FILED
JAN 27, 2015
In the Office of the Clerk of Court
WA State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
STATE OF WASHINGTON, ) ) No. 31699-8-111 Respondent, ) ) v. ) ) JASON MATTHEW GILES, ) UNPUBLISHED OPINION ) Appellant. )
FEARING, J. - During the course of consecutive shopliftings, Jason Giles
threatened the use and used a knife to escape capture. The State of Washington charged
Giles with first degree robbery for the first theft, and second degree robbery, first degree
assault, and third degree assault for the second theft. Through bifurcated proceedings,
juries found Jason Giles guilty as charged. The trial court sentenced him to prison for life
without parole under the persistent offender statute.
On appeal, Jason Giles contends: (l) the trial court violated the right to a public
trial when it allowed for-cause challenges at sidebar and peremptory challenges by
written notes, (2) insufficient evidence supports many of his convictions, (3) the trial
court's instructions impermissibly lowered the State's burden of proof through use of the No. 31699-8-111 State v. Giles
phrase "abiding belief in the truth of the charge," (4) his sentence under Washington's
Persistent Offender Accountability Act (POAA) to life without the possibility of parole
(a) constitutes unconstitutionally cruel punishment, (b) violates his right to a jury because
the court found his prior strikes by only a preponderance of the evidence, and (c) violates
his right to equal protection because the classification of a persistent offender finding as a
"sentencing factor" unconstitutionally lowers the burden to less than beyond a reasonable
doubt, and (5) the trial court imposed discretionary legal financial obligations (LFOs)
without any evidence of his present or future ability to pay those costs. We affirm Jason
Giles' convictions and sentence.
FACTS
Jason Giles stole a pair of shoes from a Champs athletics store on December 6,
2011, and attempted to steal a security system and other merchandise from a Costco store
the next day. Juries heard the following evidence.
On the evening of December 6,2011, Jason Giles drove his girlfriend's truck to
NorthTown mall in Spokane. As he approached the mall's parking garage, the vehicle
ran out of gas. Champs Sports store employee Christian Riding helped Giles push the
truck into the parking garage. Giles asked Riding for gas money. Riding gave the
change laying in his car to Giles. Riding went to work at Champs in the mall, but no
good deed goes unpunished.
Jason Giles later entered the Champs store and tried on shoes. Riding recognized
No. 3 I699-8-II1 State v. Giles
Giles from the parking garage. Based on Giles' request for gas money, Riding surmised
that Giles might lack funds needed to purchase shoes. Riding told his coworkers to
observe Giles.
After 25 minutes of trying on shoes, Jason Giles stated his intent to purchase the
shoes on his feet. Giles, while wearing the unpurchased shoes, proceeded toward the
front of the store. Christian Riding and Andrew Hite, another Champs employee, waited
at the store's exit. Giles continued past the cash register to the store's exit. Riding asked
Giles whether he intended to pay for the shoes, after which Giles brushed past Riding and
Hite into the mall.
Andrew Hite chased Jason Giles through the mall, while Christian Riding phoned
mall security. Riding then joined the chase. After Giles cornered a pole, Hite ran into the
pole and fell to the ground. A Sears store locked its gate, blocking Giles' escape route.
Giles retreated in search of another exit, while Riding continued to chase Giles out of
Hite's line of sight.
Jason Giles stopped, pulled a knife from his pants pocket, and pointed the four to
five inch blade at Christian Riding. Giles told Riding, "Come any closer and I'll gut
you." Report of Proceedings (RP) at 142. Riding believed that ifhe continued to pursue
Giles, Giles would probably stab him. Riding stopped the chase and Giles fled the mall.
Christian Riding testified at trial:
Q. Were you concerned when he did that?
No. 3 1699-8-II1 State v. Giles
A. Yeah. Q. Why is that? A. I believe anybody would be, having a knife-a knife pulled on you.
RP at 130.
Andrew Hite described Christian Riding as looking "panicked" following Giles'
threat. RP at 150. Champs never recovered the $84.99 shoes taken by Jason Giles.
The next day, Jason Giles and an unidentified female companion pushed a cart
through a Spokane Costco. Costco loss prevention specialist Troy Humphrey saw Giles
place a security system in the cart. Because that security system had been the target of
recent thefts, Humphrey continued to observe Giles and the female. Humphrey espied
Giles cover the security system with pillows and then remove the system from its
packaging. Giles hid the system's various components in his jacket and other clothing.
He similarly shrouded a video game and a pair of gloves in his clothes. Jason Giles and
his female colleague proceeded through the registers without purchasing the veiled items.
Troy Humphrey phoned Richard Wolfe, a fellow Costco employee positioned near
the store's exit. Wolfe stopped Jason Giles as Giles crossed the store's exit. Wolfe said,
"I need to talk to you." RP at 499. Giles attempted to bolt. Wolfe tried to grab Giles by
the coat, but Giles wildly swung his arms, knocking Wolfe to the ground. Wolfe reached
out and grabbed Giles by the ankles. Troy Humphrey approached the fracas and Giles
punched Humphrey in the face. Humphrey and Wolfe succeeded in tackling Giles to the
No. 31699-8-II1 State v. Giles
ground, as Giles wriggled out of his jacket. With the weight of Humphrey and Wolfe on
top of him, Giles could not breathe. So Giles bit Richard Wolfe hard enough to leave
teeth marks through Wolfe's coat. Troy Humphrey asked a third Costco employee,
Virgil Wear, to join the fray.
Troy Humphrey testified at trial: "As we struggled with Mr. Giles, I asked Mr.
Wear to remove the handcuffs from my back area and place them on Mr. Giles as we
gained control of his arms." RP at 472. "As we were able to get Mr. Giles' arms out
from underneath him, as I pulled his right hand out from underneath him, he actually
produced a lock-blade knife." RP at 472. The blade was open. Humphrey continued:
Q. Do you recall hearing anything about the knife? A. I do. Q. And what was that? A. Urn, actually when I saw the knife, I exclaimed there was knife. And I heard other people saying "knife" as well. Q. Okay. And what did you do in response to that? A. I immediately just grabbed his right wrist and pinned it down to the concrete and instructed him to let go of the weapon.
