 IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON,
                                                  No. 73107-6-1
                     Respondent,
                                                  DIVISION ONE                s    3§
             v.
                                                                              -o   rrlc:.
SEAN LAWARD GRAHAM,                               UNPUBLISHED OPINION rv>
                                                                      en
                                                                          °>1
                                                                          jET,r

                     Appellant.                                               -g   :r •> •-•

                                                  FILED: April 25,2016        co g£
                                                                              O    2E*<


      Trickey, A.C.J. — Sean Graham appeals his convictions for one count of

first degree assault and three counts of custodial assault. He argues the trial
court abused its discretion when it denied his motion for mistrial after a witness

referred to his cell block as a "disciplinary unit." He also contends his exceptional
sentence is improper because the State failed to present sufficient evidence to
support the aggravating factor of particular vulnerability and that the statute
permitting this factor is unconstitutionally vague.
       Because the allegedly prejudicial comments did not warrant a mistrial, we
conclude the trial court did not abuse its discretion when it denied the motion.

Further, the record shows the State presented sufficient evidence to support the
aggravating factor, and Graham's vagueness challenge fails. We affirm the
judgment and sentence.

                                       FACTS

       In January 2011, Sean Graham was an inmate at King County's Maleng
Regional Justice Center in Kent, Washington. Graham was held in "Nora East,"
a segregation unit—also known as solitary confinement—in which inmates
No. 73107-6-1/2



remain in individual cells for 23 hours per day, and are allowed out for one hour

to bathe, make phone calls, receive visits, exercise, and do other activities.1 On
January 9, 2011, Corrections Officer Gil Letrondo was on duty in Nora East when

officers performed a security check of the cells.            One officer discovered
contraband food in Graham's cell. The sergeant on duty determined the food

constituted a rule infraction and decided that Graham would lose his hour out of

his cell the following day.

         On January 10, Letrondo told Graham that he had lost his hour out that
day. Letrondo testified that this made Graham "very mad."2 Graham called
Letrondo a "pussy motherfucker," and said, "Let me out. I'll beat you up and kill
you."3
         On January 11, the next day, Officer Michael Wells was monitoring Nora
East while Graham was outside of his cell. Letrondo arrived to relieve Wells for a
15-minute break. Wells asked Letrondo if Graham should go back into his cell,
but Letrondo declined, stating he "didn't want to aggravate the situation."4 Wells
left Letrondo to monitor Nora East for approximately 12 minutes. After Wells
returned, he and Letrondo stood at a central officer counter discussing a

1 2 Report of Proceedings (RP) (Nov. 3, 2014) at 52; 10 RP (Nov. 18, 2014) at 36.
Consistent with the parties, the verbatim report of proceedings are numbered as follows:
1RP (Oct. 30, 2014); 2RP (Nov. 3, 2014); 3RP (Nov. 4, 2014); 4RP (Nov. 5, 2014); 5RP
(Nov 10 2014); 6RP (Nov. 12, 2014—opening statements); 7RP (Nov. 12, 2014); 8RP
(Nov 13 2014); 9RP (Nov. 17, 2014); 10RP (Nov. 18, 2014); 11RP (Nov. 24, 2014);
12RP (Nov 25, 2014); 13RP (April 11, 2011 through Dec. 28, 2011); 14 RP (March 7,
2012 through Nov. 27, 2012); 15RP (Feb. 27, 2013 through Dec. 4, 2013); 16RP (March
17, 2014 through April 9, 2014—competency hearing); and 17RP (Jan. 9, 2015—
sentencing).
210 RP (Nov. 18, 2014) at 129.
310 RP (Nov. 18, 2014) at 129-30.
4 10RP(Nov. 18, 2014) at 132.
No. 73107-6-1/3



computer issue. Wells glanced down at a logbook. When he looked up, he saw

Graham approximately two feet away from Letrondo, "moving very fast towards

him."5

         Graham struck Letrondo in the temple area with a closed fist. Letrondo

stumbled back four or five steps. Wells hit Graham in the face and made a "code

blue" distress call on his radio.6    Graham ran over to Letrondo and hit him a

second time, and Letrondo stumbled and fell against the back wall. Letrondo fell

to the floor and stopped moving. He appeared to be unconscious.

