State Of Washington, Respondent vs. Seon Leward Graham, Appellant

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON,
Respondent,
v.
SEAN LAWARD GRAHAM,
Appellant.
No. 73107-6-1
DIVISION ONE 	s 	3§
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UNPUBLISHED OPINION 	rv> 	°>1en 	jET,r
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FILED: April 25,2016 	co 	g£
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Trickey, A.C.J. — Sean Graham appeals his convictions for one count of
first degree assault and three counts of custodial assault. 	He argues the trial
court abused its discretion when it denied his motion for mistrial after a witness
referred to his cell block as a "disciplinary unit." 	He also contends his exceptional
sentence is improper because the State failed to present sufficient evidence to
support the aggravating factor of particular vulnerability and 	that the statute
permitting this factor is unconstitutionally vague.
Because the allegedly prejudicial comments did not warrant a mistrial, we
conclude the trial court did not abuse its discretion when it denied the motion.
Further, the record shows the State presented sufficient evidence to support the
aggravating factor, 	and 	Graham's vagueness challenge fails. 	We affirm the
judgment and sentence.
FACTS
In January 2011, Sean Graham was an inmate at King County's Maleng
Regional Justice Center in Kent, Washington. 	Graham was held in "Nora East,"
a 	segregation 	unit—also 	known 	as 	solitary 	confinement—in 	which 	inmates

No. 73107-6-1/2
remain in individual cells for 23 hours per day, and are allowed out for one hour
to bathe, make phone calls, receive visits, exercise, and do other activities.1 	On
January 9, 2011, Corrections Officer Gil Letrondo was on duty in Nora East when
officers 	performed 	a 	security 	check of the 	cells. 	One officer 	discovered
contraband food in Graham's cell. 	The sergeant on duty determined the food
constituted a rule infraction and decided that Graham would lose his hour out of
his cell the following day.
On January 10, Letrondo told Graham that he had lost his hour out that
day. 	Letrondo testified that this made Graham "very mad."2 	Graham called
Letrondo a "pussy motherfucker," and said, "Let me out. 	I'll beat you up and kill
you."3
On January 11, the next day, Officer Michael Wells was monitoring Nora
East while Graham was outside of his cell. 	Letrondo arrived to relieve Wells for a
15-minute break. 	Wells asked Letrondo if Graham should go back into his cell,
but Letrondo declined, stating he "didn't want to aggravate the situation."4 	Wells
left Letrondo to monitor Nora East for approximately 12 minutes. 	After Wells
returned, 	he and 	Letrondo 	stood 	at a 	central 	officer 	counter 	discussing 	a
12 Report of Proceedings (RP) (Nov. 3, 2014) at 52; 10 RP (Nov. 18, 2014) at 36.
Consistent with the parties, the verbatim report of proceedings are numbered as follows:
1RP (Oct. 30, 2014); 2RP (Nov. 3, 2014); 3RP (Nov. 4, 2014); 4RP (Nov. 5, 2014); 5RP
(Nov 	10 2014); 6RP (Nov. 12, 2014—opening statements); 7RP (Nov. 12, 2014); 8RP
(Nov 	13 	2014); 9RP (Nov. 17, 2014); 10RP (Nov. 18, 2014); 11RP (Nov. 24, 2014);
12RP (Nov 	25, 2014); 13RP (April 11, 2011 through Dec. 28, 2011); 14 RP (March 7,
2012 through Nov. 27, 2012); 15RP (Feb. 27, 2013 through Dec. 4, 2013); 16RP (March
17, 2014 through April 9, 	2014—competency hearing); 	and 	17RP (Jan. 	9, 2015—
sentencing).
210 RP (Nov. 18, 2014) at 129.
310 RP (Nov. 18, 2014) at 129-30.
4 10RP(Nov. 18, 2014) at 132.