A. Urn, as Mr. Giles produced the weapon and after repeated commands to release the weapon, Mr. Giles was uncooperative and attempting to---he-as-as the struggle ensued, he was able to get his hand free a number of times and move the weapon about. And in an effort to remove the weapon from him, I struck him, I think twice, on the right side of the face. And eventually he let go of the weapon. The weapon was removed from the area by a third party.
RP at 473-75.
Jason Giles struck Virgil Wear in the knee with the knife. Wear testified:
No. 31699-8-111 State v. Giles
Q. Okay. And at the time that you were hit, did you see the knife coming at you? A. Oh, yeah. Yeah, it was pretty scary, because 1 thought it took my knee out. But it actually-he, the way he came across the ground with it, it slid up under my kneecap. And it-Just the handle had taken me pretty good.
RP at 518-19.
Costco customer Thomas Walters also saw Jason Giles open and swing the knife.
Walters testified at trial:
When 1 walked up with my friend Leonard, there was a commotion and a crowd around and a lot of shouting. And we walked up to see what was going on. And there was a few-seemed like a couple, or a few men on top of another man. And the man was telling them to get off. And they were telling him to relax and put his arms behind his back, to-to stop fighting and struggling and that they would. And that went on for a bit. And after, he kept fighting and struggling and reached in his pocket and pulled out a knife and opened it and tried to swing at one of the guys who was trying to subdue him. And when he hit the guy with the butt of the knife and the-the man who was hit caught his hand and hit the knife out of his hand. And it slid. 1 got close and-and asked if they needed help or what was going on and-and when the knife slid out of his hand towards me. So 1 picked it up and closed it and put it in my pocket so it wouldn't be a part of the issue anymore. And after that, he seemed to give up, like it was his last hope. Urn, and they were able to get his hands behind his back and cuff him.
RP at 558. Thomas Walters added:
Q. And in your estimation, based on your memory, was there any possibility that it was opened accidentally? A. Urn, 1-1-1 mean, that's always a possibility. But 1 don't think it's likely, because he was trying to swing it at someone and hit someone with it to get away.
RP at 560.
Jason Giles hit, but did not cut, Virgil Wear in the knee with the knife. The three
Costco employees restrained, cuffed, and escorted Jason Giles to an office, where they
awaited the arrival of police.
Jason Giles testified at trial in his own defense. Giles admitted to shoplifting, but
denied pulling out a knife or punching Troy Humphrey at the Costco store.
Those involved in the Costco scuffle sustained mild to moderate injuries, all of
which healed. Jason Giles sustained a cut on his forehead. Troy Humphrey sustained a
small bruise, but declined any medical attention. Richard Wolfe bore bite marks on his
forearm, which healed. Virgil Wear iced his knee, but did not require medical attention.
Costco recovered all the merchandise Jason Giles attempted to steal. The goods
carried a value of between $264.97 and $288.89.
PROCEDURE
On December 12, 2011, the State of Washington charged Jason Giles with five
counts. For the Champs incident, the State charged Giles with first degree robbery
against Christian Riding under the armed with a deadly weapon alternative for that crime.
For the Costco incident, the State charged Giles with first degree robbery against Troy
Humphrey under the armed with a deadly weapon alternative, first degree assault against
Virgil Wear with a deadly weapon other than a firearm, and third degree assault against
Richard Wolfe with a deadly weapon other than a firearm. The State also charged Giles
with possession of a controlled substance.
No. 31699-8-III State v. Giles
On December 13,2011, the State filed a most serious offense notice, which
informed Jason Giles that he may be sentenced as a persistent offender to life without the
possibility of parole. The trial court bifurcated the proceedings such that the Champs
charge was tried separately from the Costco charges.
On December 10 and 11,2012, Jason Giles underwent trial for first degree
robbery of a pair of shoes at Champs. During jury selection, the trial court heard for-
cause challenges in a bench conference held outside the presence of the jury. The trial
court entertained peremptory challenges silently by paper. Neither party objected to this
process for preemptory challenges. Each challenge became part of the record.
During the Champs trial, the trial court instructed the jury on the State's burden of
proof and the elements of first degree robbery. Instruction 3 set forth the State's burden:
The defendant has entered a plea of not guilty. That plea puts in issue every element of the each crime charged. The State is the plaintiff and has the burden of proving each element of the crime beyond a reasonable doubt. The defendant has no burden of proving that a reasonable doubt exists as to these elements. A defendant is presumed innocent. This presumption continues throughout the entire trial unless during your deliberations you find it has been overcome by the evidence beyond a reasonable doubt. A reasonable doubt is one for which a reason exists and may arise from the evidence or lack of evidence. It is such a doubt as would exist in the mind of a reasonable person after fully, fairly, and carefully considering all of the evidence or lack of evidence. If, from such consideration, you have an abiding beliefin the truth ofthe charge, you are satisfied beyond a reasonable doubt.
Clerk's Papers (CP) at 24 (emphasis added); see 11 WASHINGTON PRACTICE:
WASHINGTON PATTERN JURY INSTRUCTIONS § 4.01 (3d ed. 2008) (WPIC). For first
degree robbery, the trial court instructed the jury:
A person commits the crime of robbery when he or she unlawfully and with intent to commit theft thereof takes personal property from the person or in the presence of another against that person's will by the use or threatened use of immediate force, violence, or fear of injury to that person or to that person's property or to the person or property of anyone. A threat to use immediate force or violence may be either expressed or implied. The force or fear must be used to obtain or retain possession of the property or to prevent or overcome resistance to the taking, in either of which case the degree of force is immaterial.
A person commits the crime of robbery in the first degree when in the commission of a robbery or in immediate flight therefrom he or she is armed with a deadly weapon.
