State v. McKague

159 Wash. App. 489

Opinions

Hunt, J.

¶1 — Jay Earl McKague appeals his third degree theft and second degree assault jury convictions and his lifetime sentence as a persistent offender. He argues that (1) the trial court erred by refusing his request to waive a jury; (2) the evidence was insufficient to support his second degree assault conviction; (3) a jury instruction created a mandatory presumption that improperly relieved the State of its burden of proof; (4) he was denied effective assistance of counsel because his trial counsel withdrew a proposed jury instruction on an inferior degree offense; and (5) the sentencing phase of his trial violated his state and federal due process and equal protection rights¹ because a judge, rather than a jury, found the existence of his prior convictions by a preponderance of evidence rather than beyond a reasonable doubt. We affirm his convictions and sentence.

FACTS

I. Shoplift and Assault

¶2 On October 17, 2008, Jay Earl McKague stole a can of smoked oysters from Kee Ho Chang’s grocery store in Olympia. When Chang tried to “grab” McKague in the store’s parking lot, McKague repeatedly punched² Chang, who fell to the ground. I Verbatim Report of Proceedings (VRP) at 105. As Chang fell to the ground, McKague hit Chang several more times before jumping into a car and fleeing. When Chang “tr[ied] to get up,” he “got very dizzy,” and “for a while [he] couldn’t get up.” I VRP at 64-65. Eventually, Chang was able to stand up. Officer George Samuelson, who arrived shortly after the incident, described the left side of Chang’s face as “extremely puffy.” I VRP at 36. According to Detective Sam Costello, who arrived at the scene in response to the police dispatch, Chang “app [eared] injured [ ] on the left side of his face and on the back of his head.” I VRP at 49.

¶3 An emergency room medical evaluation documented Chang’s injuries, which included a concussion, a scalp contusion, and neck and shoulder pain. A computerized axial tomography scan (CT scan) showed a possible occult fracture of Chang’s facial bones.³ On the day of the incident, law enforcement officers took photographs of Chang that showed bruising and swelling around his left eye, redness and swelling of his left check, lacerations on his arm, a contusion on his head, and blood on his scalp. The emergency room physician prescribed Vicodin for the pain and cautioned Chang to limit his activities for the next two weeks. Chang’s private physician prescribed Chang anti-inflammatory medication. Three days later, law enforcement officers took photographs of Chang’s face that showed bruising remaining around Chang’s left eye.

II. Procedure

|4 The State charged McKague with first degree robbery, RCW 9A.56.200(1), or in the alternative second degree assault, RCW 9A.36.021(l)(a). He attempted to waive his right to a jury trial and to proceed with a bench trial. The trial court refused, reasoning that (1) McKague’s counsel was very experienced with jury trials; (2) McKague’s concern that a jury would try him unfairly because of his criminal history was unfounded, given that a jury would not be told about McKague’s criminal history unless he chose to testify; (3) the seriousness of the charges against McKague warranted a jury trial; and (4) the appearance of fairness would be advanced by having more than one person determine McKague’s culpability for such serious charges.

¶5 McKague requested an instruction on third degree assault as an inferior degree offense of second degree assault.* **⁴ The State objected to McKague’s request. The trial court initially agreed with the State and denied McKague’s request, stating that the evidence did not support the inference that McKague acted only with criminal negli gence. In response, McKague indicated that he would request a jury instruction on fourth degree assault as an inferior degree offense to second degree assault. The next day, the trial court reconsidered its previous ruling and granted McKague’s request for an instruction on third degree assault. McKague did not request a fourth degree assault instruction.

¶6 Ultimately, the trial court gave standard jury instructions⁵ on (1) first degree robbery; (2) third degree theft as an inferior degree offense of first degree robbery; (3) second degree assault; and (4) third degree assault as an inferior degree offense of second degree assault. McKague did not challenge the language of the second degree assault instruction or argue that the wording was improper. He did not object to the trial court’s instruction that “[w]hen recklessness as to a particular fact is required to establish an element of a crime, the element is also established if a person acts intentionally or knowingly”; nor did he argue that this instruction created an improper mandatory presumption. Clerk’s Papers (CP) at 47.

¶7 In closing, McKague argued that a third degree assault conviction, rather than second degree, was appropriate because (1) the evidence tended to show McKague’s mental state was criminal negligence; and (2) the severity of Chang’s injuries rose to the level of third degree assault, but not second degree. The jury found McKague guilty of second degree assault and third degree theft.

¶8 Based on his prior felony convictions for second degree assault, first degree kidnapping, and first degree robbery, the State had alleged that McKague was a persistent offender under RCW 9.94A.570. The trial court examined certified copies of the judgment and sentence forms from McKague’s two prior “strikes,”⁶ IV VRP at 309, and sentenced McKague to life imprisonment without the possibility of parole. During the sentencing hearing, McKague never asked that a jury be impaneled to determine the existence of his prior convictions nor did he challenge the trial judge’s role as fact finder for these prior convictions. And he did not dispute the existence of his prior convictions or the standard of proof that the trial court applied. See IV VRP at 306-13.

¶9 McKague appeals.

ANALYSIS

I. Jury Trial Waiver

¶10 McKague first argues that the trial court erred in refusing to accept his jury trial waiver. This argument fails.