No. 73107-6-1/3
computer issue. 	Wells glanced down at a logbook. When he looked up, he saw
Graham approximately two feet away from Letrondo, "moving very fast towards
him."5
Graham struck Letrondo in the temple area with a closed fist. 	Letrondo
stumbled back four or five steps. Wells hit Graham in the face and made a "code
blue" distress call on his radio.6 	Graham ran over to Letrondo and hit him a
second time, and Letrondo stumbled and fell against the back wall. 	Letrondo fell
to the floor and stopped moving. 	He appeared to be unconscious.
Wells rushed over and exchanged blows with Graham. 	Graham struck
Wells in the jaw, 	knocking 	him 	backwards briefly. 	While Wells was dazed,
Graham stomped on Letrondo, who was still motionless on the floor:
At that point, inmate Graham ran over and started jumping
up and down on top of Officer Letrondo, stomping on the upper part
of his body here around the neck and head area.
He was jumping in the air as high as he could and stomping
down with one foot on top of him.[7]
Letrondo never moved while this occurred. 	Wells reengaged with Graham and
got him off Letrondo. 	Wells and three other officers eventually subdued Graham
and placed him in a holding cell down the hall in another part of the jail.
Other officers responded to Letrondo, who was lying motionless on the
floor with a pool of blood around his head. 	Letrondo exhibited labored breathing
and could 	not speak. 	He 	had 	memory problems and could 	not identify the
510 RP (Nov. 18, 2014) at 49.
610 RP (Nov. 18, 2014) at 53.
7 10RP(Nov. 18, 2014) at 55.

No. 73107-6-1/4
president or recall where he was. 	He spent three days at Valley Medical Center,
where doctors discovered injuries to Letrondo's face, chest, and the back of his
head. A CT (computed tomography) scan revealed internal bleeding around his
brain. 	Letrondo later required nose surgery, 	and 	he suffered from 	memory
problems for years following the incident. 	He never returned to work.
The State charged Graham by first amended information with one count of
first degree assault with two aggravating factors, four counts of custodial assault,
and 	one 	count of harassment. 	Count 1 alleged 	that 	on January 11, 2011,
Graham assaulted Letrondo with intent to inflict great bodily harm and with force
and means likely to produce great bodily harm or death. 	The first aggravating
factor 	alleged 	that Graham 	knew or should 	have 	known 	that 	Letrondo was
particularly 	vulnerable 	or 	incapable 	of 	resistance, 	and 	that 	Letrondo's
vulnerability was a substantial factor in the commission of the offense. 	The
second aggravating factor alleged that Graham committed the offense against a
law enforcement officer who was performing his official duties at the time of the
offense. 	Counts 2 through 5 alleged that Graham intentionally assaulted Officers
Michael Wells, Marcial Williamson, Michael Allen, and Timothy Wright. 	Count 6
alleged that Graham threatened Corrections Officer Sharon Coleman with bodily
harm.
The State agreed to sever count 6 and continued to trial on counts 1
through 5. 	The jury convicted 	Graham on counts 1 through 4, finding 	both
aggravating factors in count 1. 	The jury acquitted Graham on count 5—custodial
assault of Timothy Wright. 	Following the trial, the State dismissed count 6.
4

No. 73107-6-1/5
The court imposed an exceptional sentence of 301 months on count 1,
which included the high end of the standard range for assault in the first degree
with an offender score of 8 plus 12 additional months per aggravating factor. 	The
court imposed standard-range terms of 43 months each on counts 2 through 4, to
run concurrently with count 1. Graham appeals.
ANALYSIS
Mistrial
Graham argues the trial court abused its discretion when it denied his
motion for a mistrial after a State witness violated the trial court's motion in limine
by indicating that Graham occupied a segregated unit intended for "ultra security"
inmates with disciplinary violations.8
During 	motions 	in 	limine, 	the State sought the court's 	permission 	to
discuss Graham's custody status. The State wanted to explain that Nora East
was an area designated for "administrative segregation" for "inmates who have
had disciplinary problems."9 	The State argued the circumstances surrounding
Graham's custody were relevant to explain the physical layout of the area where
the crime occurred and the unique policies affecting inmates residing in Nora
East—namely, that they are permitted outside of their solitary cells for only one
hour each day.
87RP(Nov. 12, 2014) at 42.
92RP(Nov. 3, 2014) at 50.