         Wells rushed over and exchanged blows with Graham. Graham struck

Wells in the jaw, knocking him backwards briefly. While Wells was dazed,
Graham stomped on Letrondo, who was still motionless on the floor:
               At that point, inmate Graham ran over and started jumping
         up and down on top of Officer Letrondo, stomping on the upper part
         of his body here around the neck and head area.

                He was jumping in the air as high as he could and stomping
         down with one foot on top of him.[7]

Letrondo never moved while this occurred. Wells reengaged with Graham and
got him off Letrondo. Wells and three other officers eventually subdued Graham
and placed him in a holding cell down the hall in another part of the jail.
         Other officers responded to Letrondo, who was lying motionless on the
floor with a pool of blood around his head. Letrondo exhibited labored breathing
and could not speak. He had memory problems and could not identify the


510 RP (Nov. 18, 2014) at 49.
610 RP (Nov. 18, 2014) at 53.
7 10RP(Nov. 18, 2014) at 55.
No. 73107-6-1/4



president or recall where he was. He spent three days at Valley Medical Center,

where doctors discovered injuries to Letrondo's face, chest, and the back of his

head. A CT (computed tomography) scan revealed internal bleeding around his

brain.    Letrondo later required nose surgery, and he suffered from memory

problems for years following the incident. He never returned to work.
         The State charged Graham by first amended information with one count of
first degree assault with two aggravating factors, four counts of custodial assault,
and one count of harassment.        Count 1 alleged that on January 11, 2011,

Graham assaulted Letrondo with intent to inflict great bodily harm and with force

and means likely to produce great bodily harm or death. The first aggravating
factor alleged that Graham knew or should have known that Letrondo was
particularly vulnerable or incapable of resistance, and that Letrondo's
vulnerability was a substantial factor in the commission of the offense. The
second aggravating factor alleged that Graham committed the offense against a
law enforcement officer who was performing his official duties at the time of the
offense. Counts 2 through 5 alleged that Graham intentionally assaulted Officers
Michael Wells, Marcial Williamson, Michael Allen, and Timothy Wright. Count 6
alleged that Graham threatened Corrections Officer Sharon Coleman with bodily
harm.

         The State agreed to sever count 6 and continued to trial on counts 1
through 5. The jury convicted Graham on counts 1 through 4, finding both
aggravating factors in count 1. The jury acquitted Graham on count 5—custodial
 assault of Timothy Wright. Following the trial, the State dismissed count 6.
                                           4
No. 73107-6-1/5



      The court imposed an exceptional sentence of 301 months on count 1,

which included the high end of the standard range for assault in the first degree

with an offender score of 8 plus 12 additional months per aggravating factor. The

court imposed standard-range terms of 43 months each on counts 2 through 4, to

run concurrently with count 1. Graham appeals.

                                     ANALYSIS

                                         Mistrial


       Graham argues the trial court abused its discretion when it denied his

motion for a mistrial after a State witness violated the trial court's motion in limine

by indicating that Graham occupied a segregated unit intended for "ultra security"
inmates with disciplinary violations.8

       During motions in limine, the State sought the court's permission to
discuss Graham's custody status. The State wanted to explain that Nora East
was an area designated for "administrative segregation" for "inmates who have
had disciplinary problems."9 The State argued the circumstances surrounding
Graham's custody were relevant to explain the physical layout of the area where
the crime occurred and the unique policies affecting inmates residing in Nora

East—namely, that they are permitted outside of their solitary cells for only one
hour each day.




87RP(Nov. 12, 2014) at 42.
92RP(Nov. 3, 2014) at 50.
No. 73107-6-1/6



        The court agreed with the State, but noted its concern that testimony

regarding Nora East could imply that the inmates in that unit exhibit a propensity

for violence:

                   Well, it's clearly relevant, what the layout of the area was,
        where the incident occurred, that there's limited access to common
        areas, limited access to the cells, that it's not an open pod, the one-
        hour rule. All that is clearly relevant.
              My concern is saying that he was in an administrative
        segregation does strongly imply that's because of prior disciplinary
        problems, which could lead the jury to infer a propensity for
        violence.[10]

The court reserved ruling on the issue and told the parties to propose a solution

for how to refer to Nora East:

                   Maybe you and [defense counsel] could talk about that. So
            I'm going to reserve on that, whether this is going to be referred to
            as administrative segregation or a segregated unit. Clearly, the
            layout, the rules, that's all important. The label can be problematic.
            So if the two of you can't work something out, I'm happy to have
            you bring it back to me and I'll decide.1111
Neither party raised the issue again for a specific ruling.