¶11 A defendant has no constitutional right to a nonjury trial. State v. Thompson, 88 Wn.2d 13, 15, 558 P.2d 202 (1977) (citing Singer v. United States, 380 U.S. 24, 36, 85 S. Ct. 783, 13 L. Ed. 2d 630 (1965)). A defendant may waive his right to a jury trial only with the trial court’s consent. CrR 6.1(a); RCW 10.01.060. The trial court has discretion to refuse a jury waiver even where both parties concur in the request for a nonjury trial. See State v. Newsome, 10 Wn. App. 505, 507-08, 518 P.2d 741 (1974). We review a trial court’s denial of a jury trial waiver for abuse of discretion to ensure that the trial court did not merely deny the request by rote but that it exercised discretion with an eye to ensuring a fair trial. Singer, 380 U.S. at 34. An abuse of discretion occurs when the trial court’s decision is “manifestly unreasonable, or exercised on untenable grounds, or for untenable reasons.” State ex rel. Carroll v. Junker, 79 Wn.2d 12, 26, 482 P.2d 775 (1971). We find no abuse of discretion here.

¶12 The trial court articulated several tenable reasons for rejecting McKague’s jury waiver: the seriousness of the crime, defense counsel’s jury trial expertise, and the appearance of fairness in having McKague’s culpability for such a serious charge determined by more than one person. We hold, therefore, that the trial court properly exercised its discretion when it denied McKague’s request to waive his jury trial rights and to be tried by the court.

II. Sufficiency of the Evidence: “Substantial Bodily Harm”

¶13 McKague next contends that the State failed to prove each element of second degree assault beyond a reasonable doubt. McKague concedes the State’s evidence proves that he assaulted Chang, but he maintains that the evidence does not establish that Chang suffered substantial bodily harm as a result. We disagree.

¶14 In considering a challenge to the sufficiency of the evidence, we view the evidence in the light most favorable to the State and ask whether 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) (citing State v. Green, 94 Wn.2d 216, 220-22, 616 P.2d 628 (1980)). A claim that the evidence was insufficient admits the truth of the State’s evidence and all reasonable inferences drawn from that evidence. Salinas, 119 Wn.2d at 201.

¶15 A conviction for second degree assault requires the State to prove beyond a reasonable doubt that a defendant intentionally assaulted another and thereby recklessly inflicted substantial bodily harm. RCW 9A.36.021(l)(a). RCW 9A.04.110(4)(b) defines “substantial bodily harm” as

bodily injury which involves [(1)] a temporary but substantial disfigurement, or [(2)] which causes temporary but substantial loss or impairment of the function of any bodily part or organ, or [(3)] which causes a fracture of any bodily part.

McKague argues that the State failed to prove beyond a reasonable doubt any of these three possibilities of substantial bodily harm.

¶16 Specifically, McKague contends that (1) Chang’s scalp contusion and “strained shoulder” did not rise to the level of “temporary but substantial disfigurement,” Br. of Appellant at 7-8; (2) Chang’s “concussion without loss of consciousness” did not cause “any lack of function or impairment,” Br. of Appellant at 8; and (3) Chang did not suffer a fracture because the record establishes only a “potential occult fracture.” Br. of Appellant at 7. Based on this, McKague argues that the record contains insufficient evidence to convict him of second degree assault. This argument fails.

A. Bodily Injury Involving a Temporary But Substantial Disfigurement

¶17 McKague contends that Chang’s scalp contusion and “strained shoulder” do not count as a “temporary but substantial⁷ disfigurement” under RCW 9 A. 04-.110(4)(b). Br. of Appellant at 8. Even assuming, without deciding, that McKague is correct, his argument fails: Taking the facts in the light most favorable to the State postconviction, a rational trier of fact could conclude that McKague inflicted other injuries besides the scalp contusion and “strained shoulder,” which other injuries qualified as a “temporary but substantial disfigurement” under RCW 9A.04.110(4)(b). Br. of Appellant at 8. And we further note that visible bruising itself rises to the level of temporary substantial disfigurement. See State v. Hovig, 149 Wn. App. 1, 5, 13, 202 P.3d 318 (“serious” “red and violet teeth-mark[ ]” bruising that lasted for 7 to 14 days constituted “substantial bodily injury”), review denied, 166 Wn.2d 1020 (2009); see also State v. Ashcraft, 71 Wn. App. 444, 455, 859 P.2d 60 (1993) (bruises that resulted from being hit by a shoe were “ ‘temporary but substantial disfigurement’ ” (quoting RCW 9A.04.110(4)(b))).

¶18 Officer George Samuelson testified that when he arrived at the scene, he observed that Chang “obviously” had injuries on the left side of his face. I VRP at 36. Samuelson described Chang’s face as “extremely puffy” and bruised; Chang had a bump on the back of his head and “looked like he was affected, affected by [the] blows.” I VRP at 36. Detective Sam Costello confirmed that the photographs taken on the day of the incident and admitted into evidence at trial accurately reflected Chang’s injuries that day. Based on these contemporaneous photos, Costello described Chang’s injuries as swelling around his eye causing it to be “a little bit shut or closer shut than normal,” swelling of his cheek, an abrasion on his left cheek, and a laceration on his head. II VRP at 175. Costello also testified that the photographs of Chang taken three days later showed injuries that were “consistent with that which occurred” during the incident with McKague, II VRP at 176, and that the bruising around Chang’s eye had already begun to turn yellow.

¶19 Viewing the above facts in a light most favorable to the State, a rational trier of fact could find that McKague inflicted on Chang a “bodily injury which involves a temporary but substantial disfigurement.” RCW 9A.04.110(4)(b).