No. 73107-6-1/6
The court agreed with the State, 	but noted 	its concern that testimony
regarding Nora East could imply that the inmates in that unit exhibit a propensity
for violence:
Well, it's clearly relevant, what the layout of the area was,
where the incident occurred, that there's limited access to common
areas, limited access to the cells, that it's not an open pod, the one-
hour rule. 	All that is clearly relevant.
My 	concern 	is 	saying 	that 	he 	was 	in an 	administrative
segregation does strongly imply that's because of prior disciplinary
problems, which 	could 	lead the 	jury to 	infer 	a 	propensity for
violence.[10]
The court reserved ruling on the issue and told the parties to propose a solution
for how to refer to Nora East:
Maybe you and [defense counsel] could talk about that. So
I'm going to reserve on that, whether this is going to be referred to
as administrative segregation or a segregated unit. 	Clearly, the
layout, the rules, that's all important. 	The label can be problematic.
So if the two of you can't work something out, I'm happy to have
you bring it back to me and I'll decide.1111
Neither party raised the issue again for a specific ruling.
Officer John 	Hurt, a 	witness 	for the 	State, 	made 	several 	comments
prompting Graham to move for a mistrial. 	When describing 	Nora East, 	Hurt
stated that it "was primarily a disciplinary unit."12 	Graham did 	not object.
Moments later, Hurt made a similar comment: "Nora East it—like I said, it was a
disciplinary or. . . ."13 Again, Graham did not object.
10 2 RP (Nov. 3, 2014) at 52-53.
11 2 RP (Nov. 3, 2014) at 56.
12 7 RP (Nov. 12, 2014) at 10.
13 7 RP (Nov. 12, 2014) at 11.

No. 73107-6-1/7
The 	court 	on 	its 	own 	called 	for 	a 	recess. 	Referring 	to 	the 	earlier
discussion during motions in limine, the court told the State that witnesses should
avoid discussing disciplinary issues and instead use the term "segregated unit":
The witness twice said "disciplinary unit," and I thought I was
pretty clear in the motions in limine, witnesses are not to testify to
that. 	I think I said they could use the term "segregated unit," but
nothing about discipline.[14]
The prosecutor responded that he had discussed that issue with witnesses. He
further noted that any prejudice at that time was minimal because the parties had
already discussed that "Nora East is a unit where inmates are locked up for 23
hours out of every day, and anybody with common experience . . . knows that
that is 	suggestive 	of what 	might 	be 	referred 	to 	colloquially 	as 	'solitary
confinement.'"15
Defense counsel told the court that, prior to Hurt's testimony, he sent an e-
mail to every witness reminding them not to testify "about the status of Nora East
or why people are put in Nora East."16 The court reminded the witness to use the
term "segregated unit" rather than "disciplinary unit."17 	After Hurt's testimony
continued, 	he 	referred 	to 	Graham 	as 	a 	"high 	security 	inmate": 	"I 	actually
transported him, myself and Officer Lang, to the King County Jail . . . where he
was made a[n] ultra security inmate . . . ."18 	Graham objected and moved to
14 7 RP (Nov. 12, 2014) at 12.
15 7 RP (Nov. 12, 2014) at 12.
16 7 RP (Nov. 12, 2014) at 14.
17 7 RP (Nov. 12, 2014) at 13.
18 7 RP (Nov. 12, 2014) at 41-42.

