004) (citing City of Spokane v.

Douglass, 115 Wn.2d 171, 178, 795 P.2d 693 (1990)). The test for vagueness is

whether a person of reasonable understanding is required to guess at the meaning of

the statute. State v. Branch, 129 Wn.2d 635, 648, 919 P.2d 1228 (1996). "We

consider whether a statute is vague as applied to the particular facts at issue, for ' [a]

plaintiff who engages in some conduct that is clearly proscribed cannot complain of

the vagueness of the law as applied to the conduct of others.'" Holder v.

Humanitarian Law Project,_ U.S._, 130 S. Ct. 2705, 2719, 177 L. Ed. 2d 355

(2010) (quoting Vill. ofHoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S.

489, 495, 102 S. Ct. 1186, 71 L. Ed. 2d 362 (1982)).

       In this case, the aggravating factor required the jury to find that Ketchum's

injuries substantially exceeded "substantial bodily harm," defined 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." RCW 9A.04.11 0(4)(b ).

Ketchum's injuries include substantial impairment ofthe function ofhis lower jaw



                                             8
No. 86853-1


and lip that is likely permanent. 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.

      In addition, the term "substantial" is used in a number of criminal statutes that

have withstood due process vagueness challenges. See, e.g., State v. Worrell, 111

Wn.2d 537, 544, 761 P.2d 56 (1988) ('"interferes substantially with his liberty"' in

kidnapping statute not unconstitutionally vague (emphasis added) (quoting former

RCW 9A.40.010(6) (1975))); State v. Saunders, 132 Wn. App. 592, 599, 132 P.3d

743 (2006) ("'substantial pain"' in third degree assault statute not unconstitutionally

vague (emphasis added)). The statutory definition of "substantial bodily harm"

offers a sufficiently objective definition for jurors to compare to a particular victim's

injuries and apply the "substantially exceeds" standard of the aggravating factor.

Again, assuming a vagueness challenge may be made to an aggravating factor, we

conclude that RCW 9.94A.535(3)(y) is not vague under the facts here.

                                     CONCLUSION

      The jury found by special verdict that Duncalf inflicted injuries upon

Ketchum that "substantially exceeded" the level of bodily harm necessary to satisfy




                                            9
No. 86853-1


the elements of second degree assault. We conclude no further finding was required.

We further conclude that RCW 9.94A.535(3)(y) is not vague as applied to Duncalf.




                                         10
No. 86853-1




WE CONCUR:




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