B. Temporary Substantial Impairment of Bodily Part or Organ Function

¶20 McKague next contends that Chang’s “concussion without a loss of consciousness” did not cause “any lack of function or impairment.” Br. of Appellant at 8. This argument also fails: Viewed in a light most favorable to the State, the evidence establishes that a rational trier of fact could find that several of Chang’s injuries, including his concussion, constituted a bodily injury that “cause [d] temporary but substantial loss or impairment of the function of any bodily part or organ.” RCW 9A.04.110(4)(b).

¶21 Chang testified that immediately after McKague punched him, he was so dizzy that “for a while,” I VRP at 65, he could not stand up. Based on Chang’s inability to stand “for a while,” I VRP at 65, let alone walk, after McKague had repeatedly punched him and knocked him down, a rational trier of fact could find a “temporary but substantial loss or impairment of the function of any bodily part or organ.” RCW 9A.04.110(4)(b).

¶22 Additionally, Officer George Samuelson testified that when he arrived at the scene, Chang appeared disoriented and “was just a little bit off.” I VRP at 36. The medical report from Chang’s emergency room visit the day of the incident explained that Chang had a concussion without loss of consciousness. Chang’s discharge papers included warnings about potentially dangerous symptoms for which Chang should be vigilant, complications related to his concussion, instructions to help monitor and expedite his recovery, and restrictions on various life activities over the next day and subsequent two-week period. For example, Chang was precluded from drinking alcohol, operating machinery, driving, heavy lifting and straining for at least 24 hours, and participating in contact sports for at least two weeks and then only after receiving doctor approval.

¶23 The jury could also reasonably infer that Chang had a temporary brain impairment based on the concussion that he suffered and on Officer Samuelson’s testimony that Chang seemed “a little bit off” when answering questions the night of the assault, compared to their previous contacts. I VRP at 36. According to Chang’s medical records, a concussion produces both short- and long-term negative health effects on the body.⁸ Chang’s medical records also included the following patient discharge instructions describing and relating to his concussion:

Concussion is a head injury that causes a transient loss of consciousness, without any serious brain lesion, injury, or complications. Most head injuries do not cause any serious problems and get better within several days. A Concussion may cause a moderate headache and loss of memory surrounding the head injury event. You may experience weakness, dizziness, nausea, concentration difficulties, and depression for up to a week or more after the injury. This post-injury state is called a post-concussion syndrome and usually gets better with bed rest and mild pain medicine. If any of these symptoms last for more than a week, you will need further medical attention. See your doctor or return to emergency if symptoms last longer than one week.

Ex. 34, at 6 (emphasis added). This definition identifies headaches, memory loss, and at least five brain complications that can last for an extended period of time; the last of these is classified as a medical “syndrome.” Because the emergency room affirmatively diagnosed Chang with a concussion, the jury could rely on these effects of a concussion to determine that Chang’s concussion rose to the level of substantial bodily injury.

¶24 Chang’s medical report also reflected that Chang experienced neck and shoulder pain. He received a four-day prescription for Vicodin for his severe pain. And he testified that he had “very severe” pain throughout his neck and shoulder during the week after the incident, for which his private doctor prescribed an anti-inflammatory medication, I VRP at 66, and that his neck and shoulder pain subsided but persisted for two to three months. Chang’s months of shoulder and neck pain also constitute a substantial bodily injury; although pain is no longer an enumerated independent basis for substantial bodily injury, the statutory definition of “substantial bodily injury” does not preclude consideration of pain and its effects. Laws of 1988, ch. 158, § 1. Thus, the jury could reasonably infer that Chang had a loss or impairment of the use of his arm and shoulder function related to his severe neck and shoulder pain that lasted for two to three months.

¶25 Viewing the evidence in the light most favorable to the State, a rational trier of fact could find, beyond a reasonable doubt, that Chang suffered “a bodily injury . . . which causes temporary but substantial loss or impairment of the function of any bodily part or organ” as a result of McKague’s intentional assault. RCW 9A.04.110(4)(b).

C. Bodily Injury Causing a Fracture of Any Bodily Part

¶26 Finally, McKague argues that Chang did not suffer a fracture because the record establishes only a “potential occult fracture.” Br. of Appellant at 7. Because we hold that a rational trier of fact could find substantial bodily injury under the disfigurement or impairment bases, we need not and do not reach the fracture issue. We note, however, that the record contains some evidence that Chang may have suffered a fracture: A physician concluded that the results of a CT scan performed on Chang the day of the incident “potentially indicat[ed an] occult fracture.” Ex. 34, at 2.

III. Jury Instructions

A. Substantial Bodily Harm; Recklessness

¶27 McKague next argues that the second degree assault “to convict” instruction (1) improperly created a mandatory presumption that if the jury found that he had intentionally assaulted Chang, he (McKague) necessarily inflicted substantial bodily harm; and (2) relieved the State of its burden of proving every element of the crime beyond a reasonable doubt. More specifically, McKague contends that if a reasonable juror found that he intentionally assaulted Chang (element one), the jury instruction on recklessness mandated that juror to conclude that McKague had thereby inflicted substantially bodily harm (element two) because he acted intentionally. We find McKague’s argument unpersuasive.