No. 73107-6-1/8
strike the statement. 	The court sustained the objection and instructed the jury to
disregard Hurt's comment.
During a recess before Hurt's cross-examination, Graham 	moved for a
mistrial based on Hurt's statements:
Your 	honor, 	at 	this 	point, despite 	repeated 	warning, 	this
witness feels compelled to mention or discuss, despite any lack of
questioning that would elicit this, Mr. Graham's security status, and,
most recently that he was transferred to the King County Jail for the
completely irrelevant reason that he was being transferred to an
ultra security status.
Your honor, I feel compelled to make a motion for a mistrial
at this point. 	This witness has flagrantly violated the court's pretrial
orders.[19]
The court denied the motion, concluding that Hurt's comments did not deprive
Graham of a fair trial:
I don't find 	that—as 	a 	result 	of this 	comment, 	that 	Mr.
Graham can no longer get a fair trial. 	It doesn't rise to the level of
that.
There's been testimony about solitary confinement. 	I think
any reasonable juror would probably infer that after the incident, as
described by the witness, that Mr. Graham would 	be going into
some sort of more secure situation.
I wjn—i sustain the objection, I struck the comment, I'll offer
a curative instruction, if one is recommended by defense.1201
Defense never sought a curative instruction.
Graham argues Hurt's testimony was so prejudicial it deprived him of a fair
trial. 	He contends the trial court abused its discretion when it declined to grant
his motion for a mistrial.
19 7 RP (Nov. 12, 2014) at 43.
20 7 RP (Nov. 12, 2014) at 45-46.

No. 73107-6-1/9
We review a trial court's denial of a motion for mistrial for an abuse of
discretion. 	State v. Mak, 105 Wn.2d 692, 701, 719, 718 P.2d 407 (1986). 	Atrial
court abuses its discretion only "when no reasonable judge would have reached
the same conclusion." 	Sofie v. Fibreboard Corp., 112 Wn.2d 636, 667, 771 P.2d
711 (1989). 	"The trial court should grant a mistrial only when the defendant has
been so prejudiced that nothing short of a new trial can insure that the defendant
will be tried fairly. 	Only errors affecting the outcome of the trial will be deemed
prejudicial." 	Mak, 105 Wn.2d at 701. 	In determining whether a trial irregularity
caused such prejudice as to require a mistrial, we examine (1) its seriousness,
(2) whether it 	involved 	cumulative evidence, 	and 	(3) 	whether the trial court
properly instructed the jury to disregard it. 	State v. Hopson, 113 Wn.2d 273, 284,
778 P.2d 1014 (1989). 	We conclude the trial court acted within its discretion
when it denied Graham's motion for mistrial.
First, Hurt's comments did not cause serious prejudice within the context
of the trial. 	Although 	the record 	shows 	the court 	expressed 	concern 	that
discussing Graham's administrative segregation would "strongly imply" Graham
exhibited 	"disciplinary 	problems," 	the 	court 	never 	issued 	a 	definitive 	ruling
prohibiting the term "disciplinary unit."21 	Instead, the court reserved ruling and
allowed the parties to develop their own solution. 	When Hurt referred to Nora
East as a "disciplinary unit," he did not clearly violate a ruling from the court.
Indeed, Graham did not object to either of Hurt's comments. 	Graham objected
21 2 RP (Nov. 3, 2014) at 52-53.

No. 73107-6-1/10
only to Hurt's use of the term "ultra security inmate."22 	The court immediately
sustained the objection and instructed the jury to disregard Hurt's comment.
Second, 	Hurt's testimony was arguably cumulative. 	Even 	despite the
court's concern that discussion of Graham's custody status would improperly
imply 	a 	propensity 	for 	violence, 	both 	parties 	introduced 	evidence 	of his
confinement. 	For example, Graham's defense relied in part on the 	stresses
induced through solitary confinement:
[Graham] had been in jail for a long time, he was locked in a
cell, by himself, 23 hours a day. 	And in the course of his life in the
jail, he faced the constant stresses and indignities that come from
the fact that 	nothing 	of his life 	was something 	that he 	could
personally control.
[T]he constant stress, struggle, and indignity of his situation
boiled to the point where he lost control of himself.[23]
During the trial, Graham solicited testimony about the isolation of Nora
East and the reasons an inmate might be placed there. 	In one exchange,
defense 	counsel 	specifically asked 	a corrections officer if inmates 	might be
placed in Nora East due to disciplinary problems:
[Defense Counsel]: I'd like to talk a little bit about life in the Nora East unit.
First of all, people might be in that unit, or inmates
might be in that unit, for a number of reasons; is that
right?
[Sergeant Cabrera]: Yes.
[Defense Counsel]: Sometimes 	they're 	there 	because 	they're 	a
disciplinary problem?
[Sergeant Cabrera]: Yes.'241
22 7 RP (Nov. 12, 2014) at 43.
23 6 RP (Nov. 12, 2014—opening statements) at 15.
24 8 RP (Nov. 13, 2014) at 77 (emphasis added).
10