To convict the defendant of the crime of robbery in the first degree, each of the following elements of the crime must be proved beyond a reasonable doubt: (1) That on or about December 6, 2011, the defendant unlawfully took personal property from the person or in the presence of another; (2) That the defendant intended to commit theft of the property; (3) That the taking was against the person's will by the defendant's use or threatened use of immediate force, violence or fear of injury to that person or to the person or property of another; (4) That force or fear was used by the defendant to obtain or retain possession of the property or to prevent or overcome resistance to the taking; (5) That in the commission of these acts or in immediate flight therefrom the defendant was armed with a deadly weapon; and (6) That any of these acts occurred in the State of Washington.
CP at 26-28 (emphasis added). The court also instructed the jury on the lesser alternative
crimes of second degree robbery and third degree theft.
The jury found Jason Giles guilty as charged of first degree robbery. The jury
further found by special verdict that Giles was armed with a deadly weapon when he
committed that crime.
On April 15, 2013, Jason Giles proceeded to trial on charges II through IV,
charges incident to the Costco shoplifting. Before trial, the State dismissed count V, the
possession of a controlled substance charge. Jury selection and challenges to venire
persons proceeded in the same manner as it did in the earlier trial. After resting its case,
the State moved to amend count II from first degree robbery to second degree robbery.
The trial court granted the motion.
At the close of the second trial, the court provided the jury the same "abiding
belief in the truth of the charge" instruction given in the first trial. For second degree
robbery, the trial court instructed the jury:
A person commits the crime of robbery in the second degree as charged in Count [II] when he or she commits robbery.
A person commits the crime of robbery when he or she unlawfully and with intent to commit theft thereof takes personal property from the person or in the presence of another against that person's will by the use or threatened use of immediate force, violence, or fear of injury to that person or to that person's property or to the person or property of anyone. A threat to use immediate force or violence may be either expressed or implied. The force or fear must be used to obtain or retain possession of the property or to prevent or overcome resistance to the taking, in either of which case the degree of force is immaterial.
To convict the defendant of the crime of robbery in the second degree, each of the following elements of the crime must be proved beyond a reasonable doubt: (1) That on or about December 7, 2011, the defendant unlawfully
No. 3 1699-8-III State v. Giles
took personal property from the person, or in the presence, of another Troy Humphrey; (2) That the defendant intended to commit theft of the property; (3) That the taking was against that person's will by the defendant's use or threatened use of immediate force, violence, or fear of injury to that person or to the person or property of another; (4) That force or fear was used by the defendant to obtain or retain possession of the property or to prevent or overcome resistance to the taking; and (5) That any of these acts occurred in the State of Washington.
CP at 82-84 (emphasis added). For count II, the court also instructed the jury on the
lesser alternative crime of third degree theft.
For first degree assault, the trial court instructed the second jury:
A person commits the crime of assault in the first degree as charged in Count [III] when, with intent to inflict great bodily harm, he or she assaults another and inflicts great bodily harm or assaults another with a deadly weapon.
To convict the defendant of the crime of assault in the first degree, each of the following four elements of the crime must be proved beyond a reasonable doubt: (1) That on or about the 7th day of December, 2011, the defendant assaulted Virgil Wear; (2) That the defendant acted with intent to inflict great bodily harm; (3) That the assault was committed with a deadly weapon; and (4) That the acts occurred in the State of Washington.
An assault is an intentional touching or striking or cutting of another person, with unlawful force, that is harmful or offensive regardless of whether any physical injury is done to the person. A touching or striking or cutting is offensive if the touching or striking or cutting would offend an ordinary person who is not unduly sensitive. An assault is also an act, with unlawful force, done with intent to inflict bodily injury upon another, tending but failing to accomplish it and accompanied with the apparent present ability to inflict the bodily injury if
not prevented. It is not necessary that bodily injury be inflicted. An assault is also an act, with unlawful force, done with the intent to create in another apprehension and fear of bodily injury, and which in fact creates in another a reasonable apprehension and imminent fear of bodily injury even though the actor did not actually intend to inflict bodily injury.
Bodily injury, physical injury, or bodily harm means physical pain or injury, illness, or an impairment of physical condition.
Great bodily harm means bodily injury that creates a probability of death, or that causes significant serious permanent disfigurement, or that causes a significant permanent loss or impairment of the function of any bodily part or organ.
Deadly weapon means any weapon, device, instrument, substance, or article, which under the circumstances in which it is used, attempted to be used, or threatened to be used is readily capable of causing, death or substantial bodily harm.
CP 89-94 (emphasis added). For count III, the court also instructed the jury on the lesser
alternative crime of second degree assault.
The second jury found Jason Giles guilty as charged of second degree robbery,
first degree assault, and third degree assault. By special verdict, the jury also found that
Giles was armed with a deadly weapon when he committed the three crimes.
On May 8, 2013, the trial court sentenced Jason Giles under Washington's
Persistent Offender Accountability Act, a three strikes law. The State provided certified
copies ofjudgments for two prior most serious offenses unrelated to the Champs or
Costco stores charges. Jason Giles' first strike was a 1999 conviction for first degree
robbery, a class A felony. Giles' judgment and sentence for that felony indicated that, in
committing the 1999 robbery or in immediate night therefrom, Jason Giles inflicted
"bodily injury." Giles' second strike was a 2009 conviction for second degree assault, a
class B felony. Giles' judgment and sentence for that assault indicated that he assaulted
"another with a deadly weapon."
Numerous supporters attended the sentencing hearing to speak on Jason Giles'
behalf. The trial court asked that only three speak. Giles' father, Giles' girlfriend of
twelve years, and a family friend spoke. Giles' father described him as a hard worker
who never received the drug treatment he needed. Giles' girlfriend described him as a
loving, hardworking person who helped care for her parents through chronic illness. She
told how Jason Giles turned to drugs after she miscarried a few years earlier. Jason
Giles' family friend told the court that Giles "could be and would be a good, productive
member of society." RP at 644. All three expressed their continued support and love for
Jason Giles.
The trial court expressed its difficulty imposing a life sentence, declaring:
All right. Well, you know, I've heard the word "leniency" used here a couple times. And this is one of those situations where it's very difficult to-you know, it's a very, very difficult sentence for me to give. And I ' want you to understand that. I truly do understand what drugs can do to someone. I truly do. And I see people, thousands of people coming through here who likely wouldn't be here except for that fact. And the pull of the drugs and what they make you do, I understand that completely. The legislature has written the rules, however. And they, I suppose, were ofthe-ofthe mind when they passed the three-strikes law that there are some individuals in society that are too dangerous to remain in society.
