Opinion
No. 59403-6-I.
August 4, 2008.
Appeal from a judgment of the Superior Court for King County, No. 06-1-03572-7, Laura C. Inveen, J., entered January 5, 2007.
Affirmed by unpublished per curiam opinion.
Katrin Zeksel appeals her exceptional sentence based on the aggravating factor of particular victim vulnerability. She contends that the trial court's instruction on the aggravating factor failed to properly define particularly vulnerable victim, impermissibly commented on the evidence, and was unconstitutionally vague. She further argues that the trial court erred by finding that a standard range sentence was "clearly too lenient" because it was not a determination by the jury and was based on facts not presented to the jury. Because the undisputed evidence established the victim's particular vulnerability and the trial court's findings in support of the exceptional sentence were based on the jury's finding of this aggravating factor, we affirm.
FACTS
Zeksel met Carla Santistevan when they were living at the same apartment complex. Santistevan was both physically and mentally disabled, and the Department of Social and Health Services (DSHS) determined that she needed a caretaker for many basic functions of her daily life. According to Zeksel, Santistevan functioned on "an elementary school level." Santistevan lived on a limited income, supporting herself with social security disability payments and also received subsidized housing from the federal housing program. The two became friends, and Santistevan trusted Zeksel and believed she was a "good person." Eventually they agreed that Zeksel should become Santistevan's official caregiver. Sometime later, Zeksel and her daughter moved into Santistevan's apartment, which violated Santistevan's housing benefit requirements. Shortly after, Zeksel's boyfriend and mother also moved into the apartment. Zeksel also persuaded Santistevan to co-sign for a cellular phone contract. The account eventually became delinquent, and the phone company pursued collections against Santistevan. According to Santistevan, at this point things seemed to be going "upside down."
In December 2003, Zeksel received a paycheck for her job at Lake Washington Technical College. The college also mistakenly sent her a paycheck in the amount of $544.30 for another employee, Gabriel Zubillaga. Zeksel told Santistevan that she received a bonus from her employer and wanted to deposit it in Santistevan's bank account. Zeksel then went to the bank, wrote "pay to the order of Santistevan, Carla" on Zubillaga's paycheck and deposited it into the account. She then asked Santistevan for $300 from her bank account and threatened to pawn Santistevan's computer if she did not give her the money. The bank that issued the paycheck refused to honor the forged check, and Santistevan's bank peformed a "charge back" on her account, which involved withdrawing the amount of the check from her account.
DSHS later reported to police that Santistevan's appointed caregiver had moved in with her, putting her housing benefits at risk, and was borrowing money from her and failing to pay it back. After investigating further, police learned about the forged check. The State then charged Zeksel with one count of forgery.
Before trial, the State amended the information to allege as an aggravating factor that Zeksel "knew or should have known that the victim of the current offense Carla Santistevan was particularly vulnerable or incapable of resistance." This allegation was charged under RCW 9.94A.535(3)(b), which requires that aggravating sentencing factors not involving the defendant's criminal history must be charged in the information and proved to a jury beyond a reasonable doubt. Zeksel did not object to the amended information.
The trial court gave the jury a special verdict form on the aggravating factor. On that form, the court asked jurors to answer the following question if they found Zeksel guilty of forgery:
Did the defendant Katrin Igor Zeksel know, or should she have known, that a victim of the current offense, Carla Santistevan, was particularly vulnerable or incapable of resistance at the time of the commission of the crime?
Zeksel did not object or seek to clarify this form nor did she propose any instructions defining "particularly vulnerable."
The jury found Zeksel guilty of forgery and answered "yes" on the special verdict. Her standard range was 0-60 days, and the State requested an exceptional sentence of 120 days in jail. The trial court imposed a sentence of 75 days, ordering that two days be served in the King County jail and the remaining 73 to be served on electronic home detention.
Zeksel appeals. The State moved to dismiss her appeal, contending that it was moot because all the issues raised pertained to her sentence, which she has already served in its entirety. A commissioner denied the motion to dismiss, and the State moved to modify the commissioner's ruling. We denied the motion to modify and now address the merits of the appeal.
DISCUSSION
I. "Particularly Vulnerable Victim" Aggravating Factor
Zeksel challenges the trial court's special verdict form asking the jury to determine whether the State established that Santistevan was a "particularly vulnerable victim." She argues that the trial court omitted an element of this aggravating factor, that the trial court impermissibly commented on the evidence by stating that Santistevan was a victim and that the court's definition of "particularly vulnerable victim" was unconstitutionally vague. She argues that these errors require reversal of her sentence.
A. Definition
Zeksel first contends that the trial court erred by failing to properly define "particularly vulnerable victim" in its instructions to the jury. Specifically she argues that the special verdict form failed to require that the jury find that the victim's vulnerability must have been a substantial factor in the commission of the crime. While she did not object to the special verdict form at trial, she asserts an error of constitutional magnitude that we may consider for the first time on appeal.
