STATE of Washington, Respondent, v. Brian Lee BENEFIEL, Petitioner.
Decided: September 24, 2002
RULING DENYING REVIEW
Brian Benefiel struck Brandon Smith with a shotgun, and in an ensuing struggle over the gun, Mr. Smith was shot in the leg, resulting in serious, permanent injuries. The State charged Mr. Benefiel with first degree assault and first degree burglary. The jury acquitted Mr. Benefiel of burglary and first degree assault, but as to the assault charge, it found him guilty of the lesser included offense of second degree assault. The trial court imposed an exceptional sentence based on the severity of the injuries that Mr. Smith sustained. On accelerated review, the Court of Appeals affirmed the sentence in a published opinion. State v. Benefiel, 111 Wash.App. 789, 46 P.3d 808 (2002). Mr. Benefiel now seeks this court's discretionary review. RAP 18.15(g); RAP 13.5.
Mr. Benefiel argues the trial court's reliance on the severity of the injuries to justify an exceptional sentence violates the “real facts” doctrine. That doctrine prohibits a court from relying on facts that constitute the elements of a more serious crime that the State did not charge or prove. State v. Wakefield, 130 Wash.2d 464, 475-76, 925 P.2d 183 (1996). Mr. Benefiel contends that the severity of Mr. Smith's injuries constitutes an element of first degree assault and therefore may not be relied on to impose an exceptional sentence for second degree assault. But the severity of the injuries alone does not establish the elements of first degree assault. That crime occurs only if the assault is committed with intent to inflict great bodily harm. RCW 9A.36.011(1). That intent distinguishes first degree assault from second degree assault. State v. Morreira, 107 Wash.App. 450, 459, 27 P.3d 639 (2001). The trial court here acknowledged that the jury may have found that the shooting was accidental. By citing only the severity of the injuries, the court did not rely on facts that established the crime of first degree assault.
In sum, the Court of Appeals did not err in affirming the exceptional sentence. The motion for discretionary review is therefore denied.
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