            Officer John Hurt, a witness for the State, made several comments

prompting Graham to move for a mistrial. When describing Nora East, Hurt
stated that it "was primarily a disciplinary unit."12          Graham did not object.
Moments later, Hurt made a similar comment: "Nora East it—like I said, it was a

disciplinary or. . . ."13 Again, Graham did not object.




10 2   RP   (Nov. 3, 2014) at 52-53.
11 2   RP   (Nov. 3, 2014) at 56.
12 7   RP   (Nov. 12, 2014) at 10.
13 7   RP   (Nov. 12, 2014) at 11.
No. 73107-6-1/7



        The court on its own called for a recess.             Referring to the earlier

discussion during motions in limine, the court told the State that witnesses should

avoid discussing disciplinary issues and instead use the term "segregated unit":

                  The witness twice said "disciplinary unit," and I thought I was
        pretty clear in the motions in limine, witnesses are not to testify to
        that. I think I said they could use the term "segregated unit," but
        nothing about discipline.[14]

The prosecutor responded that he had discussed that issue with witnesses. He

further noted that any prejudice at that time was minimal because the parties had

already discussed that "Nora East is a unit where inmates are locked up for 23
hours out of every day, and anybody with common experience . . . knows that
that is suggestive of what might be referred to colloquially as 'solitary

confinement.'"15

        Defense counsel told the court that, prior to Hurt's testimony, he sent an e-

mail to every witness reminding them not to testify "about the status of Nora East
or why people are put in Nora East."16 The court reminded the witness to use the
term "segregated unit" rather than "disciplinary unit."17 After Hurt's testimony
continued, he referred to Graham as a "high security inmate": "I actually
transported him, myself and Officer Lang, to the King County Jail . . . where he
was made a[n] ultra security inmate . . . ."18 Graham objected and moved to




14 7   RP   (Nov. 12,   2014) at   12.
15 7   RP   (Nov. 12,   2014) at   12.
16 7   RP   (Nov. 12,   2014) at   14.
17 7   RP   (Nov. 12,   2014) at   13.
18 7   RP   (Nov. 12,   2014) at   41-42.
No. 73107-6-1/8



strike the statement. The court sustained the objection and instructed the jury to

disregard Hurt's comment.

       During a recess before Hurt's cross-examination, Graham moved for a

mistrial based on Hurt's statements:

             Your honor, at this point, despite repeated warning, this
       witness feels compelled to mention or discuss, despite any lack of
       questioning that would elicit this, Mr. Graham's security status, and,
       most recently that he was transferred to the King County Jail for the
       completely irrelevant reason that he was being transferred to an
       ultra security status.
               Your honor, I feel compelled to make a motion for a mistrial
       at this point. This witness has flagrantly violated the court's pretrial
       orders.[19]

The court denied the motion, concluding that Hurt's comments did not deprive

Graham of a fair trial:

               I don't find that—as a result of this comment, that Mr.
       Graham can no longer get a fair trial. It doesn't rise to the level of
       that.
               There's been testimony about solitary confinement. I think
       any reasonable juror would probably infer that after the incident, as
       described by the witness, that Mr. Graham would be going into
       some sort of more secure situation.
              I wjn—i sustain the objection, I struck the comment, I'll offer
       a curative instruction, if one is recommended by defense.1201

Defense never sought a curative instruction.

       Graham argues Hurt's testimony was so prejudicial it deprived him of a fair
trial. He contends the trial court abused its discretion when it declined to grant

his motion for a mistrial.