See State v. LeFaber, 128 Wn.2d 896, 900, 913 P.2d 369 (1996) (trial court's failure to correctly, accurately, and completely convey the necessary legal standard in its jury instructions, is an error of constitutional magnitude that is presumed prejudicial).
When an aggravating factor is used to increase the available punishment for a crime, that factor becomes an element of the offense that must be proved to the jury beyond a reasonable doubt. To prove a victim's vulnerability as an aggravating factor justifying an exceptional sentence, the State must show (1) that the defendant knew or should have known, (2) of the victim's particular vulnerability, and (3) that vulnerability must have been a substantial factor in the commission of the crime.
Ring v. Arizona, 536 U.S. 584, 609, 122 S. Ct. 2428, 153 L. Ed. 2d 556 (2002); Blakely v. Washington, 542 U.S. 296, 302 n. 5, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004).
State v. Suleiman, 158 Wn.2d 280, 291-92, 143 P.3d 795 (2006).
Here, the special verdict form only asked the jury to decide whether Zeksel knew or should have known that Santistevan was particularly vulnerable or incapable of resistance; it did not require the jury to determine whether that vulnerability must have been a substantial factor in the commission of the crime. The State concedes that the instruction erroneously omitted this third factor but contends that this error was harmless. We agree.
A jury instruction that omits or misstates an element of a crime is erroneous, but may be harmless if from the record, it appears beyond a reasonable doubt that the error did not contribute to the verdict. When an element is omitted from or misstated in a jury instruction, the error is harmless if supported by uncontroverted evidence. Thus, we must examine the record before us to determine whether beyond a reasonable doubt the jury verdict would have been the same absent the error. If we conclude that the omitted element was uncontested and supported by overwhelming evidence, the erroneous instruction is harmless.
State v. Brown, 147 Wn.2d 330, 341, 58 P.3d 889 (2002).
Id.
Neder v. United States, 527 U.S. 1, 17, 119 S. Ct. 1827, 144 L. Ed. 2d 35 (1999).
Here, the undisputed evidence was that Santistevan was both physically and mentally disabled, that her judgment and decision-making capabilities were impaired, that she relied on Zeksel to assist her with many basic daily activities, and trusted her to the extent that she was willing to allow Zeksel to jeopardize her housing benefits. It was also undisputed that Zeksel did not have a bank account of her own. A jury could find beyond a reasonable doubt from these facts that Santistevan's vulnerability was a substantial factor in the commission of the crime. It was precisely that vulnerability which allowed Zeksel to obtain Santistevan's bank account information and pass the forged check by depositing it into the account.
Zeksel also contends that the trial court's failure to define "particularly vulnerable victim" is "especially troubling" because the State's witnesses testified that Santistevan qualified as a vulnerable adult under the statutory definition. While not altogether clear, her argument appears to be that this testimony might have confused the jury about the "particular vulnerable victim" aggravating factor, which is different from the statutorily defined "vulnerable adult." But as the State points out, Zeksel did not object to this testimony and fails to show how this demonstrates prejudice. As discussed above, even without this testimony, the undisputed evidence established that Santistevan was a particularly vulnerable victim.
B. Comment on the Evidence
Zeksel further argues that the trial court impermissibly commented on the evidence because the special verdict form presupposed that Santistevan was a victim of a crime, which was a question for the jury. While Zeksel did not raise this issue in the trial court, an error alleging that the court commented on the evidence is an error of constitutional magnitude. Accordingly, we consider it for the first time on appeal
Article IV, section 16 of the Washington Constitution prohibits judicial comments on the evidence.
As defined by statute, a "victim" is a person who suffers a loss, physical, emotional, or financial, as a direct result of the offense of conviction. Zeksel contends that because the forged check was not Santistevan's to begin with, she suffered no loss when the bank imposed a "charge back" on her account after the check was not honored by the issuing bank. Thus, she contends, Santistevan was not a victim and it was an improper comment on the evidence for the court to state that she was in its special verdict form. The State argues that any comment on the evidence was harmless error because no rational juror could have concluded that Santistevan was not a victim based on the evidence produced at trial. We agree.
"[A]ny remark that has the potential effect of suggesting that the jury need not consider an element of an offense could qualify as judicial comment." A judicial comment on the evidence is presumed prejudicial, and the State must show "that the defendant was not prejudiced, unless the record affirmatively shows that no prejudice could have resulted."
State v. Levy, 156 Wn.2d 709, 721, 132 P.3d 1076 (2006).
Id. at 725.
The State contends that Santistevan suffered a financial loss when the bank imposed the "charge back," because she was deceived into believing the check was good and withdrew funds based on that belief. Indeed, Zeksel demanded that she withdraw that money and threatened her if she did not. Thus, the State argues, based on Zeksel's fraudulent representation, Santistevan withdrew more money than she actually had in the account and then suffered a financial loss when the check was ultimately dishonored. But the record does not establish that Santistevan did in fact withdraw the money for Zeksel; she testified only that Zeksel threatened her if she did not.
