State v. Bainard

148 Wash. App. 93, 2009 WL 23371
CourtCourt of Appeals of Washington
DecidedJanuary 6, 2009
DocketNo. 23247-6-III
StatusPublished
Cited by11 cases

This text of 148 Wash. App. 93 (State v. Bainard) is published on Counsel Stack Legal Research, covering Court of Appeals of Washington primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Bainard, 148 Wash. App. 93, 2009 WL 23371 (Wash. Ct. App. 2009).

Opinion

Schultheis, C.J.

¶1 — Nicolas Bainard appeals the firearm enhancements to his sentence for his convictions on two counts of second degree murder. He claims that because the jury found that he was armed with a deadly weapon, he should have been sentenced to a two-year deadly weapon enhancement, rather than the five-year firearm enhancement, which was not based on facts found by the jury. We agree and reverse the sentence and remand for correction of his sentence.

¶2 The State cross-appeals, asserting that the trial court erred by vacating the guilty verdict on the first degree arson [98]*98charge. The court held that the State had failed to prove an essential element of the offense because the dead bodies of the murder victims within the building when it was burned are not human beings within the meaning of the statute as charged. See RCW 9A.48.020(1)(c) (first degree arson by causing a fire in a building “in which there shall be at the time a human being who is not a participant in the crime”). We conclude that the trial court correctly vacated the conviction. We therefore affirm the trial court’s arrest of judgment on the first degree arson charge.

FACTS

¶3 The State charged Mr. Bainard with two counts of first degree murder arising from the deaths of his parents, Richard and Ella Bainard, and one count of first degree arson. The second amended information alleged that Mr. Bainard “unlawfully, feloniously, and with premeditated intent to cause the death of another person, did shoot with a shotgun, thereby causing the death of Richard Bainard, a human being, and in the commission of the crime the defendant . . . was armed with a deadly weapon thereby invoking the provisions of RCW 9.94A.533 and/or 9.94A.602.” Clerk’s Papers (CP) at 240. An identical count charged Mr. Bainard with the death of Ella Bainard.

¶4 The information charged that the arson was committed by causing a fire or explosion in a building “in which there was at that time a human being who was not a participant in the crime.” CP at 241.

¶5 At trial, the medical examiner testified that Mr. Bainard’s parents had died of gunshot wounds and were dead before the building in which they were found was burned. Mr. Bainard had been in the Chelan County family home during the evening of June 29, 2003, before his parents were shot and was present and unharmed at the scene of the fire some seven or eight hours later. Mr. Bainard had made threats to kill his parents in the presence of his peers. In the early morning hours of June 30, Mr. [99]*99Bainard told a high school friend “that he did it, he finally did it” and asked the friend to be his alibi. Report of Proceedings (RP) at 514.

¶6 The court gave the jury a “to-convict” instruction on the lesser included offense of second degree murder:

To convict the defendant of the lesser included crime for count I of murder in the second degree, each of the following elements of the crime must be proved beyond a reasonable doubt:
(1) That on or about the 29th day of June, 2003, the defendant shot Richard Bainard with a shotgun;
(2) That the defendant acted with intent to cause the death of Richard Bainard;
(3) That Richard Bainard died as a result of the defendant’s acts; and
(4) That the acts occurred in the State of Washington.

CP at 156. An identical instruction was given for count 2, the second degree murder of Ella Bainard.

¶7 The court gave a special verdict instruction:

For purposes of a special verdict the State must prove beyond a reasonable doubt that the defendant was armed with a deadly weapon at the time of the commission of the crime in count I. A person is armed with a deadly weapon if, at the time of the commission of the crime, the deadly weapon is easily accessible and readily available for offensive or defensive use. The State must prove beyond a reasonable doubt that there is a connection among the defendant, the crime, and the deadly weapon.
A pistol, revolver, or any other firearm is a deadly weapon whether loaded or unloaded.

CP at 166. An identical special verdict was given for count 2.

¶8 The jury returned guilty verdicts on two counts of second degree murder and one count of arson. It returned special verdicts finding that Mr. Bainard was armed with a deadly weapon at the time of the commission of the two murder counts.

[100]*100¶9 The court granted the defense motion under CrR 7.4 to arrest the judgment, finding that the State had failed to prove that at the time of the arson there was a human being in the building. The charge was dismissed with prejudice.

¶10 The defense challenged the sufficiency of the jury instructions and verdicts to support sentencing enhancements based on possession of a firearm or deadly weapon. The court found the verdicts were sufficient to support firearm enhancements of five years on each of the two murder counts. The court reasoned that because the jury was instructed that a firearm is a deadly weapon, the jury found Mr. Bainard was armed with a deadly weapon, and therefore must have found he was armed with a firearm.

¶11 The State recommended standard range sentences of 160 months and 165 months on the second degree murder convictions plus two 60-month sentence enhancements for the firearm. But the court imposed a sentence of 450 months’ confinement, including the two consecutive 60-month firearm enhancements. This appeal follows.

¶12 We stayed this case pending the mandate of the firearm enhancement issue decided in State v. Recuenco, 154 Wn.2d 156, 110 P.3d 188 (2005) (Recuenco I), rev’d, 548 U.S. 212, 126 S. Ct. 2546, 165 L. Ed. 2d 466 (2006) (Recuenco II). The stay was continued after the United States Supreme Court granted certiorari. This case was released from stay after the Washington Supreme Court decided State v. Recuenco, 163 Wn.2d 428, 180 P.3d 1276 (2008) (Recuenco III). The parties supplemented their briefs after Recuenco II and III.

DISCUSSION

¶13 The State first claims that because Mr. Bainard did not take exception to the special verdict instructions, he invited the error. The invited error doctrine prevents parties from benefiting from an error they caused at trial. City of Seattle v. Patu, 147 Wn.2d 717, 720-21, 58 P.3d 273 (2002). The doctrine does not apply here, however. [101]*101Recuenco I, 154 Wn.2d at 163. Mr. Bainard is challenging his sentence. Id.

¶14 Where the State does not give notice of the specific enhanced penalty it ultimately seeks to invoke, the court may not impose that enhanced penalty. Recuenco III, 163 Wn.2d at 433-37 (citing State v. Theroff, 95 Wn.2d 385, 392-93, 622 P.2d 1240

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Cite This Page — Counsel Stack

Bluebook (online)
148 Wash. App. 93, 2009 WL 23371, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-bainard-washctapp-2009.