No. 73107-6-1/11
When 	cross-examining 	Letrondo, 	defense 	counsel 	again 	stated 	that
inmates in Nora 	East exhibit "behavioral problems" and that these problems
could exist before residing in Nora East:
[Defense Counsel]: Now, it's fair to say that people can be in—a number
of people in Nora East have behavior problems, right?
[Mr. Letrondo]: 	Yes.
[Defense Counsel]: In 	fact, 	some 	of them have 	problems 	that 	have
nothing to do with being in Nora East, meaning their
mental 	problems or behavioral problems are 	from
before they were ever sent to Nora East?
[Mr. Letrondo]: 	I wouldn't know thatJ251
Following this exchange, the State asked Letrondo on re-direct whether
some inmates had "preexisting problems or issues with violence."26 	Graham did
not object. 	The State then asked Letrondo if any other inmates in Nora East had
attacked him before. 	Graham objected, but the court ruled Graham's cross-
examination "opened the door" to further evidence about inmates in Nora East.27
Therefore, in the context of other testimony at trial, Hurt's references to Nora
East as a "disciplinary unit" were cumulative with other witness statements. 	The
record shows that even defense counsel made statements about inmates in Nora
East exhibiting "disciplinary problems" and "behavioral problems."
Third, the court took steps to mitigate any prejudice. 	When Graham failed
to object to Hurt's initial comments describing Nora East as a "disciplinary unit,"
2510 RP (Nov. 18, 2014) at 161.
26 10RP(Nov. 18, 2014) at 163.
2710 RP (Nov. 18, 2014) at 163.
11

No. 73107-6-1/12
the court called for a recess on its own and reminded the parties that witnesses
should 	avoid using this terminology.28 	After Graham 	objected 	to the 	"ultra
security 	inmate" 	comment, 	the 	court 	sustained 	the 	objection 	and 	properly
instructed the jury to disregard the comment.29 	In response to Graham's motion
for a mistrial, the court offered a curative instruction "if one is recommended by
defense."30 Graham never asked for one.
Further, we are not convinced Hurt's comments affected the outcome of
the trial. 	See Mak, 105 Wn.2d at 701 ("Only errors affecting the outcome of the
trial will be deemed prejudicial."). 	As discussed above, counsel and witnesses
made several statements about Graham's custody status, Nora East, and the
potential 	disciplinary 	problems 	exhibited 	by 	some 	inmates 	residing 	there.
Defense counsel made and solicited some of these statements.
The jury also heard lengthy and vivid evidence of the assault, Letrondo's
injuries, and the injuries to the other officers who responded to restrain Graham.
Graham insists Hurt's comments unfairly depicted Graham as a "bad or violent
character," and that the testimony was "too powerfully tempting to ignore."31 	But
the jury acquitted Graham of one of the custodial assault charges, suggesting the
jury was not motivated by improper prejudice. 	Under these circumstances, it is
unlikely Hurt's comments affected the outcome of the trial. 	We therefore cannot
say 	that 	"no 	reasonable 	judge 	would 	have 	reached 	the 	same 	conclusion"
28 7 RP (Nov. 12, 2014) at 11-12.
29 7 RP (Nov. 12, 2014) at 43.
30 7 RP (Nov. 12, 2014) at 46.
31 Br. of Appellant at 15.
12