13 No. 3 I 699-8-II1 State v. Giles
That doesn't take into account who people really are. And so I want you to understand that I have to give you this sentence. I have to give you the sentence that's required by law. And you've got two prior strike offenses, and with your third, the only option is life in prison without the possibility of parole. And that's what I have to do. As a judge, that's what I sentence you to. As a human being, I have to tell you, you can't give up hope.
RP at 645-66.
The trial court sentenced Jason Giles to a lifetime of incarceration without parole
for first degree robbery, second degree robbery, and first degree assault, and 55 months'
confinement for third degree assault. Among other fees, the court imposed $200 in court
costs and ordered Giles start paying $5 per month toward costs beginning January 2014.
Giles did not object to the imposition of costs, nor did the trial court find that Giles had
the present or future ability to pay those costs. At the time of sentencing, Jason Giles was
34 years old.
LA W AND ANALYSIS
Public Trial Rights
Jason Giles contends the trial court violated his, and the public's, right to a public
trial when it allowed for-cause challenges at sidebar and peremptory challenges by
written notes. This court, Division III, recently approved similar processes in State v.
Love, 176 Wn. App. 911, 309 P.3d 1209 (2013). Division II likewise approved the
process, adopting the reasoning of Love, in State v. Dunn, 180 Wn. App. 570,321 P.3d
No. 3 I 699-8-III State v. Giles
1283 (2014). Finally, the state high court recently approved sidebar conferences. State v.
Smith, _ Wn.2d _,334 P.3d 1049 (2014).
The United State Constitution's Sixth Amendment, applicable to the states through
the Fourteenth Amendment due process clause, directs, in relevant part, that "[i]n all
criminal prosecutions, the accused shall enjoy the right to a speedy and public trial." In
re Oliver, 333 U.S. 257, 273,68 S. Ct. 499, 92 L. Ed. 682 (1948). Washington's
Constitution contains two corollary provisions. Article I, section 10 of the Washington
Constitution reads, "Justice in all cases shall be administered openly and without
unnecessary delay." This provision entitles the public and the press, as representatives of
the public, to openly administer justice. Allied Daily Newspapers of Wash. v. Eikenberry,
121 Wn.2d 205, 209,848 P.2d 1258 (1993); Cohen v. Everett City Council, 85 Wn.2d
385,388,535 P.2d 801 (1975). Article I, section 22 of the Washington Constitution
provides, in pertinent part, "In criminal prosecutions the accused shall have the right ...
to have a speedy public trial." The constitutional principles arise from the guarantee of
open judicial proceedings being a fundamental part of Anglo-American jurisprudence
since the common law. Richmond Newspapers, Inc. v. Commonwealth of Va., 448 U.S.
555,573 n.9, 100 S. Ct. 2814, 65 L. Ed. 2d 973 (1980); Federated Publ'ns, Inc. v. Kurtz,
94 Wn.2d 51, 65, 615 P.2d 440 (1980) (Utter, c.J., concurring and dissenting). America
had a tradition of open criminal trials that preceded drafting of the Bill of Rights. Seattle
Times Co. v. Ishikawa, 97 Wn.2d 30,35-36,640 P.2d 716 (1982).
The threshold determination when addressing an alleged violation of the public
trial right is whether the proceeding at issue even implicates the right. State v. Sublett,
176 Wn.2d 58, 71, 292 P.3d 715 (2012). In Sublett, our Supreme Court adopted a two-
part "experience and logic" test to address this issue: (1) whether the place and process
historically have been open to the press and general public (experience prong); and (2)
whether the public access plays a significant positive role in the functioning of a
particular process in question (logic prong). 176 Wn.2d at 72-73. Both questions must
be answered affirmatively to implicate the public trial right. Sublett, 176 Wn.2d at 73;
Dunn, 180 Wn. App. at 574-75.
In State v. Love, 176 Wn. App. 911 (2013), this division applied the experience
and logic test to conclude that for-cause challenges at sidebar and peremptory challenges
by written notes do not implicate public trial rights. For the experience prong, the Love
court concluded "there is no evidence suggesting that historical practices required these
challenges to be made in public." 176 Wn. App. at 918. We wrote:
Our research discloses one case in which the defense challenged the "use of secret-written-peremptory jury challenges." State v. Thomas, 16 Wn. App. 1, 13,553 P.2d 1357 (1976). Discerning no prejudice to the defendant from the process, and noting that the process was used in several counties, the court rejected the argument for having "no merit." Id. Although suggestive that there may have been an "open" peremptory challenge process in use in other places, Thomas is strong evidence that peremptory challenges can be conducted in private.
Love, 176 Wn. App. at 918. In explaining the practical underpinnings of the historical
practices discussed in State v. Thomas, the Love court noted: "Most parties, in fact, would
probably rather not have a challenge for cause made in the presence of the juror in case
the challenge failed and the juror might serve knowing the identity of a party that had not
wanted him or her to serve." 176 Wn. App. at 918. This passage also goes far in
establishing the logic prong of the public trial test.
The Love court also directly addressed the logic prong. The court noted the
purpose of public trial rights as '" to ensure a fair trial, to remind the officers of the court
of the importance of their functions, to encourage witnesses to corne forward, and to
discourage perjury.'" 176 Wn. App. at 919 (quoting State v. Brightman, 155 Wn.2d 506,
514, 122 P.3d 150 (2005)). The Love court reasoned:
Those purposes simply are not furthered by a party's actions in exercising a peremptory challenge or in seeking a cause challenge of a potential juror. The first action presents no questions of public oversight, and the second typically presents issues of law for the judge to decide. The written record of these actions-the clerk's written juror record and the court reporter's transcription of the cause challenges at sidebar-satisfies the public's interest in the case and assures that all activities were conducted aboveboard, even if not within public earshot. The alternative is to excuse all jurors from the courtroom while legal arguments take place in public concerning a juror's perceived bias. We do not believe the public trial right requires the use of two rooms in order to facilitate the defendant's challenge to some jurors for cause.
