STATE v. BROWN (1998)

Natalie Brown was convicted of committing second degree assault while armed with a knife.   The State appeals the lower court's imposition of an exceptional sentence below the applicable deadly weapon enhancement.   Brown cross-appeals, claiming that juror misconduct during deliberations mandates a new trial.   Because the jury's allegedly improper experiment did nothing more than test Brown's self-defense claim with evidence admitted at trial, we uphold Brown's conviction.   We agree with the State, however, that the lower court's exceptional sentence was not authorized by the Sentencing Reform Act of 1981 (SRA).   Because Brown's sentence was shorter than the mandatory incarceration period for her deadly weapon enhancement, we reverse and remand for resentencing.

Natalie Brown was charged with second degree assault, with a special allegation that she had been armed with a deadly weapon.   Brown admitted that she had cut her former boyfriend's face with a folding knife, but she claimed self-defense.   The following facts were elicited at trial.

One evening in 1996, Brown went to Titan Cox's house, believing that he had sent an angry message to her friend's pager.   Amid a group of people that were gathered there, Brown confronted Cox and asked if they were still friends.   Cox walked away and lit a cigarette.   Brown claimed that when she pursued him, Cox blew cigarette smoke in her face and the atmosphere grew hostile.   Brown was confused and scared for her safety because Cox is big and always carried a knife.   She testified that Cox “had that annoyed look, and then I saw him roll his shoulder back like he was about to throw a punch.”   Brown testified that as Cox punched her in the shoulder, she reached into her trench coat pocket and grabbed a folding knife.   She claimed that she quickly opened the knife and cut Cox across the nose in self-defense.   Cox denied hitting Brown or being aggressive, claiming that she suddenly grabbed him without provocation and cut his face.   Cox suffered permanent scarring.

The jury found Brown guilty of second degree assault and returned a special verdict finding that she had been armed with a deadly weapon when she committed the offense.   Brown's presumptive standard range for the assault was three to nine months.   The sentencing court added a 12–month deadly weapon enhancement pursuant to RCW 9.94A.310(4)(b) to arrive at a total standard range of 15 to 21 months.   Granting the jury's unanimous request for leniency, the court imposed an exceptional sentence downward of seven months.

Brown moved for a new trial based on jury misconduct during deliberations.   She argued that the jurors had conducted an improper experiment by wearing Cox's coat, a trial exhibit, to test the difficulty of pulling Brown's knife out of the pocket and opening it as Brown had described.   The coat that Brown wore on the night of the incident had not been offered into evidence, but Cox had testified that it was the same type of duster as his coat.   Brown had also described their trench coats as matching.

Brown's motion for new trial was based upon an affidavit by one of the jurors.   At the hearing, defense counsel asserted that he had presented the affidavit to the court, but it is not in our record.   The lower court said that it had reviewed the parties' written submissions and denied Brown's motion for new trial.   It reasoned that no new extrinsic evidence had been introduced during the jury's deliberations.

We first address Brown's cross appeal, wherein she challenges the lower court's order denying a new trial based on jury misconduct.   The State argues that without the juror's affidavit, Brown has failed to make a sufficient record to review the issue on appeal.   It also argues that the jury's reenactment was proper because it did not create or introduce any new evidence.   Because the State does not dispute Brown's allegations of what occurred in the jury room, we hold that the record is sufficient to allow review.   But we reject Brown's claim that the jury's experiment amounted to misconduct, and we therefore affirm the lower court's refusal to order a new trial.

While the juror's affidavit is missing from our record, it appears that the defense produced it below.   The State did not object at the hearing when Brown's attorney stated that he had presented the affidavit to the court.   Moreover, the lower court made no reply when defense counsel said, “I trust the court's received that.”   In any event, the parties do not dispute what occurred in the jury room.   We thus accept Brown's version of the events and proceed to the merits of her argument.