No. 73107-6-1/13
regarding Graham's motion for mistrial. 	Sofie, 112 Wn.2d at 667. 	The trial court
did not abuse its discretion when it denied the motion.
Aggravating Factor of Particular Vulnerability
Graham argues the State failed to present sufficient evidence to support
the aggravating factor of particular vulnerability or incapability of resistance.
The jury was instructed that if it found 	Graham 	guilty of first degree
assault, it must then decide "[w]hether the defendant knew or should have known
that the victim was particularly vulnerable or incapable of resistance" beyond a
reasonable 	doubt.32 	The 	court 	further 	instructed 	the 	jury that 	"particularly
vulnerable" means the victim "is more vulnerable to the commission of the crime
than 	the 	typical 	victim 	of 	Assault 	in 	the 	First 	Degree" 	and 	"the 	victim's
vulnerability is a substantial factor in the commission of the crime."33 	During
closing 	argument, 	the 	State 	emphasized 	that 	Letrondo 	was 	particularly
vulnerable to the assault because he became unconscious:
Was the victim in the current offense particularly vulnerable
or incapable of resistance?
When you find 	the defendant guilty of assault in the first
degree, I ask that you answer this question "Yes."
What we are referring to is about when Officer Letrondo was
on the ground, 	unconscious. 	The defendant knew that, 	yet he
continued to stomp on him. 	You heard from Officer Williamson how
the victim's body was bouncing off the ground when he was being
stomped on. 	That clearly is particularly vulnerable.1341
32 Clerk's Papers (CP) at 199, 201.
33 CP at 202.
3411 RP(Nov. 24, 2014) at 119.
13

No. 73107-6-1/14
A court may impose an exceptional sentence based on the aggravating
factor of vulnerability if the jury concludes beyond a reasonable doubt that "[t]he
defendant knew or should have known that the victim of the current offense was
particularly vulnerable or incapable of resistance." 	RCW 9.94A.535(3)(b). 	The
victim's vulnerability must have been a substantial factor in the commission of the
crime. 	State v. Suleiman, 158 Wn. App. 280, 291-92, 143 P.3d 795 (2006). We
review a 	court's 	decision 	to 	impose 	an 	exceptional 	sentence 	based 	on an
aggravating factor for sufficient evidence. 	State v. Gordon, 172 Wn.2d 671, 680,
260 P.3d 884 (2011). 	"The test for determining the sufficiency of the evidence is
whether, after viewing the evidence in the light most favorable to the State, 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).
Although 	this 	aggravating 	factor 	typically 	involves 	"victims 	who 	are
particularly vulnerable before the attack began," we have recognized that an
assault victim is particularly vulnerable when rendered unconscious by the initial
attack and then further assaulted. 	State v. Ogden, 102 Wn. App. 357, 367, 7
P.3d 839 (2000); see ajso State v. Baird, 83 Wn. App. 477, 922 P.2d 157 (1996).
In Baird, the defendant beat his wife unconscious and then surgically disfigured
her face. 	Baird, 83 Wn. App. 	at 479. 	The defendant argued the particular
vulnerability 	aggravating 	factor 	did 	not 	apply, 	arguing 	that 	"it 	would 	set a
'dangerous 	precedent' 	if 	this 	court 	concluded 	the 	victim 	was 	particularly
vulnerable because of the assault itself." 	Baird, 83 Wn. App. at 489. 	The court
rejected this argument, concluding that "a victim beaten unconscious and then
14

No. 73107-6-1/15
further assaulted is surely no less vulnerable than a sleeping victim." 	Baird, 83
Wn. App. at 489.
Similarly, in Ogden, the defendant hit the victim several times on the head
and then continued the assault after the victim was unconscious. 	Ogden, 102
Wn. App. at 360. The defendant argued the particularly vulnerable aggravating
factor did 	not apply because 	the 	victim 	was 	not unconscious 	before the
defendant hit him. 	Ogden, 102 Wn. App. at 366. 	But the court emphatically
rejected this argument and reaffirmed the principle in Baird:
[W]e soundly reject the premise that an assailant who 	beats a
victim into unconsciousness thereby rendering him or her totally
helpless, and then takes advantage of that helplessness to inflict
gratuitous 	additional 	injuries 	is 	not 	subject to a finding 	by the
sentencing court that an exceptional sentence upward or a manifest
injustice 	disposition 	is warranted 	based on 	vulnerability 	of the
victim.
Ogden, 102 Wn. App. at 369. 	The court further explained that the State was not
required to show "evidence of a temporal break" between the initial assault and
the harm incurred following the victim's unconsciousness. 	Ogden, 102 Wn. App.
at 368.
The record here shows the State provided sufficient evidence to prove
Letrondo was particularly vulnerable due to his inability to resist Graham's attack.
Multiple witnesses testified that Graham's attack rendered Letrondo unconscious
and that Graham continued to attack Letrondo. 	Wells, who was only few feet
away, testified that after Graham's second punch, Letrondo fell backwards, hit a
wall, and then lay motionless on the ground. 	He testified that Graham rushed
over to Letrondo and began stomping and jumping on Letrondo's face, neck, and
15