¶28 At the outset, we note that we will not consider allegedly erroneous instructions for the first time on appeal absent manifest error affecting a constitutional right. State v. Mills, 154 Wn.2d 1, 6, 109 P.3d 415 (2005). Although McKague requested a jury instruction on third degree assault as an inferior degree offense of second degree assault, he did not object to the wording of the second degree assault instruction below; nor did he argue below, as he does for the first time on appeal, that the recklessness instruction created an improper mandatory presumption. Because McKague’s alleged error potentially rises to the level of a “manifest error affecting a constitutional right,” Mills, 154 Wn.2d at 6, we address this issue and hold that the “recklessness” jury instruction did not create a mandatory presumption.⁹

1. Standard of review

¶29 We review alleged errors of law in jury instructions de novo. State v. Barnes, 153 Wn.2d 378, 382, 103 P.3d 1219 (2005). Due process requires the State to prove every essential element of the crime beyond a reasonable doubt. In re Winship, 397 U.S. 358, 364, 90 S. Ct. 1068, 25 L. Ed. 2d 368 (1970); State v. Deal, 128 Wn.2d 693,698,911 P.2d (1996). A mandatory presumption is one that requires the jury to find a presumed fact from a proven fact. State v. Hayward, 152 Wn. App. 632, 642, 217 P.3d 354 (2009). Such a presumption exists if a reasonable juror would interpret the presumption to be mandatory. Hayward, 152 Wn. App. at 642.

2. Second degree assault and recklessness instructions

¶30 The trial court instructed the jury about the elements of second degree assault in this “to convict” instruction:

To convict the defendant of the crime of assault in the second degree, each of the following elements of the crime must be proved beyond a reasonable doubt:

(1) That on or about October 17, 2008, the defendant intentionally assaulted KEE [¶] CHANG;

(2) That the defendant thereby recklessly inflicted substantial bodily harm on KEE [¶] CHANG; and

(3) That this act occurred in the State of Washington.

CP at 49. The trial court also instructed the jury that “[w]hen recklessness as to a particular fact is required to establish an element of a crime, the element is also established if a person acts intentionally or knowingly.” CP at 47. McKague did not object to either of these instructions.

3. Hayward

¶31 Our decision in Hayward is enlightening, but not controlling here. In Hayward, the trial court instructed the jury that “ ‘[a] person commits the crime of assault in the second degree when he or she intentionally assaults another and thereby recklessly inflicts substantial bodily harm.’ ” Hayward, 152 Wn. App. at 643 (quoting Clerk’s Papers at 29). We did not find error in this second degree assault instruction in Hayward.

¶32 We did, however, find reversible error in the Hayward trial court’s additional instruction that “ ‘[fleck lessness also is established if a person acts intentionally.’ ” Hayward, 152 Wn. App. at 643 (quoting Clerk’s Papers at 33). The second degree assault instruction in Hayward contained two separate mental states, each corresponding to a separate act: (1) intentionality (assaultive act); and (2) recklessness (infliction of substantial bodily harm). Hayward, 152 Wn. App. at 643. But the defective “recklessness” instruction effectively collapsed second degree assault into an offense with only a single mental state (which could be satisfied with a finding of either recklessness or intentionality), rather than the required two mental states corresponding to the two discrete acts. Hayward, 152 Wn. App. at 644-45.

¶33 In other words, the defective “recklessness” instruction allowed the jury to conclude that if Hayward had intentionally assaulted the victim, then recklessness in general was established and, therefore, Hayward must have also recklessly inflicted substantial bodily harm. Hayward, 152 Wn. App. at 645. This conclusion was improper because, as mirrored by the Hayward trial court’s assault instruction noted above, second degree assault comprises two discrete acts, each with its own mental state — intentional assault and reckless infliction of substantial bodily harm. RCW 9A.36.021(l)(a). The defective “recklessness” instruction in Hayward improperly eliminated a critical second mental element of second degree assault, thereby relieving the State of part of its burden of proof. Hayward, 152 Wn. App. at 645.

¶34 Such is not the case here, however. Here, the trial court avoided this Hayward problem by giving the following correct “recklessness” instruction:

“When recklessness as to a particular fact is required to establish an element of a crime, the element is also established if a person acts intentionally or knowingly.”

CP at 47 (emphasis added).¹⁰ This “recklessness” instruction made clear that (1) only if the jury found intentionality as to the discrete act of assault could it also find recklessness as to the discrete act of assault; but (2) unlike in Hayward, the jury could not, as a consequence, also find recklessness as to the infliction of substantial bodily harm. Cf. Hayward, 152 Wn. App. at 646. Therefore, we hold that the “recklessness” instruction did not create a mandatory presumption.

B. Lesser Included Offense

¶35 In his Statement of Additional Grounds,¹¹ McKague argues that he was denied his right to effective representation when his trial counsel withdrew a proposed jury instruction on the lesser degree crime of fourth degree assault, after the trial court changed its mind and decided to instruct on third degree assault, as counsel had originally requested. McKague’s argument fails.

¶36 We review de novo a claim that counsel ineffectively represented the defendant. State v. Thach, 126 Wn. App. 297, 319, 106 P.3d 782 (2005). To establish that counsel was ineffective, the defendant must show that (1) counsel’s performance fell below an objective standard of reasonableness, and (2) the deficient representation prejudiced his defense, i.e., that there is a reasonable probability that, but for the deficient performance, the results of the proceeding would have differed. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); State v. Brockob, 159 Wn.2d 311, 344-45, 150 P.3d 59 (2006). We presume that defense counsel was effective, a presumption that the defendant can overcome only by showing the absence of a legitimate strategic or tactical basis for the challenged conduct. State v. McFarland, 127 Wn.2d 322, 335, 899 P.2d 1251 (1995). To establish prejudice, a defendant must show that if counsel had made the objections or arguments now embraced, they would have likely succeeded. See McFarland, 127 Wn.2d at 337 n.4.