176 Wn. App. at 919-20 (footnote omitted).
Jason Giles cites State v. Jones, 175 Wn. App. 87,98-99,303 P.3d 1084 (2013) as
reaching the opposite conclusion when it wrote "alternate jurors [must] be called in the
same manner as deliberating jurors and subject to for-cause and peremptory challenges in
open court." (Emphasis added) (discussing LAWS OF 1917, ch. 37, § 1). Nevertheless,
Jones concerned whether public trial rights extended to the selection of alternate jurors,
not whether for-cause and peremptory challenges must be contemporaneously disclosed
to the public.
In short, the public trial right does not attach to the exercise of challenges during
jury selection. State v. Dunn, 180 Wn. App. at 575. "[E]xperience and logic do not
suggest that exercising peremptory challenges at the clerk's station implicates the public
trial right." Dunn, 180 Wn. App. at 575.
As the clerk's minutes for each of Jason Giles' trials show which jurors were
excused by which means, there is a record of the challenges available to the public. This
record satisfies the reasoning espoused in Love and Dunn. The process did not violate
either the public's or Jason Giles' public trial rights.
Sufficiency of Evidence
Jason Giles contends insufficient evidence supports his convictions for (a) first
degree robbery against Champs employee Christian Riding, (b) second degree robbery
against Costco employee Troy Humphrey; and (c) first degree assault against Costco
employee Virgil Wears. Evidence is sufficient if, after viewing the evidence in the light
most favorable to the State, a rational trier of fact could find each element of the crime
beyond a reasonable doubt. State v. Green, 94 Wn.2d 216,221,616 P.2d 628 (1980); see
also State v. Witherspoon, 180 Wn.2d 875,883,329 P.3d 888 (2014). Both direct and
indirect evidence may support the jury's verdict. State v. Brooks, 45 Wn. App. 824, 826,
727 P.2d 988 (1986). This court draws all reasonable inferences in favor of the State.
Witherspoon, 180 Wn.2d at 883. Only the trier of fact weighs the evidence and judges
the credibility of witnesses. Witherspoon, 180 Wn.2d at 883.
The jury found Jason Giles guilty of first degree robbery for stealing shoes from
Champs in violation ofRCW 9A.56.200(1)(a)(i). The statute provides: "A person is
guilty of robbery in the first degree if ... [i]n the commission of a robbery or of
immediate flight therefrom, he or she ... [i]s armed with a deadly weapon."
The trial court instructed the first jury:
To convict the defendant of the crime of robbery in the first degree, each of the following elements of the crime must be proved beyond a reasonable doubt: (1) That on or about December 6,2011, the defendant unlawfully took personal property from the person or in the presence of another; (2) That the defendant intended to commit theft of the property; (3) That the taking was against the person's will by the defendant's use or threatened use of immediate force, violence or fear of injury to that person or to the person or property of another; (4) That force or fear was used by the defendant to obtain or retain possession of the property or to prevent or overcome resistance to the taking; (5) That in the commission of these acts or in immediate flight therefrom the defendant was armed with a deadly weapon; and (6) That any of these acts occurred in the State of Washington.
CP at 28 (emphasis added); accord WPIC § 37.02, at 667. Giles challenges the
sufficiency of the evidence for elements (3) and (4) in the jury instruction. We reject this
challenge.
Jason Giles argues the State did not meet its burden for element (3) because Giles
only threatened the use of force to retain the shoes, not in taking them. The State did not
object to this instruction. The law of the case doctrine, Giles argues, thus required the
State to prove that Giles threatened force in taking the shoes. See State v. Hickman, 135
Wn.2d 97, 101,954 P.2d 900 (1998). Giles argues that the "taking" was complete prior
to any threat of force.
Jason Giles' argument construes the word "taking" too narrowly. The controlling
statute, RCW 9A.56.l90, reads, in relevant part:
A person commits robbery when he or she unlawfully takes personal property from the person of another or in his or her presence against his or her will by the use or threatened use of immediate force, violence, or fear of injury to that person or his or her property or the person or property of anyone. Such force or fear must be used to obtain or retain possession of the property, or to prevent or overcome resistance to the taking; in either of which cases the degree of force is immaterial.
(Emphasis added.) Force to retain possession is sufficient.
Washington follows a transactional approach to robbery. State v. Johnson, 155
Wn.2d 609,610-11,121 P.3d 91 (2005). The force or threat of force must relate to
obtaining or retaining possession. Johnson, 155 Wn.2d at 611. "Taking" refers to both
aspects of robbery. For first degree robbery under RCW 9A.56.200, one could be "armed
with a deadly weapon" either "[i]n the commission of a robbery or of immediate flight
therefrom." (Emphasis added.) Thus, one may be guilty of robbery ifhe or she obtains
property through threat of force, or retains possession while in immediate flight through
threat of force. In either case, the threat of force is part of the taking. See, e.g.,
Witherspoon, 180 Wn.2d at 884-85.
Jason Giles threatened to eviscerate Christian Riding while pointing a knife at him
during Giles' flight from Champs. A rational jury could conclude that the taking was
against the person's will by the defendant's threatened use of immediate force.
Jason Giles also argues the State did not meet its burden for element (4) of the
charge, because the State did not show that Christian Riding/eared Giles. This argument
relies on an incorrect understanding of the law and belies the facts presented at trial.
To determine whether the defendant used intimidation, we use an objective test.
We consider whether an ordinary person in the victim's position could reasonably infer a
threat of bodily harm from the defendant's acts. Witherspoon, 180 Wn.2d at 884. Thus,
the State did not need to prove that Christian Riding subjectively experienced fear. But
even assuming such a burden, the State met it. Riding testified that Giles' threat
"concerned" him, and Andrew Hite described Riding as "panicked" following the
incident. RP at 130, 151. In a light most favorable to the State, this evidence shows that
Jason Giles caused Christian Riding fear. A reasonable person could infer a threat of
bodily harm from Giles pulling a knife and stating, "Come any closer and I'll gut you."
