                                                           2015 JUN 22 AH 9= 5b

      IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON,                             DIVISION ONE


              Respondent,                        No. 71620-4-1


         v.                                      UNPUBLISHED OPINION


HUGH EDWIN WILCOX,

              Appellant.                         FILED: June 22, 2015


       Dwyer, J. — Hugh Wilcox was charged with one count of assault in the

first degree and one count of assault in the second degree with the aggravating

circumstance that the victim's injuries substantially exceeded the level of bodily

harm necessary to satisfy the elements of the offense. By jury verdict, Wilcox

was acquitted ofassault in the first degree but convicted ofassault in the second
degree. The jury also found the aggravating circumstance proved. On appeal,
Wilcox contends that the aggravating circumstance, in particular the requirement

that the jury determine whether the victim's injuries substantially exceeded the
harm necessary to satisfy the elements of the offense, was unconstitutionally
vague. He also contends that the State was required to prove that not only the
victim's injuries, but also the defendant's conduct, exceeded the statutory

requirement. Finding no error, we affirm.

                                          I


       Wilcox and Stephen Jennings were roommates in a house that they also

shared with Michael Munoz, Kara Anderson, and Wilcox's wife, Cheryl.
No. 71620-4-1/2



      On November 6, 2012, Wilcox assaulted Jennings, causing him

permanent, life-threatening brain injury. Prior to the assault, Jennings got into a

verbal argumentwith Wilcox and Cheryl. Jennings testified that he remembered

Wilcox hitting him twice on the head, and a third time somewhere else. Although
Jennings' memory of the assault was limited, he remembered falling from the
couch on which he was seated to the floor and experiencing his right side being

paralyzed.

       According to Cheryl, when the argument started, Jennings was on the
couch. She left the room to go to the bathroom. When she returned after a "few
seconds," Jennings was sitting on the floor. He was holding his head and "acting
funny." Cheryl did not see how Jennings ended up on the floor, nor did she see
Wilcox hit Jennings.

       Anderson witnessed part ofthe altercation between Wilcox and Jennings.
She saw Wilcox yell at Jennings and push him on his forehead with the palm of
his hand. Anderson then left the room. While she was gone, she did not hear
any loud noises, but when she came back into the room, she saw Jennings on
the floor with his arms around Wilcox, obviously injured.

       Munoz arrived home after the assault and found Jennings on the floor,

holding his head and looking dazed. He and Wilcox picked up Jennings, who
could no longer stand on his own, and carried him to Munoz's truck. Although
they "flew down" to Northwest Hospital, Jennings could not walk or speak by the
time they arrived. An emergency healthcare provider found Jennings slumped




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No. 71620-4-1/3



over in a wheelchair in the hospital lobby without a wallet, identification, or

anyone to explain what had happened.

       Wilcox later admitted to police that he had intervened in an argument

between Cheryl and Jennings and that he had cracked Jennings' skull in the

process. Wilcox acknowledged that he had held Jennings down by his head and

that he heard it "crunch." Additionally, Wilcox told a friend that he put Jennings'

head "down with force" and that "it sounded like a chicken bone crunching."

       Northwest Hospital staff transferred Jennings to Harborview Medical

Center for emergency brain surgery upon determining that he had suffered a

massive brain bleed and a severe compressed skull fracture. Jennings' skull had

been indented and shattered into multiple "jagged little pieces," causing a large

and potentially fatal amount of bleeding in his brain. Additionally, the midline of
Jennings' brain had shifted 11 millimeters, a significant amount.

       At Harborview, doctors removed part of Jennings' skull and a blood clot in

an effortto relieve the pressure on his brain. Following the surgery, Jennings

required a nearly four-month stay at Harborview in the intensive care and in
patient rehabilitation units. Jennings was discharged to a nursing facility.

       By the time of trial, Jennings was still living in the nursing facility,

paralyzed on the right side of his body, forced to use a wheelchair, and unable to
communicate easily. Jennings' treating physician testified that he is not expected

to make a full recovery.