No. 73107-6-1/16
chest. 	Viewing this testimony in the light most favorable to the State, a rational
trier of fact could have concluded that Letrondo was particularly vulnerable due to
unconsciousness 	and 	that 	this 	vulnerability was 	a 	substantial 	factor 	in the
commission of the crime. 	See Gordon. 172 Wn.2d at 680.
Graham does not dispute that Letrondo was rendered unconscious or that
Graham continued to attack Letrondo after that point. 	Instead, Graham argues
that the rule articulated in Baird and Ogden does not apply to this case. 	We
disagree.
Graham primarily argues that Baird and Ogden are inapplicable because
those cases were decided before Blakelv v. Washington, 542 U.S. 296, 124 S.
Ct. 2531, 159 L. Ed. 2d 403 (2004). 	In Blakelv. the court held that a jury—not a
judge—must find evidence to prove an aggravating factor sufficient beyond a
reasonable doubt before the court imposes an exceptional sentence. 	542 U.S. at
313-14. 	Therefore, 	Graham 	argues 	Baird 	and 	Ogden 	are distinguishable
because those 	cases 	relied 	on 	a 	sentencing 	procedure 	the 	Blakely 	court
determined is unconstitutional. 	But although Blakelv invalidated the procedure
for imposing an exceptional sentence, 	nothing in 	Blakelv casts doubt on the
substantive 	rule 	in 	Baird 	and 	Ogden. 	An 	aggravating 	factor 	of 	particular
vulnerability 	may 	still 	be 	appropriate 	when 	a defendant 	renders 	the 	victim
unconscious and continues to inflict gratuitous harm. 	Blakelv simply requires that
a jury find sufficient evidence for the aggravating factor beyond a reasonable
doubt before the court can use the factor to justify an exceptional sentence. 	In
other words, Blakelv did not change what constitutes an aggravating factor. 	It
16

No. 73107-6-1/17
only clarified who the factfinder must be and the burden of proof the State must
meet before an aggravating factor affects a defendant's sentence.
Graham further attempts to distinguish 	Baird and Ogden on their facts.
We are unpersuaded. 	Like this case, both Baird and Ogden involved defendants
who 	rendered 	a 	victim unconscious 	before 	inflicting 	additional 	harm 	on that
victim. 	The 	relative severity of harm inflicted on the different victims is not
relevant to whether sufficient evident supports the aggravating factor in this case.
Nor is it relevant that the defendant in Ogden was charged with murder and
Graham was not. 	Particular vulnerability can be an aggravating factor when the
victim 	is rendered 	vulnerable "because of injuries . . . sustained during the
perpetrator's attack." Ogden. 102 Wn. App. at 367.
Graham also argues that his case differs from Baird and Ogden because it
involved a "single violent attack."35 	But the court rejected a similar argument in
Oqden. 	See Ogden, 102 Wn. App. at 368 (there need not be a "temporal break"
between initial attack and subsequent harm). 	Here, Baird and Ogden supportthe
application of an aggravating factor for particular vulnerability. 	See Oqden, 102
Wn. App. at 368 ("'a victim beaten unconscious and then further assaulted is
surely no less vulnerable than a sleeping victim'") (quoting Baird, 83 Wn. App. at
489). 	The record shows that sufficient evidence supports the jury's conclusion
that the State proved the aggravating factor beyond a reasonable doubt.
35 Br. of Appellant at 33.
17

