                                                                                                   FILED
                                                                                              COURT .OF` APPEALS
                                                                                                 DIVISION la


       IN THE COURT OF APPEALS OF THE STATE                                                dksiMi
                                                                                             STATE OF WASHINGTON
                                                         DIVISION II
                                                                                             BY
                                                                                                        6E UT
 STATE OF WASHINGTON,                                                                      No. 44287 -6 -II


                                              Respondent,                        UNPUBLISHED OPINION


             v.




 RYAN WESTBROOK,

                                              Appellant.


             BJORGEN, A.C. J. —          A jury found Ryan Westbrook guilty of one count of second degree

theft   and       three   counts   of   first degree trafficking in        stolen   property.      Westbrook received an


exceptional sentence based on the jury' s finding that he abused a position of trust to commit the

crime. Westbrook appeals his convictions on the three counts of first degree trafficking in stolen

property, arguing that the jury instructions were an impermissible comment on the evidence and

that    he   received      ineffective    assistance      of counsel.      He also appeals his exceptional sentence,


arguing that the special verdict form failed to specify to which charge the jury applied the

aggravating         circumstance.       We hold that the jury instructions did not impermissibly comment on

the evidence and that Westbrook did not receive ineffective assistance of counsel, but that the

special      verdict      form   and    the   exceptional     sentence    were   erroneous.       Consequently, we affirm

Westbrook'         s convictions,       but   reverse   his   sentence.    On remand, the resentencing court has the

authority to empanel a jury to properly determine the factual basis for the aggravating factors.
                                                                  FACTS


             In March 2011, Westbrook and his girlfriend, Desha Vaughn, were homeless. Joe and Lora

Hade     offered     Westbrook      and   Vaughn        a place   to stay in their home,   and   they   stayed with   the Hades
No. 44287 -6 -II




for three to four   weeks.    After Westbrook and Vaughn left the Hades' home, the Hades noticed


numerous items missing, including copper scrap from their garage and Lora' s jewelry. Later, the

police learned that Westbrook pawned some of the missing jewelry. The police also learned that

Westbrook sold the copper scrap metal.

       The State charged Westbrook with one count of second degree theft and three counts of

first degree trafficking in   stolen   property.   Each charge alleged that Westbrook used his position


of trust or confidence to facilitate the crime as an aggravating circumstance. The trial court gave

the following to- convict instruction on each count of first degree trafficking in stolen property:

                To convict the defendant of the crime of trafficking in stolen property in the
        first degree,   as charged   in [ Count ...],   each of the following elements of the crime
        must be proved beyond a reasonable doubt:
                  1) That on or about and/ or between ... the defendant knowingly trafficked
        in stolen  property ( to- wit:...); and
                   2) That the acts occurred in the State of Washington.


                If you find from the evidence that each of these elements has been proved
        beyond a reasonable doubt, thenit will be your duty to return a verdict of guilty.
               On the other hand, if, after weighing all the evidence, you have a reasonable
        doubt as to any one of the elements, then it will be your duty to return a verdict of
        not guilty.


Clerk' s Papers ( CP) at 101 -03. The " to -wit" parenthetical in each of the instructions for trafficking

in stolen property listed the property involved. The jury found Westbrook guilty of all four counts.

        The jury also answered " yes" to the special verdict form which read:

        We, the jury, having found the defendant guilty of either Theft in the Second
        Degree,     and /or   Trafficking    in Stolen    Property in   the   First [ D] egree,   and/ or


        Trafficking in Stolen Property in the Second Degree, return a special verdict by
        answering the following question submitted by the court as follows;

        Question: Did the Defendant use his position of trust or confidence to facilitate the
        commission of the crime?




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No. 44287 -6 -I1




CP at 71.


           Based on the special verdict form, the trial court imposed an exceptional sentence above


the standard range on all four counts. Westbrook appeals.


                                                           ANALYSIS


A.         Comment on the Evidence


           Westbrook argues that his convictions on the three counts of first degree trafficking in

stolen property must be reversed because the to- convict instructions were impermissible comments

on   the   evidence.   As an initial matter, Westbrook did not object to the to- convict instructions at

the trial court.   Under RAP 2. 5(           a),     an issue not raised at the trial court is generally waived on

appeal.     However,   under    RAP 2. 5(      a)(   3), a party may raise a manifest error affecting a constitutional


right for the first time on appeal. An allegation that a jury instruction constitutes an impermissible

comment on       the   evidence   is   a manifest error         affecting   a constitutional right.   State v. Levy, 156

Wn.2d 709, 719 -20, 132 P. 3d 1076 ( 2006).                  Therefore, Westbrook may raise his challenge to the

first degree trafficking in stolen property to- convict jury instructions for the first time on appeal.

           We   review   jury   instructions de         novo.   State v. Pirtle, 127 Wn.2d 628, 656, 904 P. 2d 245


 1995). Article IV,      section   16   of   the Washington Constitution          prohibits a   judge from "` conveying


to the jury his or her personal attitudes toward the merits of the case' or instructing the jury that

 matters of fact   have been      established as a matter of         law. "'   Levy, 156 Wn.2d at 721 ( quoting State

v.   Becker, 132 Wn.2d 54, 64, 935 P. 2d 1321 ( 1997)).                 But an improper comment on the evidence


is   not per se prejudicial error       that   requires automatic reversal.         Levy,   156 Wn.2d   at   725. Instead,
No. 44287 -6 -II




an   improper     comment       on      the   evidence    is   presumed     to    be   prejudicial "     unless    the   record



affirmatively    shows   that   no prejudice could        have    resulted."     Levy, 156 Wn.2d at 725.