RP at 142.
The jury found Jason Giles guilty of second degree robbery at Costco in violation
ofRCW 9A.56.21O, which provides: "A person is guilty of robbery in the second degree
ifhe or she commits robbery." We have already cited the definition of "robbery"
contained in RCW 9A.56.190.
The trial court instructed the second jury:
To convict the defendant of the crime of robbery in the second degree, each of the following elements of the crime must be proved beyond a reasonable doubt: (1) That on or about December 7,2011, the defendant unlawfully took personal property from the person, or in the presence, of another Troy Humphrey; (2) That the defendant intended to commit theft of the property; (3) That the taking was against that person's will by the defendant's use or threatened use of immediate force, violence, or fear of injury to that person or to the person or property of another; (4) That force or fear was used by the defendant to obtain or retain possession of the property or to prevent or overcome resistance to the taking; and (5) That any of these acts occurred in the State of Washington.
CP at 84 (emphasis added); accord WPIC § 37.94, at 672.
Jason Giles challenges the sufficiency of the evidence for element (3), again
arguing that any taking was complete prior to any use or threatened use of force. We
have already rejected this argument. A rational jury could conclude that Jason Giles,
while in immediate t1ight, used force in his attempt to retain possession of the goods he
stole from Costco.
The second jury found Jason Giles guilty of first degree assault in violation of
RCW 9A.36.01I(l)(a), which provides: "A person is guilty of assault in the first degree if
he or she, with intent to inflict great bodily harm ... [a]ssaults another with a firearm or
any deadly weapon or by any force or means likely to produce great bodily harm or
death." The trial court instructed the jury:
To convict the defendant of the crime of assault in the first degree, each of the following four elements of the crime must be proved beyond a reasonable doubt: (1) That on or about the 7th day of December, 2011, the defendant assaulted Virgil Wear; (2) That the defendant acted with intent to inflict great bodily harm; (3) That the assault was committed with a deadly weapon; and (4) That the acts occurred in the State of Washington.
Great bodily harm means bodily injury that creates a probability of death, or that causes significant serious permanent disfigurement, or that causes a significant permanent loss or impairment of the function of any bodily part or organ.
Deadly weapon means any weapon, device, instrument, substance, or article, which under the circumstances in which it is used, attempted to be used, or threatened to be used is readily capable of causing, death or substantial bodily harm.
CP at 90,93-94 (emphasis added); accord WPIC § 35.02, at 453; accord WPIC § 2.04, at
28; accordWPIC § 2.06.01, at 38. Jason Giles challenges the sufficiency of the evidence
for element (2), intent to inflict great bodily harm, and element (3), use of a deadly
weapon.
Under RCW 9A.04.11 0(4)( c), "Great bodily harm" consists of "a probability of
death, ... significant permanent disfigurement, or ... significant permanent loss or
impairment of the function of any bodily part or organ." Under RCW 9A.08.01O(a), "[a]
person acts with intent or intentionally when he or she acts with the objective or purpose
to accomplish a result which constitutes a crime." Specific intent cannot be presumed,
but it can be inferred as a logical probability from all the facts and circumstances of
defendant's conduct. State v. Wilson, 125 Wn.2d 212,217, 883 P.2d 320 (1994).
Viewed in a light most favorable to the State, including reasonable inferences, the
evidence shows that Jason Giles specifically intended to inflict significant permanent loss
or impairment of the function of a bodily part or organ. Giles opened the knife as Troy
Humphrey and Richard Wolfe attempted to pull Giles arms behind his back. Humphrey
testified: "[Giles] was able to get his hand free a number of times and move the weapon
about." RP at 474-75. Giles swung the knife at Virgil Wears. Wears saw the knife
coming and expected the blow to slice his knee. A jury could reasonably conclude that
Jason Giles intended to impair the functioning of Virgil Wear's knee and that Giles
intended the impairment to be significant and permanent enough to ensure his escape.
Thus, a rational jury could find that Jason Giles intended to inflict great bodily harm.
Jason Giles also argues the State did not meet its burden for element (3) of
showing he was armed with a deadly weapon. Objects other than firearms and explosives
qualify as deadly weapons only if the State proves, under the circumstances of the case,
that the object was "readily capable of causing death or substantial bodily harm." RCW
9A.04.110(6). In tum, '" Substantial bodily harm' means 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.04.110(4)(b). Giles argues the State failed to show he
possessed the knife in such circumstances that the knife was readily capable of causing
substantial bodily harm. We disagree.
RCW 9A.04.11O(6) requires more than mere possession of a deadly weapon. In re
Pers. Restraint ofMartinez, 171 Wn.2d 354,366,256 PJd 277 (2011). The jury may
conclude the defendant "used" a deadly weapon by the circumstances of a weapon's use,
including the intent and ability of the user, the degree of force, the part of the body to
which it was applied, and the actual injuries that were inflicted. State v. Barragan, 102
Wn. App. 754, 761, 9 PJd 942 (2000). "Ready capability is determined in relation to
surrounding circumstances, with reference to potential substantial bodily harm." State v.
Shilling, 77 Wn. App. 166, 171, 889 P.2d 948 (1995). "[T]here must be some
manifestation of willingness to use the knife before it can be found to be a deadly weapon
under RCW 9A.04.11O(6)." State v. Gotcher, 52 Wn. App. 350, 354, 759 P.2d 1216
(1988).
Jason Giles manifested a ready willingness to use the knife to cause severe injury.
Giles swung the open knife at Virgil Wear's knee. While only the knife's handle
contacted Wear, causing no real injury, the potential for impairment or a fracture, as
RCW 9A.04.11O(4)(b) requires, was great. Viewed in a light most favorable to the State,
the evidence shows that Giles intended to sufficiently injure Wear, aiming for a
vulnerable joint, to ensure escape. A rational jury could find that Jason Giles possessed
the knife in such circumstances that the knife was readily capable of causing substantial
bodily harm and thus a deadly weapon.