A jury's consideration of information other than the evidence admitted at trial is misconduct that may warrant a new trial.   See State v. Balisok, 123 Wash.2d 114, 118, 866 P.2d 631 (1994).   Reliance on such novel or extrinsic evidence is improper because it is not subject to objection, cross examination, explanation, or rebuttal.  Balisok, 123 Wash.2d at 118, 866 P.2d 631.   The jury may use exhibits admitted in evidence, however, to critically examine a defendant's version of the events under a claim of self-defense.  Balisok, 123 Wash.2d at 119, 866 P.2d 631 (quoting State v. Everson, 166 Wash. 534, 536–37, 7 P.2d 603, 80 A.L.R. 106 (1932)).   We review the lower court's refusal to grant a new trial for abuse of discretion.   Balisok, 123 Wash.2d at 117, 866 P.2d 631.

In this case, both the coat and the knife that the jury used to reenact Brown's story had been admitted as exhibits at trial.   While the coat was the victim's, the evidence established that Brown had worn a similar duster.   At trial, Cox had used his coat to demonstrate how Brown had attacked him.   During cross examination, Brown's attorney and Cox reenacted the assault.   When Brown took the witness stand, she also demonstrated how the assault had occurred.

Brown concedes that if her coat had been introduced into evidence, the jury could have used it to conduct its experiment.   While Cox's coat may have been larger than Brown's, we presume that the jurors used their common sense and reasoning powers to compensate for this variable.   Accord, Balisok, 123 Wash.2d at 119, 866 P.2d 631 (jury's simulation of self-defense claim not misconduct merely because no juror matched the defendant's proportions).   We hold that Brown has failed to establish misconduct.   The jurors' reenactment was nothing more than a critical examination of Brown's self-defense theory with evidence that had been admitted at trial.   The lower court acted within its discretion by denying Brown's motion for new trial.   We thus affirm Brown's conviction.

We must next decide whether Brown's seven-month sentence is legally justified.   The State does not dispute that the lower court had a valid basis to impose an exceptional sentence below the presumptive range for Brown's underlying crime.   But it argues that Brown's 12–month deadly weapon enhancement is a mandatory minimum punishment from which the sentencing court had no discretion to deviate.   Brown responds that enhancements are added to and become part of the presumptive sentence range, from which the court has discretion to depart for compelling reasons.   While deadly weapon enhancements are added to the offender's presumptive range before sentence is imposed, we hold that the sentencing court has no discretion to deviate below the applicable enhancement period.   Because the lower court's sentence was shorter than Brown's mandatory one-year enhancement, we reverse and remand for resentencing.

The SRA establishes “presumptive sentencing ranges” based on the defendant's offender score and the offense's seriousness level.  RCW 9.94A.310(1).  When a jury makes a special finding that a felony offender was armed with a deadly weapon, certain “additional times shall be added to the presumptive sentence [.]”  RCW 9.94A.310(4).   We agree with Brown that deadly weapon enhancements are to be added to both ends of the underlying crime's sentencing range to arrive at a total standard range.   E.g., Washington Sentencing Guidelines Comm'n, Adult Sentencing Guidelines Manual, at I–16 (1997);  see also RCW 9.94A.370(1).

Brown suggests that once the total range is calculated, the court can deviate from it without limitation, given sufficient justification.   The court may impose a sentence below the “standard sentence range for the offense” if it finds substantial and compelling reasons justifying an exceptional sentence.   RCW 9.94A.120(2), .390(1).   But in 1995, the Legislature added the following language to the enhancement statute:  “Notwithstanding any other provision of law, any and all deadly weapon enhancements under this section are mandatory, shall be served in total confinement, and shall not run concurrently with any other sentencing provisions.”  RCW 9.94A.310(4)(e);  1995 Wash. Laws 129 (Initiative 159, Hard Time for Armed Crime Act).   We hold that this preemptive amendment changed the prior law and leaves courts with no discretion to deviate below the deadly weapon enhancement times.   Accord, State v. Fuller, 89 Wash.App. 136, 142, 947 P.2d 1281 (1997) (RCW 9.94A.310(4)(e) takes precedence over exceptional sentence provisions, precluding home detention for enhancement term);  see also State v. Lewis, 86 Wash.App. 716, 718–19, 937 P.2d 1325, review granted, 134 Wash.2d 1007, 954 P.2d 276 (1997) (because RCW 9.94A.310(4)(e) applies “[n]otwithstanding any other provision of law[,]” it supersedes provisions of RCW 9.94A.400 allowing concurrent sentences);  State v. Fast, 90 Wash.App. 952, 954 P.2d 954 (1998)