19 7 RP (Nov. 12, 2014) at 43.
20 7 RP (Nov. 12, 2014) at 45-46.
No. 73107-6-1/9



      We review a trial court's denial of a motion for mistrial for an abuse of

discretion. State v. Mak, 105 Wn.2d 692, 701, 719, 718 P.2d 407 (1986). Atrial

court abuses its discretion only "when no reasonable judge would have reached

the same conclusion." Sofie v. Fibreboard Corp., 112 Wn.2d 636, 667, 771 P.2d

711 (1989). "The trial court should grant a mistrial only when the defendant has
been so prejudiced that nothing short of a new trial can insure that the defendant

will be tried fairly. Only errors affecting the outcome of the trial will be deemed
prejudicial." Mak, 105 Wn.2d at 701. In determining whether a trial irregularity
caused such prejudice as to require a mistrial, we examine (1) its seriousness,

(2) whether it involved cumulative evidence, and (3) whether the trial court
properly instructed the jury to disregard it. State v. Hopson, 113 Wn.2d 273, 284,
778 P.2d 1014 (1989). We conclude the trial court acted within its discretion
when it denied Graham's motion for mistrial.

       First, Hurt's comments did not cause serious prejudice within the context
of the trial.   Although the record shows the court expressed concern that
discussing Graham's administrative segregation would "strongly imply" Graham
exhibited "disciplinary problems," the court never issued a definitive ruling
prohibiting the term "disciplinary unit."21 Instead, the court reserved ruling and
allowed the parties to develop their own solution. When Hurt referred to Nora
East as a "disciplinary unit," he did not clearly violate a ruling from the court.
Indeed, Graham did not object to either of Hurt's comments. Graham objected



21 2 RP (Nov. 3, 2014) at 52-53.
No. 73107-6-1/10



only to Hurt's use of the term "ultra security inmate."22 The court immediately

sustained the objection and instructed the jury to disregard Hurt's comment.

      Second, Hurt's testimony was arguably cumulative.              Even despite the

court's concern that discussion of Graham's custody status would improperly

imply a propensity for violence, both parties introduced evidence of his

confinement.    For example, Graham's defense relied in part on the stresses

induced through solitary confinement:

              [Graham] had been in jail for a long time, he was locked in a
      cell, by himself, 23 hours a day. And in the course of his life in the
      jail, he faced the constant stresses and indignities that come from
      the fact that nothing of his life was something that he could
       personally control.
              [T]he constant stress, struggle, and indignity of his situation
       boiled to the point where he lost control of himself.[23]
       During the trial, Graham solicited testimony about the isolation of Nora
East and the reasons an inmate might be placed there.                In one exchange,

defense counsel specifically asked a corrections officer if inmates might be
placed in Nora East due to disciplinary problems:
       [Defense Counsel]: I'd like to talk a little bit about life in the Nora East unit.
                                 First of all, people might be in that unit, or inmates
                                 might be in that unit, for a number of reasons; is that
                                 right?

       [Sergeant Cabrera]: Yes.

       [Defense Counsel]: Sometimes            they're   there   because     they're    a
                                 disciplinary problem?

       [Sergeant Cabrera]: Yes.'241

22 7 RP (Nov. 12, 2014) at 43.
23 6 RP (Nov. 12, 2014—opening statements) at 15.
24 8 RP (Nov. 13, 2014) at 77 (emphasis added).
                                               10
No. 73107-6-1/11




      When cross-examining Letrondo, defense counsel again stated that

inmates in Nora East exhibit "behavioral problems" and that these problems

could exist before residing in Nora East:

       [Defense Counsel]: Now, it's fair to say that people can be in—a number
                          of people in Nora East have behavior problems, right?

       [Mr. Letrondo]:     Yes.

       [Defense Counsel]: In fact, some of them have problems that have
                          nothing to do with being in Nora East, meaning their
                            mental problems or behavioral problems are from
                            before they were ever sent to Nora East?