        Here, even if we assume that the jury instructions were erroneous, the record shows that

no prejudice could     have     resulted      from the   error.   If the jury instructions impermissibly comment

on the evidence, they do so by impermissibly stating that the property referenced in the instruction

is stolen property. However, as the State correctly points out, it had to prove that Westbrook knew

the property     was stolen.     State v. Killingsworth, 166 Wn. App. 283, 289, 269 P. 3d 1064 ( 2012).

There was little dispute as to whether the property referenced in the instructions was stolen.

Instead, the dispute     was whether          Westbrook knew the property              was stolen when       he   sold   it. The


defense' s theory of the crime was that Vaughn stole the property from the Hades and then asked

Westbrook to sell it for her. During closing argument, Westbrook actually referred to the property

as stolen.



         Thus, the   status of     the property     as stolen was not          in dispute.    The central fact in dispute


was whether Westbrook knew it was stolen. Even if we assume the jury instructions conveyed to

the jury that the property was stolen, they did not convey to the jury that Westbrook knew the

property was stolen. For these reasons, the instruction did not violate the rule that ajury instruction

that removes a disputed issue of fact from the jury' s consideration is improper and prejudicial.

Becker, 132 Wn.2d        at   64 -65.    Further, the jury instructions did not impede Westbrook' s ability to

argue that he did not know the property he sold was stolen. State v. Bennett, 161 Wn.2d 303, 307,

 165 P. 3d 1241 ( 2007) (       jury instructions are proper when they inform the jury of the applicable

law,   are not                   and allow each      party to      argue   its theory    of   the   case).   Here, the    record
                 misleading,
No. 44287 -6 -II




demonstrates that any comment on the evidence contained in the to- convict instructions could not

have resulted in prejudice.


B.       Ineffective Assistance of Counsel


         Westbrook argues that he received ineffective assistance of counsel because his defense


attorney proposed a to- convict instruction similar to the instruction given by the trial court, which

he argues impermissibly commented on the evidence. Westbrook' s primary argument is based on

the assumption that we will decline to address the validity of the jury instruction because of invited

error.       Because we address the merits of Westbrook' s claim regarding the to- convict jury

instruction, we do not address Westbrook' s claim that he received ineffective assistance of counsel

because his counsel invited error.


         To the extent that Westbrook alleges that his counsel was ineffective for proposing the

instruction,    regardless of whether we             apply the invited     error   doctrine, his   claim   lacks   merit.   To


prevail on an ineffective assistance of counsel claim the defendant must show that counsel' s

performance was both deficient and prejudicial. Strickland v. Washington, 466 U.S.. 668, 687, 104

S. Ct. 2052, 80. L. Ed. 2d 674 ( 1984).                Failure to establish either prong is fatal to an ineffective

assistance     of counsel      claim.       Strickland, 466 U. S.     at   700.    Even if we assume that counsel' s


performance was deficient, Westbrook cannot show prejudice. As explained above, the instruction

at   issue   given   by   the trial   court   did   not prejudice   Westbrook.      Therefore, any similarity between

that instruction and the              one   Westbrook    proposed    also   did not    prejudice    him.     Consequently,

Westbrook has not met his burden to show he was prejudiced by the instruction his counsel

proposed, and his ineffective assistance of counsel claim must fail.




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No. 44287 -6 -II




C.        Special Verdict Form and Exceptional Sentence


          Westbrook also argues that the trial court improperly imposed exceptional sentences above

the standard range on all four counts because the special verdict form does not specify which

charges the jury found the aggravating circumstance applied to. The State correctly concedes that

the special verdict form and the resulting exceptional sentence are erroneous.

          Under RCW 9. 94A.535, the trial court may impose a sentence outside the standard range

for   an offense   if there   are substantial and   compelling    reasons.    RCW 9. 94A. 535( 3) sets out the


exclusive list of aggravating factors that can support an exceptional sentence above the standard

range.    The aggravating factors in RCW 9. 94A. 535( 3)             must    be found   by   a   jury.   Under this


sentencing scheme, a trial court may not impose an exceptional sentence .on a charge unless a jury

has found an aggravating circumstance applies to that particular charge.

          Based on the special verdict form provided by the jury it is impossible to determine which

charges the jury found the aggravating factor applied to. Therefore, the trial court did not have the

authority to impose an exceptional sentence on any of the charges, and the State' s concession is
proper.



          However, the    parties    disagree   about   the   appropriate   remedy.   Westbrook asks that we


remand to the trial court to resentence him within the standard range. The State asks us to remand

to the trial court to   allow   the State to retry the aggravating factor.      The State is correct. Remand


for the State to properly prove the aggravating factors is the correct remedy. State v. Reyes -Brooks,

 165 Wn.    App.   193, 206, 267 P. 3d 465 ( 2011),     on remand, 171 Wn. App. 1028, 2012 WL 5477830

 Nov. 13, 2012).      Accordingly, at resentencing, the trial court may empanel a jury to consider the




                                                          6
No. 44287 -6 -II




factual basis for the aggravating factors as to each charge. Reyes -Brooks, 165 Wn. App. at 206;

see also RCW 9. 94A. 537( 2).


                                                 CONCLUSION


        Any comment on the evidence in the to- convict instructions for first degree trafficking in

stolen property could not have prejudiced Westbrook, and he did not receive ineffective assistance

of counsel. Therefore, we affirm his convictions. However, the State properly concedes that the

special verdict     form   and   the   exceptional sentence above   the   standard range were   improper. We


accept the State' s concession and remand to the trial court for resentencing consistent with this

opinion.




        A majority of the panel having determined that this opinion will not be printed in the
Washington Appellate Reports, but will be filed for public record in accordance with RCW 2. 06.040,

it is so ordered.




                                                                                  r4iJ_


                                                                     N, A.C. J.

 We concur:




  LEE, J.