Jury Instruction: Abiding Belief in the Truth of the Charge
Jason Giles contends the trial court's instructions impermissibly lowered the
State's burden of proof through use ofthe phrase "abiding belief in the truth of the
charge." CP at 24, 80. We disagree.
Jason Giles is not the first to challenge the "abiding belief' language in a jury
instruction. Washington's traditional abiding-belief instruction has been upheld in
several appellate cases in which the defendant argued the language diluted the State of
Washington's burden of proof. See State v. Pirtle, 127 Wn.2d 628,658,904 P.2d 245
(1995); State v. Lane, 56 Wn. App. 286, 299-300, 786 P.2d 277 (1989); State v. Mabry,
51 Wn. App. 24, 25, 751 P.2d 882 (1988); State v. Price, 33 Wn. App. 472, 475-76, 655
P.2d 1191 (1982). The U.S. Supreme Court has also upheld the use of traditional
abiding-belief instructions. Victor v. Nebraska, 511 U.S. 1, 14-15, 114 S. Ct. 1239, 127
L. Ed. 2d 583 (1994).
1 No. 31699-8-111 State v. Giles
In State v. Bennett, 161 Wn.2d 303,318,165 P.3d 1241 (2007), our Supreme
Court "exercise[d] [its] inherent supervisory power to instruct Washington trial courts to
use only the approved pattern instruction WPIC 4.01 to instruct juries that the
government has the burden of proving every element of the crime beyond a reasonable
doubt." WPIC 4.01 allows optional use of the "abiding belief' language.
Jason Giles cites State v. Emery to argue that the abiding belief language is no
longer permissible. 174 Wn.2d 741,278 P.3d 653 (2012). In Emery, the prosecution
argued in closing: "'Members of the jury, I ask you, go back there to deliberate, consider
the evidence, use your life experience and common sense, and speak the truth by holding
these men accountable for what they did.'" 174 Wn.2d at 751. Our Supreme Court held:
"The jury's job is not to determine the truth of what happened; a jury therefore does not
'speak the truth' or 'declare the truth.' Rather, ajury'sjob is to determine whether the
State has proved the charged offenses beyond a reasonable doubt." Emery, 174 Wn.2d at
760 (citation omitted).
Emery is inapposite. "Declaring the truth" is different than an "abiding belief in
the truth of the charge." Inviting a jury to declare the truth mischaracterizes the jury's
role, suggesting that its role is to solve the case. Emery, 174 Wn.2d at 760. In contrast,
the existence or nonexistence of an "abiding belief' correctly invites the jury to weigh the
evidence.
27 No. 31699-8-II1 State v. Giles
Washington's Persistent Offender Accountability Act
Jason Giles contends his sentence under Washington's Persistent Offender
Accountability Act (POAA) to life without the possibility of parole (a) constitutes cruel
and unusual punishment, (b) violates his right to a jury because the court found his prior
strikes by only a preponderance of the evidence, and (c) violates his right to equal
protection because the classification of a persistent offender finding as a sentencing factor
unconstitutionally lowers the burden to less than beyond a reasonable doubt. We
disagree with each contention.
Whenever a sentencing court concludes an offender is a "persistent offender," the
court must impose a life sentence, and the offender is not eligible for parole or any form
of early release. RCW 9.94A.570. "Persistent offender" is an offender currently being
sentenced for a "most serious offense" who also has two or more prior convictions for
"most serious offenses." RCW 9.94A.030(37). RCW 9.94A.030(32) lists Washington's
"most serious offenses," which include any class A felony, second degree assault, and
second degree robbery, among other offenses.
Under the POAA, three of the four convictions at issue in this case-first degree
robbery, second degree robbery, and first degree assault-required the court to sentence
Jason Giles to life in prison without the possibility of parole. See RCW 9.94A.030(32),
.555, .570. Each of these three offenses is Jason Giles' third strike, because of earlier
convictions.
28 No. 31699-8-II1 State v. Giles
"The Eighth Amendment bars cruel and unusual punishment while article I,
section 14 [of the Washington Constitution] bars cruel punishment. This court has held
that the state constitutional provision is more protective than the Eighth Amendment in
this context." State v. Witherspoon, 180 Wn.2d at 887 (citing State v. Rivers, 129 Wn.2d
697, 712, 921 P.2d 495 (1996)). "Consequently, if we hold that [a defendant's] life
sentence does not violate the more protective state provision, we do not need to further
analyze the sentence under the Eighth Amendment." Witherspoon, 180 Wn.2d at 887.
To determine whether punishment is cruel under article 1, section 14, this court
considers the four factors set forth in State v. Fain, 94 Wn.2d 387,392-93,617 P.2d 720
(1980). Witherspoon, 180 Wn.2d at 887. Those four factors are: "(1) the nature of the
offense, (2) the legislative purpose behind the statute, (3) the punishment the defendant
would have received in other jurisdictions, and (4) the punishment meted out for other
offenses in the same jurisdiction." Rivers, 129 Wn.2d at 713.
Second degree robbery is the least culpable of Jason Giles' possible third strikes.
But even for second degree robbery, our Supreme Court "has repeatedly held that a life
sentence after a conviction for robbery is neither cruel nor cruel and unusual."
Witherspoon, 180 Wn.2d at 889.
Although we may agree with the trial court's sympathetic comments, Witherspoon
is dispositive. Alvin Witherspoon was sentenced under POAA to life in prison without
the possibility of parole for his committing second degree robbery. Witherspoon, 180
Wn.2d at 882. As Witherspoon exited a home he had just burgled, Witherspoon
encountered the victim of his burglary as she returned home. Witherspoon, 180 Wn.2d at
881. Witherspoon held his hand behind his back, and told the victim that he held a pistol.
Our Supreme Court analyzed the Fain factors as they pertain to second degree
robbery, noting that the nature of the crime of robbery includes the threat of violence
against another person. Witherspoon, 180 Wn.2d at 888. The purpose ofPOAA is the
segregation of persistent offenders from the rest of society, which also serves as a general
deterrence to others. Witherspoon, 180 Wn.2d at 888. Although most jurisdictions do
not count second degree robbery as a strike offense, most robbery offenses, in
Washington, carry with them the sentence of life in prison without the possibility of
release when the offender has a history of at least two other similarly serious offenses.