¶37 An instruction on an inferior degree offense is warranted if “ ‘(1) the statutes for both the charged offense and the proposed inferior degree offense “proscribe but one offense”; (2) the information charges an offense that is divided into degrees, and the proposed offense is an inferior degree of the charged offense; and (3) there is evidence that the defendant committed only the inferior degree offense.’ ” State v. Fernandez-Medina, 141 Wn.2d 448, 454, 6 P.3d 1150 (2000) (quoting State v. Peterson, 133 Wn.2d 885, 891, 948 P.2d 381 (1997)). A defense counsel’s decision not to request an instruction on a lesser offense, however, may constitute a legitimate trial strategy. State v. Hassan, 151 Wn. App. 209, 218, 211 P.3d 441 (2009).

¶38 To prove third degree assault, the State must prove that the defendant, with criminal negligence, caused bodily harm accompanied by substantial pain that extends for a period sufficient to cause considerable suffering. RCW 9A.36.031(l)(f). In contrast, a person is guilty of fourth degree assault if, under circumstances not amounting to first, second, or third degree assault, he or she assaults another. RCW 9A.36.041(1).

¶39 At trial, McKague’s defense counsel proposed an instruction on third degree assault as a lesser degree offense. The State objected, claiming that the facts did not support an inference that McKague negligently assaulted Chang. Initially agreeing, the trial court at first refused to instruct the jury on third degree assault. McKague’s defense counsel asserted that, in light of the trial court’s denial of his request for an instruction on third degree assault, he would request a jury instruction on fourth degree assault.

¶40 The following day, the trial court reconsidered its earlier denial and agreed to instruct the jury on third degree assault. As a result, McKague’s defense counsel withdrew his request for a jury instruction on fourth degree assault. Ultimately, the trial court instructed the jury on third degree assault as an inferior degree offense of second degree assault.

¶41 Defense counsel’s strategy was clear in closing argument: He conceded that “[w]e saw the bodily harm occur to Mr. Chang,” but he contested the severity of the harm. Ill VRP at 268. Given that in light of medical records, photographs, and testimony from witnesses and Chang himself it was not possible to show that no bodily harm occurred, defense counsel reasonably concluded that the best strategy was to argue that third degree assault best fit the evidence. Barnes, 153 Wn.2d at 382 (jury instructions are proper when they reflect a party’s theory of the case). Similarly here, defense counsel admitted that “[McKague] committed the assault,” III VRP at 278, but he argued that the evidence supported an inference that McKague inflicted bodily harm on Chang with only a mental state of criminal negligence (third degree assault), rather than recklessness (second degree assault).

¶42 Defense counsel also expressed his concern that if instructed on second degree assault (requiring substantial bodily harm) and fourth degree assault (requiring no showing of bodily harm), a jury would summarily reject fourth degree assault. Counsel’s strategy was legitimate and allowed him to argue the lesser third degree assault offense, which best reflected his theory of the case. McKague thus fails to meet the performance prong of the Strickland test. Accordingly, we do not reach the prejudice prong.

IV. Persistent Offender Sentence

A. Due Process

¶43 McKague next argues that the trial court violated his constitutional rights when it sentenced him as a “persistent offender” under RCW 9.94A.570 because the judge, not a jury, determined the existence of his' prior convictions through a preponderance of the evidence. Br. of Appellant at 15. This argument also fails.

¶44 Taken together, the Sixth Amendment and the due process clause of the Fourteenth Amendment to the United States Constitution “entitle a criminal defendant to a ‘jury determination that [he] is guilty of every element of the crime with which he is charged, beyond a reasonable doubt.’ ” Apprendi v. New Jersey, 530 U.S. 466, 477, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000) (alteration in original) (quoting United States v. Gaudin, 515 U.S. 506, 510, 115 S. Ct. 2310, 132 L. Ed. 2d 444 (1995)). Although the right to a jury trial and the prosecution’s burden of proof beyond a reasonable doubt are “constitutional protections of surpassing importance,” Apprendi, 530 U.S. at 476, the Supreme Court has decided that these protections do not apply to determining the existence of prior convictions. See Almendarez-Torres v. United States, 523 U.S. 224, 239, 118 S. Ct. 1219, 140 L. Ed. 2d 350 (1998); see also Apprendi, 530 U.S. at 490 (“Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” (emphasis added)); United States v. O’Brien,_U.S._, 130 S. Ct. 2169, 2174, 176 L. Ed. 2d 979 (2010) (recognizing exception carved out by Almendarez-Torres).¹²

¶45 Our Supreme Court continues to follow this federal constitutional rule:

This court has repeatedly . . . held that Apprendi and its progeny do not require the State to submit a defendant’s prior convictions to a jury and prove them beyond a reasonable doubt.