       [Mr. Letrondo]:      Iwouldn't know thatJ251
       Following this exchange, the State asked Letrondo on re-direct whether
some inmates had "preexisting problems or issues with violence."26 Graham did
not object. The State then asked Letrondo if any other inmates in Nora East had
attacked him before. Graham objected, but the court ruled Graham's cross-

examination "opened the door" to further evidence about inmates in Nora East.27
Therefore, in the context of other testimony at trial, Hurt's references to Nora
East as a "disciplinary unit" were cumulative with other witness statements. The
record shows that even defense counsel made statements about inmates in Nora

East exhibiting "disciplinary problems" and "behavioral problems."
       Third, the court took steps to mitigate any prejudice. When Graham failed
to object to Hurt's initial comments describing Nora East as a "disciplinary unit,"


2510 RP (Nov. 18, 2014) at 161.
26 10RP(Nov. 18, 2014) at 163.
2710 RP (Nov. 18, 2014) at 163.
                                            11
No. 73107-6-1/12



the court called for a recess on its own and reminded the parties that witnesses

should avoid using this terminology.28     After Graham objected to the "ultra

security inmate" comment, the court sustained the objection and properly

instructed the jury to disregard the comment.29 In response to Graham's motion

for a mistrial, the court offered a curative instruction "if one is recommended by

defense."30 Graham never asked for one.

       Further, we are not convinced Hurt's comments affected the outcome of

the trial. See Mak, 105 Wn.2d at 701 ("Only errors affecting the outcome of the

trial will be deemed prejudicial."). As discussed above, counsel and witnesses

made several statements about Graham's custody status, Nora East, and the

potential disciplinary problems exhibited by some inmates residing there.
Defense counsel made and solicited some of these statements.

       The jury also heard lengthy and vivid evidence of the assault, Letrondo's
injuries, and the injuries to the other officers who responded to restrain Graham.
Graham insists Hurt's comments unfairly depicted Graham as a "bad or violent

character," and that the testimony was "too powerfully tempting to ignore."31 But
the jury acquitted Graham of one of the custodial assault charges, suggesting the
jury was not motivated by improper prejudice. Under these circumstances, it is
unlikely Hurt's comments affected the outcome of the trial. We therefore cannot
say that "no reasonable judge would have reached the same conclusion"


28 7 RP (Nov. 12, 2014) at 11-12.
29 7 RP (Nov. 12, 2014) at 43.
30 7 RP (Nov. 12, 2014) at 46.
31 Br. of Appellant at 15.
                                          12
No. 73107-6-1/13



regarding Graham's motion for mistrial. Sofie, 112 Wn.2d at 667. The trial court

did not abuse its discretion when it denied the motion.

Aggravating Factor of Particular Vulnerability

       Graham argues the State failed to present sufficient evidence to support

the aggravating factor of particular vulnerability or incapability of resistance.

       The jury was instructed that if it found Graham guilty of first degree

assault, it must then decide "[w]hether the defendant knew or should have known

that the victim was particularly vulnerable or incapable of resistance" beyond a
reasonable doubt.32      The court further instructed the jury that "particularly

vulnerable" means the victim "is more vulnerable to the commission of the crime

than the typical victim of Assault in the First Degree" and "the victim's
vulnerability is a substantial factor in the commission of the crime."33 During
closing argument, the State emphasized that Letrondo was particularly
vulnerable to the assault because he became unconscious:

              Was the victim in the current offense particularly vulnerable
       or incapable of resistance?
             When you find the defendant guilty of assault in the first
       degree, I ask that you answer this question "Yes."
                What we are referring to is about when Officer Letrondo was
       on the ground, unconscious. The defendant knew that, yet he
       continued to stomp on him. You heard from Officer Williamson how
       the victim's body was bouncing off the ground when he was being
        stomped on. That clearly is particularly vulnerable.1341




32 Clerk's Papers (CP) at 199, 201.
33 CP at 202.
3411 RP(Nov. 24, 2014) at 119.
                                            13
No. 73107-6-1/14



      A court may impose an exceptional sentence based on the aggravating

factor of vulnerability if the jury concludes beyond a reasonable doubt that "[t]he

defendant knew or should have known that the victim of the current offense was

particularly vulnerable or incapable of resistance." RCW 9.94A.535(3)(b). The

victim's vulnerability must have been a substantial factor in the commission of the

crime. State v. Suleiman, 158 Wn. App. 280, 291-92, 143 P.3d 795 (2006). We

review a court's decision to impose an exceptional sentence based on an

aggravating factor for sufficient evidence. State v. Gordon, 172 Wn.2d 671, 680,
260 P.3d 884 (2011). "The test for determining the 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 guilt beyond a reasonable doubt." State v.

Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992).

       Although this aggravating factor typically involves "victims who are
particularly vulnerable before the attack began," we have recognized that an
assault victim is particularly vulnerable when rendered unconscious by the initial
attack and then further assaulted. State v. Ogden, 102 Wn. App. 357, 367, 7
P.3d 839 (2000); see ajso State v. Baird, 83 Wn. App. 477, 922 P.2d 157 (1996).
In Baird, the defendant beat his wife unconscious and then surgically disfigured
her face.   Baird, 83 Wn. App. at 479. The defendant argued the particular
vulnerability aggravating factor did not apply, arguing that "it would set a
'dangerous precedent' if this court concluded the victim was particularly
vulnerable because of the assault itself." Baird, 83 Wn. App. at 489. The court

 rejected this argument, concluding that "a victim beaten unconscious and then
                                          14
No. 73107-6-1/15



further assaulted is surely no less vulnerable than a sleeping victim." Baird, 83

Wn. App. at 489.

      Similarly, in Ogden, the defendant hit the victim several times on the head

and then continued the assault after the victim was unconscious.       Ogden, 102

Wn. App. at 360. The defendant argued the particularly vulnerable aggravating

factor did not apply because the victim was not unconscious before the

defendant hit him. Ogden, 102 Wn. App. at 366. But the court emphatically

rejected this argument and reaffirmed the principle in Baird:

       [W]e soundly reject the premise that an assailant who beats a
       victim into unconsciousness thereby rendering him or her totally
       helpless, and then takes advantage of that helplessness to inflict
       gratuitous additional injuries is not subject to a finding by the
       sentencing court that an exceptional sentence upward or a manifest
       injustice disposition is warranted based on vulnerability of the
       victim.

Ogden, 102 Wn. App. at 369. The court further explained that the State was not
required to show "evidence of a temporal break" between the initial assault and
the harm incurred following the victim's unconsciousness. Ogden, 102 Wn. App.

at 368.

          The record here shows the State provided sufficient evidence to prove

Letrondo was particularly vulnerable due to his inability to resist Graham's attack.
Multiple witnesses testified that Graham's attack rendered Letrondo unconscious
and that Graham continued to attack Letrondo. Wells, who was only few feet

away, testified that after Graham's second punch, Letrondo fell backwards, hit a
wall, and then lay motionless on the ground. He testified that Graham rushed
over to Letrondo and began stomping and jumping on Letrondo's face, neck, and

                                          15
No. 73107-6-1/16



chest. Viewing this testimony in the light most favorable to the State, a rational
trier of fact could have concluded that Letrondo was particularly vulnerable due to

unconsciousness and that this vulnerability was a substantial factor in the

commission of the crime. See Gordon. 172 Wn.2d at 680.

       Graham does not dispute that Letrondo was rendered unconscious or that

Graham continued to attack Letrondo after that point. Instead, Graham argues

that the rule articulated in Baird and Ogden does not apply to this case. We

disagree.

       Graham primarily argues that Baird and Ogden are inapplicable because
those cases were decided before Blakelv v. Washington, 542 U.S. 296, 124 S.
Ct. 2531, 159 L. Ed. 2d 403 (2004). In Blakelv. the court held that a jury—not a
judge—must find evidence to prove an aggravating factor sufficient beyond a
reasonable doubt before the court imposes an exceptional sentence. 542 U.S. at
313-14.     Therefore, Graham argues Baird and Ogden are distinguishable
because those cases relied on a sentencing procedure the Blakely court
determined is unconstitutional. But although Blakelv invalidated the procedure
for imposing an exceptional sentence, nothing in Blakelv casts doubt on the
substantive rule in Baird and Ogden.            An aggravating factor of particular
 vulnerability may still be appropriate when a defendant renders the victim
 unconscious and continues to inflict gratuitous harm. Blakelv simply requires that
 a jury find sufficient evidence for the aggravating factor beyond a reasonable
 doubt before the court can use the factor to justify an exceptional sentence. In
 other words, Blakelv did not change what constitutes an aggravating factor. It
                                           16
No. 73107-6-1/17



only clarified who the factfinder must be and the burden of proof the State must

meet before an aggravating factor affects a defendant's sentence.