The goal of statutory interpretation is to determine the Legislature's intent, and all provisions of an act must be considered in relation to each other.   E.g., State v. Joswick, 71 Wash.App. 311, 315, 858 P.2d 280 (1993).   Brown claims that we should not interpret the deadly weapon enhancements as mandatory sentences because the only express limitations on the court's discretionary power to impose exceptional sentences are contained in another statute.  RCW 9.94A.120(4) sets forth mandatory “minimum terms of total confinement” for a number of especially egregious crimes.   Second degree assault is not included in that list.   But a sentence enhancement is separate and distinct from the sentence range for the underlying offense.   E.g., State v. Silva–Baltazar, 125 Wash.2d 472, 474, 886 P.2d 138 (1994).   Thus, the fact that RCW 9.94A.120(4) expressly limits the court's discretion to impose exceptional sentences for certain crimes does not preclude the Legislature from expressing similar restrictions in the enhancement provisions.

RCW 9.94A.120(4) also expressly limits the court's sentencing discretion in cases involving persistent offenders.   Brown argues that since this provision's drafters also drafted the Hard Time for Armed Crime Initiative, their failure to include sentencing enhancements in RCW 9.94A.120(4)'s list shows their intent to preserve discretion to impose exceptional sentences for enhancements.   But while adding enhancements to RCW 9.94A.120(4)'s minimum confinement provisions would have clearly established the Legislature's intent to remove judicial discretion, we conclude that the drafters of RCW 9.94A.310(4)(e) effectively accomplished that result.   The related text upon which Brown relies does not affect RCW 9.94A.310(4)(e)'s specific language that the deadly weapon enhancements are mandatory and shall be served in confinement.

If a sentencing provision is reasonably subject to differing interpretations, we adopt that interpretation most favorable to the criminal defendant.   See State v. Roberts, 117 Wash.2d 576, 586, 817 P.2d 855 (1991).   But we see no ambiguity in RCW 9.94A.310(4)'s deadly weapon enhancement provisions.   We reject Brown's argument that the court may deviate from the enhancement terms and that the word “mandatory” only modifies the statute's requirements that the time be served in total confinement and not run concurrently with other sentencing provisions.  RCW 9.94A.310(4)(e).   The statute begins by providing that enhancements shall be added to the presumptive sentence.  RCW 9.94A.310(4).   The enhancements have thus always been mandatory in the sense that they must be included in an offender's presumptive range.   The more specific amendment clarifies that, notwithstanding any other provision of law, the full enhancement terms are mandatory.  RCW 9.94A.310(4)(e).   If this added language is to have any substance, it must mean that courts may not deviate from an enhancement's term of confinement.

The lower court properly added the deadly weapon enhancement to Brown's presumptive sentence range for the underlying offense to arrive at a total standard range.   Once this total range was calculated, the court retained discretion to impose an exceptional sentence for compelling reasons.   But its discretion to deviate downward was limited by the provision that deadly weapon enhancements are “mandatory” and “shall be served” in confinement.  RCW 9.94A.310(4)(e).   Brown's argument to the contrary is appealing.   But as much as we would like to preserve judicial discretion in sentencing, the Legislature clearly intended that an offender's sentence may not be reduced below the times specified in RCW 9.94A.310(4).   In other words, if the court chooses to impose an exceptional sentence downward, it must at least impose the full mandatory enhancement.   This interpretation best serves the legislative intent that crimes committed with deadly weapons be harshly punished.   The lower court acted without authority by imposing a sentence of less than 12 months in this case.

We affirm Brown's conviction but reverse and remand for resentencing.

COLEMAN, Judge.

KENNEDY, C.J., and ELLINGTON, J., concur.