State v. Thiefault, 160 Wn.2d 409, 418, 158 P.3d 580 (2007) (citation omitted); see also State v. Roswell, 165 Wn.2d 186, 193 n.5, 196 P.3d 705 (2008) (recognizing the “prior conviction exception” of Almendarez-Torres). Until such time as our Supreme Court overrules itself, we are bound by its holding on the issue before us here. State v. Burkins, 94 Wn. App. 677, 701, 973 P.2d 15 (citing State v. Hairston, 133 Wn.2d 534, 539, 946 P.2d 397 (1997)), review denied, 138 Wn.2d 1014 (1999).

¶46 Although McKague acknowledges Almendarez-Torres, he asserts that its “ ‘narrow exception’ ” “has been marginalized out of existence.” Br. of Appellant at 22. Judge Quinn-Brintnall’s concurrence/dissent similarly advocates that we not follow several recent cases from our Supreme Court that rely on Almendarez-Torres, such as State v. Thorne;¹³ in support, the dissent asserts that the United States Supreme Court’s recent decisions have implicitly held that the Almendarez-Torres analysis does not apply to cases such as this. See concurrence/dissent (Quinn-Brintnall, J.) at 533-35. In essence, McKague and Judge Quinn-Brintnall’s concurrence/dissent urge us to disregard the United States Supreme Court’s interpretation of the Sixth Amendment right to a jury trial in Almendarez-Torres, Apprendi, and their progeny and its refusal to date to extend the right to a jury trial to proof of prior convictions in sentencing hearings conducted under recidivist statutes like the Persistent Offender Accountability Act (POAA), chapter 9.94A RCW. This we cannot and will not do.

¶47 The Supreme Court has cautioned expressly against the practice advanced by McKague and Judge QuinnBrintnall’s concurrence/dissent:

We [the United States Supreme Court] do not acknowledge, and we do not hold, that other courts should conclude our more recent cases have, by implication, overruled an earlier precedent. We reaffirm that “[i]f a precedent of this Court has direct application in a case, yet appears to rest on reason rejected in some other line of decisions, the [lower courts] should follow the case which directly controls, leaving to this Court the prerogative of overruling its own decisions”

Agostini v. Felton, 521 U.S. 203, 237, 117 S. Ct. 1997, 138 L. Ed. 2d 391 (1997) (emphasis added) (second alteration in original) (quoting Rodriguez de Quijas v. Shearson/Am. Express, Inc., 490 U.S. 477, 484, 109 S. Ct. 1917, 104 L. Ed. 2d 526 (1989)). Adhering to this well-settled principle, the Ninth Circuit has confirmed that the Supreme Court has chosen not to overrule Almendarez-Torres “and [instead has] unmistakably carved out an exception for 'prior convictions.’ ” United States v. Pacheco-Zepeda, 234 F.3d 411, 414 (9th Cir. 2000) (quoting Apprendi, 530 U.S. at 488-92), cert. denied, 532 U.S. 966 (2001).¹⁴

¶48 Similarly, in 2003 our Supreme Court definitively held that neither the United States Constitution nor the Washington Constitution requires a jury, rather than a judge, to find the existence of prior convictions beyond a reasonable doubt. State v. Smith, 150 Wn.2d 135, 143, 156, 75 P.3d 934 (2003), cert. denied, 541 U.S. 909 (2004). Consistent with its holding in Smith, just two years ago, our Supreme Court declined to review our decision in State v. Rudolph,15 in which we also followed Almendarez-Torres in holding:

(1) existing case law does not give Rudolph the right to have a jury decide whether he is the same defendant who committed the crimes resulting in his prior convictions used as strike offenses to establish his persistent offender status under the POAA and, thus, subject him to life imprisonment without parole for his new crime; (2) identity is a fact so “intimately related to [the] prior conviction,” under [State v. ]Jones[, 159 Wn.2d 231, 149 P.3d 636 (2006)], as to be virtually inseparable from the finding of the existence of a prior conviction; (3) the Almendarez-Torres fact-of-the-prior-conviction exception to the Apprendi/Blakely jury-trial requirement necessarily includes identity; and (4) thus, Apprendi and Blakely do not require a jury to decide the identity component of the fact of a prior conviction. Therefore, the sentencing court may, as it did here, find by a preponderance of the evidence that the perpetrator of the present crime is the same person as the perpetrator of a prior crime used as a strike offense for POAA sentencing purposes.

State v. Rudolph, 141 Wn. App. 59, 71-72, 168 P.3d 430 (2007) (first alteration in original), review denied, 163 Wn.2d 1045 (2008).

¶49 Acknowledging that we cannot necessarily read anything definitive into either Supreme Court’s denial of review in Smith and Rudolph, we note that (1) both high courts declined a clear opportunity to “correct” these Almendarez-Torres-based holdings if they deemed them incorrect; and (2) these review declinations underscore the importance of the United States Supreme Court’s clear admonition to the lower courts not to speculate about evolutions in case law, to adhere to controlling law, and to leave to the Supreme Court “ ‘the prerogative of overruling its own decisions.’ ” Agostini, 521 U.S. at 237 (quoting Rodriguez de Quijas, 490 U.S. at 484).

¶50 Accordingly, we hold that the trial court did not violate McKague’s constitutional rights when the trial judge found the existence of McKague’s prior convictions by a preponderance of the evidence for purposes of the POAA.

B. Equal Protection

¶51 McKague next argues that the trial judge’s finding the existence of his prior convictions violated his equal protection rights under the Fourteenth Amendment to the United States Constitution and article I, section 12 of the Washington Constitution. He contends that it is “wholly arbitrary” to distinguish between (1) requiring a jury to find, beyond a reasonable doubt, the existence of a prior conviction when the prior conviction is an element of an offense; and (2) allowing a judge to find, by a preponderance of evidence, the existence of prior convictions when a defendant is sentenced as a “persistent offender” under RCW 9.94A.570. Br. of Appellant at 30-31. We disagree.