       The State charged Wilcox with one count of assault in the first degree -

domestic violence and, in the alternative, one count of assault in the second
No. 71620-4-1/4



degree - domestic violence. The second degree assault charge included the

aggravating circumstance that the victim's injuries substantially exceeded the

level of bodily injury necessary to satisfy the elements of the offense.

       Prior to closing arguments, Wilcox proposed that the court amend the

aggravating circumstance instruction to state that the prosecutor was required to

prove that he intended to cause Jennings great bodily harm. Wilcox argued that

the proposed intent element was required under case law, even though it was not

included in the pattern instruction. The State opposed the amendment,

contending that neither the statute nor case law required a jury finding of intent.

The trial court declined to do so.

       The jury acquitted Wilcox of first degree assault but found him guilty of

second degree assault and found both the domestic violence allegation and the

aggravating circumstance proved. The trial court imposed an exceptional

sentence of 73 months of incarceration.

                                          II


       Wilcox argues that the trial court erred by imposing an exceptional

sentence based on the "substantially exceeds" aggravating circumstance. This is

so, he asserts, because the charged circumstance is unconstitutionally vague

under the due process clause. Because void for vagueness challenges do not

apply to sentencing aggravators, we disagree.

       Under the due process clause, a statute is void for vagueness if it either

(1) fails to define the offense with sufficient precision that a person of ordinary
intelligence can understand it, or (2) it does not provide standards sufficiently
No. 71620-4-1/5



specific to prevent arbitrary enforcement. State v. Eckblad, 152 Wn.2d 515, 518,

98 P.3d 1184 (2004). Both prongs of the vagueness doctrine focus on laws that

proscribe or mandate conduct. State v. Baldwin, 150 Wn.2d 448, 458, 78 P.3d

1005 (2003).

      Our Supreme Court has held that aggravating circumstances are not

subject to vagueness challenges under the due process clause. Baldwin, 150

Wn.2d at 459.


              The sentencing guideline statutes challenged in this case do
      not define conduct nor do they allow for arbitrary arrest and criminal
      prosecution by the State. [United States v. lWivell, 893 F.2d [156,]
      160 [(8th Cir. 1990)]. Sentencing guidelines do not inform the public
      of the penalties attached to criminal conduct nor do they vary the
      statutory maximum and minimum penalties assigned to illegal
      conduct by the legislature. A citizen reading the guideline statutes
      will not be forced to guess at the potential consequences that might
      befall one who engages in prohibited conduct because the
      guidelines do not set penalties. Thus, the due process
      considerations that underlie the void-for-vagueness doctrine have
      no application in the context of sentencing guidelines.

Baldwin, 150 Wn.2d at 459. Further, the guidelines do not create a

"constitutionally protectable liberty interest" because they do not require that a

specific sentence be imposed. Baldwin, 150 Wn.2d at 461.

       Wilcox does not acknowledge Baldwin, much less argue that it does not

constitute controlling authority. Instead, he argues that a due process vagueness

challenge is possible in light of Blakelv v. Washington, 542 U.S. 296, 124 S. Ct.
2531, 159 L. Ed. 2d 403 (2004).

       Blakelv provides for no such thing. Blakelv concerns itself with the Sixth
Amendment jury trial right. As applied to sentencing facts, Blakelv discusses
No. 71620-4-1/6



who decides the factual contest (the judge or the jury). It does not concern itself

with what is decided.

       Wilcox has not provided any cogent legal argument suggesting how

Blakelv, a decision firmly anchored in the Sixth Amendment right to a jury trial,

has modified the Fourteenth Amendment due process vagueness analysis

articulated in Baldwin. Baldwin controls. Wilcox's vagueness challenge is

unavailing.1

                                               Ill


        Wilcox next contends that insufficient evidence supports the jury's finding

regarding the "substantially exceeds" aggravating circumstance. This is so, he
asserts, because the State was required to prove not only that Jennings' injury—
but also his own conduct—exceeded the level necessary to establish assault in
the second degree. Because the State was not required to prove excessive
conduct, we disagree.