We find more persuasive the State's argument that Santistevan also suffered emotional injury as a result of the forgery. As discussed above, without the exploitation of her trust, the crime would not have been possible. Indeed, Santistevan testified that she felt that Zeksel exploited her trust and was now afraid of her. This evidence was undisputed and supports a finding that Santistevan was a victim. Any erroneous comment on the evidence of this fact in the special verdict form was therefore harmless.
C. Vagueness
Zeksel also contends that the trial court's incomplete definition of "particularly vulnerable victim" was unduly vague and therefore violated due process and the constitutional protections against cruel and unusual punishment. The State argues that because Zeksel did not propose any instructions further defining or clarifying the aggravating factors, she waives review of these claims. We agree.
Courts employ the vagueness analysis to ensure that ordinary people can understand what conduct is proscribed and to protect against arbitrary enforcement of law. As we observed in Whitaker: "This rationale applies to statutes and official policies, not to jury instructions. Unlike citizens who must try to conform their conduct to a vague statute, a criminal defendant who believes a jury instruction is vague has a ready remedy: proposal of a clarifying instruction." In Whitaker, we held that the defendant's failure to propose a definition of an aggravating factor precluded review of his claim that the undefined term was unconstitutionally vague. Likewise here, Zeksel's failure to propose any instructions clarifying the meaning of "particularly vulnerable victim" precludes review of her vagueness claim.
State v. Whitaker, 133 Wn. App. 199, 233, 135 P.3d 923 (2006), review denied, 159 Wn.2d 1017 (2007), cert. denied, 128 S. Ct. 375 (2007).
State v. Whitaker, 133 Wn. App. 199, 135 P.3d 923 (2006), review denied, 159 Wn.2d 1017 (2007), cert. denied, 128 S. Ct. 375 (2007).
Id.
II. "Clearly Too Lenient" Finding
Finally, Zeksel challenges the trial court's finding that the standard range sentence was "clearly too lenient." She argues that this was a determination for the jury and was based on facts not presented to the jury.
A finding of particular victim vulnerability is an aggravating factor that may justify an exceptional sentence. A jury must determine that the State has proved the aggravating factor, but the trial court retains the discretion to impose either a standard range or exceptional sentence based on that factor. The trial court's role is limited to determining whether the facts proven at trial present substantial and compelling reasons for a sentence greater than the standard range. But a trial court may not make a factual determination that allowing a current offense to go unpunished is "clearly too lenient."
State v. Hughes, 154 Wn.2d 118, 140, 110 P.3d 192 (2005), overruled in part on other grounds by Washington v. Recuenco, 548 U.S. 212, 126 S. Ct. 2546, 165 L. Ed. 2d 466 (2006). The legislature has since removed the "clearly too lenient" standard from this aggravating factor. RCW 9.94A.535(2)(c).
Zeksel concedes that a "clearly too lenient" finding does not apply here and is not one the trial court must make before imposing an exceptional sentence based on particular victim vulnerability. But she contends that the trial court "perceived it as a requirement of the sentence" and relied on the prosecutor's unsworn allegations in its decision to impose an exceptional sentence. The trial court's findings and conclusions in support of the exceptional sentence do not support this contention. Rather, they explicitly state that the court based the exceptional sentence on the jury's special verdict finding.
In its findings of fact, the court states that the jury found by special verdict that Santistevan was particularly vulnerable or incapable of resistance at the time of the crime's commission and that the State "maintains that imposition of a sentence within the standard range would be clearly too lenient in light of the purposes of the SRA as set forth in RCW 9.94A.010." The court further found:
The court could impose an exceptional sentence based on any one of the enumerated bases for doing so under the authority of RCW 9.94A.535, but the jury's finding that the defendant Katrin Igor Zeksel knew, or should have known, that a victim of a current offense, Carla Santistevan, was particularly vulnerable or incapable of resistance at the time of the commission of the crime applies in this case and provides a basis for an exceptional sentence.
In its conclusions of law, the court then ruled:
The facts proved at trial and the Special Verdict found by the jury provide a substantial and compelling reason to depart from the presumptive range. . . .
The court specifically finds that, because of the particular vulnerability or incapability of the resistance of the victim in this case, which were known to defendant or should have been known, a sentence within the standard range would result in a sentence that is clearly too lenient in light of the purposes of the SRA, as expressed in RCW 9.94A.010, absent the imposition of an exceptional sentence.
Thus, the trial court properly ruled that the jury's special verdict finding was a substantial and compelling reason to impose an exceptional sentence. The court's additional finding under the inapplicable "clearly too lenient" standard was superfluous and does not provide a basis for reversal. Nor did the trial court rely on additional facts not proven at trial: its findings explicitly state the basis for the sentence was the jury's finding of particular victim vulnerable and do not refer to any additional facts presented by the State at sentencing.
We affirm the sentence.