          Graham further attempts to distinguish Baird and Ogden on their facts.

We are unpersuaded. Like this case, both Baird and Ogden involved defendants

who rendered a victim unconscious before inflicting additional harm on that

victim.    The relative severity of harm inflicted on the different victims is not

relevant to whether sufficient evident supports the aggravating factor in this case.

Nor is it relevant that the defendant in Ogden was charged with murder and

Graham was not. Particular vulnerability can be an aggravating factor when the

victim is rendered vulnerable "because of injuries . . . sustained during the

perpetrator's attack." Ogden. 102 Wn. App. at 367.
          Graham also argues that his case differs from Baird and Ogden because it
involved a "single violent attack."35 But the court rejected a similar argument in
Oqden. See Ogden, 102 Wn. App. at 368 (there need not be a "temporal break"
between initial attack and subsequent harm). Here, Baird and Ogden support the

application of an aggravating factor for particular vulnerability. See Oqden, 102
Wn. App. at 368 ("'a victim beaten unconscious and then further assaulted is
surely no less vulnerable than a sleeping victim'") (quoting Baird, 83 Wn. App. at
489). The record shows that sufficient evidence supports the jury's conclusion
that the State proved the aggravating factor beyond a reasonable doubt.




35 Br. of Appellant at 33.
                                           17
No. 73107-6-1/18



Vagueness

       Finally, Graham argues that the aggravating factor for particular

vulnerability is unconstitutionally vague.

       A statute is unconstitutionally vague under the due process clause of the

Fourteenth Amendment if (1) it 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 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 prohibit or required conduct. State v. Baldwin, 150

Wn.2d 448, 458, 78 P.3d 1005 (2003).              In Baldwin, the court explained that

sentencing aggravators are not subject to a vagueness challenge because they
do not prohibit or require conduct:

              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 .... 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; see also State v. Jacobson. 92 Wn. App. 958, 966,

965 P.2d 1140 (1998) (Aggravating factors "'are simply not susceptible to a
vagueness attack.'") (quoting United States v. Wivell. 893 F.2d 156, 159 (8th Cir.
1990)). Therefore, for the reasons articulated in Baldwin. Graham's vagueness

challenge fails.

                                             18
No. 73107-6-1/19



          We find Graham's arguments to the contrary unpersuasive.            Graham

contends that, post-BJakeJy, there is a "now-irrefutable proposition that

aggravating circumstances operate as elements of a higher offense."36 But the
Washington Supreme Court has somewhat recently stated that "an aggravating
factor is not the functional equivalent of an essential element." State v. Siers,

174 Wn.2d 269, 271, 274 P.3d 358 (2012V. see also Gordon, 172 Wn.2d at 687-

79 (The particular vulnerability aggravating factor is not the functional equivalent
of an element of the offense.).

          Graham also relies on death penalty cases, arguing that "a sentencing

provision is unconstitutionally vague ... if it 'fails to adequately inform juries what
they must find to impose the death penalty and as a result leaves them and
appellate courts with the kind of open-ended discretion which was held invalid . .
  .'"37     But these cases do not apply here because sentencing courts are

permitted more discretion in noncapital cases. See Baldwin, 150 Wn.2d at 460
("in noncapital cases a defendant does not have a constitutional right to
sentencing guidelines").

          Baldwin controls our analysis here. See State v. Gore, 101 Wn.2d 481,
487, 681 P.2d 227 (1984) (this court is obliged to follow directly controlling
authority of the Washington Supreme Court).             Under that case, Graham's
vagueness challenge to the particularly vulnerable aggravating factor fails.



 36 Br. of Appellant at 38.
 37 Br. of Appellant at 38 (quoting Mavnard v. Cartwriqht. 486 U.S. 356, 361, 108 S. Ct.
 1853, 100 L Ed. 2d 372 (1988)).
                                            19
No. 73107-6-1/20



Graham does not address Baldwin. Therefore, we reject Graham's vagueness

challenge.

      We affirm the judgment and sentence.




                                             K.c^ty , fl^J

WE CONCUR:




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