1. Standard of review

¶52 Under the Fourteenth Amendment and article I, section 12 of the Washington Constitution, persons similarly situated with respect to the legitimate purpose of the law must receive like treatment. State v. Manussier, 129 Wn.2d 652, 672, 921 P.2d 473 (1996) (citing State v. Schaaf, 109 Wn.2d 1, 17, 743 P.2d 240 (1987)), cert. denied, 520 U.S. 1201 (1997). A statutory classification that implicates physical liberty is not subject to the intermediate level of scrutiny under the equal protection clause unless the classification also affects a semisuspect class, which is not the case here. Thorne, 129 Wn.2d at 771 (citing Westerman v. Cary, 125 Wn.2d 277, 294-95, 892 P.2d 1067 (1994)). Rather, persons such as McKague, who are “persistent offenders” under RCW 9.94A.570, are neither a suspect nor a semisuspect class. Manussier, 129 Wn.2d at 673 (citing State v. Phelan, 100 Wn.2d 508, 514, 671 P.2d 1212 (1983)). Thus, McKague’s challenge to his life sentence imposed under the POAA is subject to rational basis review.

f 53 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. Schoonover v. State, 116 Wn. App. 171, 182, 64 P.3d 677 (2003) (citing DeYoung v. Providence Med. Ctr., 136 Wn.2d 136, 144, 960 P.2d 919 (1998)). The burden is on the party challenging the classification to show that it is “ ‘purely arbitrary.’ ” State v. Coria, 120 Wn.2d 156, 172, 839 P.2d 890 (1992) (quoting Omega Nat’l Ins. Co. v. Marquardt, 115 Wn.2d 416, 431, 799 P.2d 235 (1990)).

2. Reasonable grounds for distinguishing “classes”

¶54 McKague’s challenge falls under the second prong of the rational basis test. He argues that there is no reasonable ground to distinguish between (1) persons charged with an offense for which a prior conviction is an element of the offense and persons not charged with such offenses, and to whom the United States Constitution guarantees that a jury will find the prior conviction beyond a reasonable doubt;¹⁶ and (2) persons whose prior convictions are found to exist when they are sentenced as “persistent offenders” under RCW 9.94A.570 and who are entitled only to have a judge find the existence of their prior convictions by a preponderance of evidence.¹⁷ McKague argues that the State should afford both classifications of persons identical procedural safeguards when the trial court determines the person’s prior convictions because, for both classifications, the trial court determines prior convictions for the same purpose — to “punish [] the recidivist criminal more harshly.” Br. of Appellant at 29. This argument fails.

¶55 Our Supreme Court already has held that the State has a rational basis for distinguishing between “persistent offenders” and “nonpersistent offenders” under the POAA. See Manussier, 129 Wn.2d at 674; see also Thorne, 129 Wn.2d at 771-72. It is also well established that the weaker procedural safeguards given to “persistent offenders” during the fact-finding process of determining prior convictions do not violate any constitutional rights under Almendarez-Torres, Apprendi, or their progeny. See supra Analysis Part IV.A. Although McKague may disagree with our state legislature’s distinction between two classes of defendants and its decision to afford weaker procedural safeguards to one class, there is nothing unconstitutional about this practice under the current law. Thus, McKague’s equal protection challenge fails.

¶56 Both the United States Supreme Court and our Washington Supreme Court have expressly held that recidivist statutes such as the POAA are not constitutionally infirm, on due process, equal protection, or other grounds. Accordingly, McKague’s argument that the POAA violates the equal protection clause of the Fourteenth Amendment or article I, section 12 of the Washington Constitution fails.¹⁸

¶57 We affirm McKague’s convictions and POAA sentence.

Footnotes

1

U.S. Const. amends. VI, XTV; Wash. Const. art. I, § 12.

2

Various witnesses testified that McKague hit Chang 3 to 10 times; Chang testified that McKague hit him 6 times.

3

“The term occult fracture is used to describe an injury to bone that is clinically suspected, but cannot be identified on initial radiographs.” Lee F. Rogers, Mihra S. Taljanovic & Carol A. Boles, Skeletal Trauma, in Grainger & Allison’s Diagnostic Radiology ch. 46 (5th ed. 2008), available at http://www.mdconsult.com/das/book/ body/220337858-3/0/1611/50.html.

4

McKague argued that the evidence established only that he may have acted with criminal negligence (third degree assault), rather than recklessness (second degree assault), and, therefore, he was entitled to a third degree assault jury instruction.

5

Compare Clerk’s Papers (CP) at 48, with 11 Washington Practice: Washington Pattern Jury Instructions: Criminal 37.02, at 667-68 (3d ed. 2008) (WPIC) (first degree robbery); CP at 52, with 11A WPIC 70.11, at 59 (third degree theft); compare CP at 49, with 11 WPIC 35.13, at 471 (second degree assault); compare CP at 55, with 11 WPIC 35.24, at 503 (third degree assault).

6

The two prior strikes were for a second degree assault conviction on May 16, 1990, and first degree kidnapping and first degree robbery convictions on December 20, 1995.