No. 73107-6-1/18
Vagueness
Finally, 	Graham 	argues 	that 	the 	aggravating 	factor 	for 	particular
vulnerability is unconstitutionally vague.
A statute is unconstitutionally vague under the due process clause of the
Fourteenth Amendment if (1) it fails to define the offense with sufficient precision
that a person of ordinary intelligence can understand it, or (2) it does not provide
standards sufficiently specific to prevent arbitrary enforcement. 	State v. Eckblad,
152 Wn.2d 	515, 	518, 	98 	P.3d 	1184 	(2004). 	Both prongs of the 	vagueness
doctrine focus on laws that prohibit or required conduct. 	State v. Baldwin, 150
Wn.2d 448, 458, 78 P.3d 1005 (2003). 	In Baldwin, the court explained that
sentencing aggravators are not subject to a vagueness challenge because they
do not prohibit or require conduct:
The sentencing guideline statutes challenged in this case do
not define conduct nor do they allow for arbitrary arrest and criminal
prosecution by the State .... 	Sentencing guidelines do not inform
the public of the penalties attached to criminal conduct nor do they
vary the statutory maximum and minimum penalties assigned to
illegal conduct by the legislature. 	A citizen reading the guideline
statutes will not be forced to guess at the potential consequences
that might befall one who engages in prohibited conduct because
the 	guidelines 	do not set 	penalties. 	Thus, the 	due 	process
considerations that underlie the void-for-vagueness doctrine have
no application in the context of sentencing guidelines.
Baldwin. 150 Wn.2d at 459; see also State v. Jacobson. 92 Wn. App. 958, 966,
965 	P.2d 	1140 (1998) (Aggravating factors "'are simply not susceptible to a
vagueness attack.'") (quoting United States v. Wivell. 893 F.2d 156, 159 (8th Cir.
1990)). 	Therefore, for the reasons articulated in Baldwin. Graham's vagueness
challenge fails.
18

No. 73107-6-1/19
We find 	Graham's arguments to the 	contrary unpersuasive. 	Graham
contends 	that, 	post-BJakeJy, 	there 	is 	a 	"now-irrefutable 	proposition 	that
aggravating circumstances operate as elements of a higher offense."36 	But the
Washington Supreme Court has somewhat recently stated that "an aggravating
factor is not the functional equivalent of an essential element." 	State v. Siers,
174 Wn.2d 269, 271, 274 P.3d 358 (2012V. see also Gordon, 172 Wn.2d at 687-
79 (The particular vulnerability aggravating factor is not the functional equivalent
of an element of the offense.).
Graham also relies on death penalty cases, 	arguing that "a sentencing
provision is unconstitutionally vague ... if it 'fails to adequately inform juries what
they must find to impose the death penalty and as a result leaves them and
appellate courts with the kind of open-ended discretion which was held invalid . .
.'"37 	But these 	cases do not apply here because sentencing courts are
permitted more discretion in noncapital cases. 	See Baldwin, 150 Wn.2d at 460
("in 	noncapital 	cases 	a 	defendant 	does 	not 	have 	a 	constitutional 	right 	to
sentencing guidelines").
Baldwin controls our analysis here. 	See State v. Gore, 101 Wn.2d 481,
487, 	681 	P.2d 	227 	(1984) 	(this court is obliged to follow directly controlling
authority 	of the 	Washington 	Supreme 	Court). 	Under 	that 	case, 	Graham's
vagueness 	challenge 	to 	the 	particularly 	vulnerable 	aggravating 	factor 	fails.
36 Br. of Appellant at 38.
37 Br. of Appellant at 38 (quoting Mavnard v. Cartwriqht. 486 U.S. 356, 361, 108 S. Ct.
1853, 100 L Ed. 2d 372 (1988)).
19

No. 73107-6-1/20
Graham does not address Baldwin. 	Therefore, we reject Graham's vagueness
challenge.
We affirm the judgment and sentence.
K.c^ty 	, 	fl^J
WE CONCUR:
o4*t^\ 	4. 	Sp^/^^tj,
20