        Wilcox's contention that the State was required to prove that the conduct

giving rise to the harm exceeded the level necessary to satisfy the elements of
the offense is contrary to the plain language ofthe aggravating circumstance
statute. RCW 9.94A.535(3)(y) provides that the trial court may impose an
exceptional sentence if the jury finds beyond a reasonable doubt that "[t]he


         1Wilcox also relies on Eighth Amendment death penalty cases to support his vagueness
 challenge However, he fails to cite any authority holding that a vagueness challenge under the
 Eighth Amendment applies outside the death penalty context. Several courts, including this
 court have held that it does not. See State v. E.A.J.. 116 Wn. App. 777, 792, 67 P.3d 518 (2003)
 (rejecting Eighth Amendment vagueness challenge to juvenile manifest injustice); Holman v.
 Page 95 F3d 481, 487 (7th Cir. 1996) (holding that Eighth Amendment vagueness inquiry does
 not apply to non-capital cases), overruled on other grounds. Owens v. United States, 387 F.3d
 607 (7th Cir. 2004).


                                               -6-
No. 71620-4-1/7



victim's injuries substantially exceed the level of bodily harm necessary to satisfy

the elements of the offense." (Emphasis added.) As written, the statute focuses

solely on the seriousness of the victim's injuries and makes no reference to the

defendant's intent or conduct.

      The Washington Supreme Court has interpreted this provision in

accordance with its plain language. In State v. Stubbs, 170 Wn.2d 117,130-31,

240 P.3d 143 (2010), our Supreme Court recognized that the "substantially

exceeds" aggravating circumstance set forth in RCW 9.94A.535(3)(y) codified the

"serious injury" aggravating circumstance at common law. The court noted that

the aggravating circumstance arose out of case law that had established that
'"particularly severe injuries may be used to justify an exceptional sentence,' but
only if they are 'greater than that contemplated by the Legislature in setting the
standard range.'" Stubbs, 170 Wn.2d at 124 (emphasis added) (quoting State v.
Cardenas, 129 Wn.2d 1, 6, 914 P.2d 57 (1996)). The court acknowledged that,

by directing the trier of fact to measure the victim's actual injuries against the
minimum injury that would satisfy the elements ofthe offense, the statute created
a "somewhat different test" than previously articulated in the case law. Stubbs,

170 Wn.2d at 128-29. Nevertheless, the court applied the statute consistent with

its plain language, focusing on the seriousness ofthe victim's injuries and not on
the defendant's conduct.

       Subsequent decisions ofthe Supreme Court analyzing the "substantially
exceeds" aggravating circumstance have also evaluated the seriousness of the
victim's injuries without consideration of the defendant's conduct causing them.


                                         -7
No. 71620-4-1/8



See State v. Duncalf. 177 Wn.2d 289, 297, 300 P.3d 352 (2013) (holding that the

victim's likely permanent impairment of his lower jaw substantially exceeded the

level of harm required to prove second degree assault); State v. Pappas, 176

Wn.2d 188, 193, 289 P.3d 634 (2012) (holding that the victim's permanent and

severe brain injury substantially exceeded the level of harm required to prove

vehicular assault).

       The State was not required to offer proof regarding Wilcox's conduct or

intent in order to establish the "substantially exceeds" aggravating circumstance.

Moreover, there is no dispute that sufficient evidence was presented regarding

Jennings' devastating injuries. Therefore, sufficient evidence supports the jury's

finding that the aggravating circumstance was proved.2

       Affirmed.


                                                 '~i
We concur:




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        2 In a brief statement of additional grounds, Wilcox raises three additional issues—(1)
that "[t]he jurors were made aware ... that [he] was incarcerated," (2) that "[he] was not read [his]
Miranda rights properly," and (3) that he had "asked for an attorney several times." Wilcox does
not provide any citations to the record or cite any authority in support of these claims. Therefore,
he has not established an entitlement to relief. See RAP 10.10(c).



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