Witherspoon, 180 Wn.2d at 888. The Witherspoon Court concluded: "Considering the
four Fain factors, Witherspoon's sentence of life in prison without the possibility of
release does not violate article I, section 14 of the Washington State Constitution or the
Eighth Amendment to the United States Constitution." Witherspoon, 180 Wn.2d at 889.
In applying POAA to a particular defendant, Witherspoon invites courts to
consider a defendant's prior strikes. Witherspoon, 180 Wn.2d at 889. In this case, Jason
Giles inflicted bodily injury in 1999 when committing first degree robbery and in 2009
when committing second degree assault. Given the violent nature of all three of Jason
Giles' strikes, the sentence of life in prison without the possibility of release for this third
strike offense is proportionate to the crime, and accords with POAA's purposes.
Witherspoon, 180 Wn.2d at 889. Jason Giles' punishment of life in prison without the
possibility of parole may be severe, but the punishment is not unconstitutional.
Jason Giles also argues that a jury needed to find his prior strike convictions
beyond a reasonable doubt. Our Supreme Court addressed this issue in Witherspoon,
holding: "Neither the federal nor state constitution requires that previous strike offenses
be proved to a jury. Furthermore, the proper standard of proof for prior convictions is by
a preponderance of the evidence." Witherspoon, 180 Wn.2d at 893. The Witherspoon
court further noted that the best evidence of prior convictions are certified copies of the
respective judgments, which the State provided in this case. Witherspoon, 180 Wn.2d at
893. Thus, the State met its burden of proving Jason Giles' prior strikes.
Jason Giles asks this court to hold that the trial judge's imposition of a sentence of
life without the possibility of parole, based on the court's finding of the necessary facts
by a preponderance of the evidence, violated the equal protection clause. He argues that
similar convictions and punishments require a jury finding of guilt. Washington courts
have already addressed this issue and found no violation of equal protection.
In support of his equal protection argument, Giles urges this court to review the
POAA under the strict scrutiny standard. The decided standard is rational basis,
however. State v. Manussier, 129 Wn.2d 652, 673-74, 921 P.2d 473 (1996). "A statute
survives rational basis review if the statute is rationally related to achieve a legitimate
state interest and the classification does not rest on grounds that are wholly irrelevant to
achieving the state interest." State v. McKague, 159 Wn. App. 489,518,246 P.3d 558,
aff'd but criticized on other grounds, 172 Wn.2d 802, 262 P.3d 1225 (2011). "The
burden is on the party challenging the classification to show that it is 'purely arbitrary.'"
McKague, 159 Wn. App. at 518.
Jason Giles emphasizes that a jury must find beyond a reasonable doubt: a prior
conviction for a felony sex offense in order to punish a current conviction for
communicating with a minor for immoral purposes as a felony, State v. Roswell, 165
Wn.2d 186, 192, 196 P.3d 705 (2008); two prior convictions for violation of a no-contact
order in order to punish a current conviction for violation of a no-contact order as a
felony, State v. Oster, 147 Wn.2d 141, 146,52 P.3d 26 (2002); and four prior DUI
convictions in the last 10 years in order to punish a current DUI conviction as a felony,
State v. Chambers, 157 Wn. App. 465, 475, 237 P.3d 352 (2010). Thus, Giles contends,
Washington law has a higher standard for finite increases in incarceration than it does for
the imposition of a life sentence under POAA.
This court rejected such an argument in State v. Williams, writing:
The Washington Supreme Court has rejected equal protection arguments under the Persistent Offender Accountability Act (RCW 9.94A.555) that would require the State to submit a defendant's prior convictions to a jury and to prove them beyond a reasonable doubt. State v. Thiefault, 160 Wn.2d 409,418, 158 P.3d 580 (2007). The purposes of the Persistent Offender Accountability Act are the same for two-strike and three-strike offenders: to protect public safety by putting the most
dangerous criminals in prison, to reduce the number of serious repeat offenders, to provide simplified sentencing, and to restore the public trust in the criminal justice system.
We conclude then that proof of his prior convictions by a preponderance of the evidence is not entirely irrelevant to the purposes of the persistent offender statutes.
156 Wn. App. 482, 498, 234 P.3d 1174 (2010).
As Division One of this court concluded in State v. Langstead, "recidivists whose
conduct is inherently culpable enough to incur a felony sanction are, as a group,
rationally distinguishable from persons whose conduct is felonious only if preceded by a
prior conviction for the same or a similar offense." 155 Wn. App. 448, 456-57, 228 P.3d
799 (2010). Because the POAA is rationally related to this distinction, it survives
rational basis review.
Legal Financial Obligations
Jason Giles contends the trial court imposed discretionary legal financial
obligations (LFOs) without any evidence of his present or future ability to pay those
costs. Courts may impose legal financial obligations, such as court costs, DNA collection
fees, and victim restitution, if a defendant has or will have the financial ability to pay
them. RCW 10.01.160; RCW 9.94A.760(2); State v. Curry, 118 Wn.2d 911, 914-16, 829
P.2d 166 (1992).
Jason Giles failed to object to the legal financial obligations below. Until our
Supreme Court decides otherwise, the rule established by each division of this court is
that a defendant may not challenge a determination regarding his or her ability to pay
LFOs for the first time on appeaL State v. Duncan, 180 Wn. App. 245, 252, 327 P.3d 699
(2014); State v. Calvin, 176 Wn. App. 1,316 P.3d 496, 507-08, petition for review filed,
No. 89518-0 (Wash. Nov. 12,2013); State v. Blazina, 174 Wn. App. 906, 911, 301 P.3d
492, review granted, 178 Wn.2d 1010,311 P.3d 27 (2013). Therefore, we do not reach
Giles' challenge to the trial court's imposition of $200 in discretionary costs.
CONCLUSION
We affirm the convictions and sentence of Jason Giles.
A majority of the panel has determined this opinion will not be printed in the
Washington Appellate Reports, but it will be filed for public record pursuant to RCW
2.06.040.