7

RCW 9A.04.110(4)(b) does not provide a definition of “substantial”; accordingly, we turn to dictionary definitions to identify its common understanding. See, e.g., State v. Hacheney, 160 Wn.2d 503, 518, 158 P.3d 1152 (2007), cert. denied, 552 U.S. 1148 (2008). The dictionary defines “substantial” as “something having substance or actual existence,” “something having good substance or actual value,” “something of moment,” and “an important or material matter, thing, or part.” Webster’s Third New International Dictionary 2280 (2002).

8

A general understanding of the term “concussion” as it relates to brain injuries is “a jarring injury of the brain resulting in disturbance of cerebral function and sometimes marked by permanent damage.” Webster’s, supra, at 472 (emphasis added). Chang’s medical report suggests that concussions are accompanied by loss of consciousness. The Mayo Clinic states that concussions have a range of significance but all “temporarily interfere with the way your brain works” and “injure!] your brain,” even if not resulting in “a loss of consciousness.” Concussion: Definition, Mayo Clinic (Mar. 24,2009), http://www.mayoclinic.com/health/concussion/DS00320. Other major complications of a concussion may include “[p]ostconcussion syndrome,” a term briefly discussed in Chang’s medical files, which “causes concussion symptoms to last for weeks or months.” Concussion: Complications, Mayo Clinic, supra.

Furthermore, a history of a single concussion increases one’s risk of future concussions and doubles the risk for developing epilepsy within five years of brain injury. Concussion: Complications, Mayo Clinic, supra; Concussion: Risk Factors, Mayo Clinic, supra. In other words, a person who has suffered a concussion has suffered permanent bodily harm making him more vulnerable to future brain injury.

9

A jury instruction that creates a mandatory presumption improperly relieves the State of its burden to prove every element of the charged crime beyond a reasonable doubt, thus violating the defendant’s due process rights. See State v. Thomas, 150 Wn.2d 821, 844, 83 P.3d 970 (2004).

10

We further note that jury instruction on “recklessness” in McKague’s trial was based on the Washington Practice Series pattern instruction, which provides:

[When recklessness [as to a particular [result] [fact]] is required to establish an element of the crime, the element is also established if the person acts [intentionally] [or] [knowingly] [as to that [result] [fact]].]

11WPIC 10.03, at 209 (alterations in original); see also RCW 9A.08.010(2) (“When recklessness suffices to establish an element, such element also is established if a person acts intentionally or knowingly.”).

11

RAP 10.10.

12

Two additional cases, on which McKague and Judge Quinn-Brintnall’s concurrence/dissent rely, also affirm the rule of Almendarez-Torres. See Blakely v. Washington, 542 U.S. 296, 301, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004); see also Cunningham v. California, 549 U.S. 270, 282, 127 S. Ct. 856, 166 L. Ed. 2d 856 (2007).

13

State v. Thorne, 129 Wn.2d 736, 781-84, 921 P.2d 514 (1996).

14

Consistent with the concerns the Supreme Court voiced in Agostini, the Ninth Circuit noted that “Apprendi casts doubt on the continuing viability of Almendarez-Torres” and that “[i]f the views of the Supreme Court’s individual Justices and the composition of the Court remain the same, Almendarez-Torres may eventually be overruled.” Pacheco-Zepeda, 234 F.3d at 414. Nevertheless, the Ninth Circuit acknowledged that “such speculation” did not give it an excuse to ignore Almendarez-Torres and “[ujnless and until Almendarez-Torres is overruled by the Supreme Court, we must follow it.” Pacheco-Zepeda, 234 F.3d at 414 (citing Agostini, 521 U.S. at 237). With all due respect to our dissenting colleague here, we, too, must follow Almendarez-Torres so long as it remains the controlling authority.

15

Rudolph was a split decision, again, with Judge Hunt writing for the majority, joined by Judge Van Deren, and with Judge Quinn-Brintnall dissenting.

16

See Winship, 397 U.S. at 364; Roswell, 165 Wn.2d at 192.

17

See Apprendi, 530 U.S. at 490; Thiefault, 160 Wn.2d at 418.

18

McKague bases his equal protection challenge, in part, on Roswell, a POAA case that is inapposite. Roswell examines Apprendi’s holding that a jury must find, beyond a reasonable doubt, both the elements of a crime and any aggravating sentencing factors that increase the penalty for a crime above the statutory maximum. Roswell, 165 Wn.2d at 193 (citing Apprendi, 530 U.S. at 490). Roswell held that Apprendi permits a defendant who has pleaded guilty, or has been tried and convicted by a jury, to waive his right to jury fact finding for aggravating sentencing factors and, instead, to request that a judge find the aggravating sentencing factors. Roswell, 165 Wn.2d at 193 (citing State v. Hughes, 154 Wn.2d 118, 133-34, 110 P.3d 192 (2005), overruled on other grounds by Washington v. Recuenco, 548 U.S. 212, 222 n.4, 126 S. Ct. 2546, 165 L. Ed. 2d 466 (2006)). The Roswell court noted that RCW 9.68A.090(2) includes as an element of the crime of felony communication with a minor for immoral purposes the existence of a prior sexual felony conviction. In this situation the prior sexual felony conviction is not simply an aggravating sentencing factor. Therefore, if the defendant elects a trial by jury, the jury, not the judge, must find the existence of all elements of the crime beyond a reasonable doubt, including the prior sexual felony conviction element. Roswell, 165 Wn.2d at 194.