Supreme Court of the State of Washington
Opinion Information Sheet
Docket Number: 81650-6
Title of Case: State v. Stubbs
File Date: 10/07/2010
Oral Argument Date: 03/09/2010
SOURCE OF APPEAL
Appeal from Pend Oreille County Superior Court
Honorable Rebecca M Baker
Barbara A. Madsen Signed Majority
Charles W. Johnson Signed Majority
Gerry L. Alexander Majority Author
Richard B. Sanders Signed Majority
Tom Chambers Signed Majority
Susan Owens Signed Majority
Mary E. Fairhurst Signed Majority
James M. Johnson Dissent Author
Debra L. Stephens Signed Majority
COUNSEL OF RECORD
Counsel for Petitioner(s)
David N. Gasch
Gasch Law Office
Po Box 30339
Spokane, WA, 99223-3005
Susan F Wilk
Washington Appellate Project
1511 3rd Ave Ste 701
Seattle, WA, 98101-3635
Counsel for Respondent(s)
Antonio Demetrious Koures
Attorney at Law
Pend Oreille Co Prosc Aty
Po Box 5070
Newport, WA, 99156-5070
Amicus Curiae on behalf of Washington Association of Crimin
Allen Hansen & Maybrown PS
600 University St Ste 3020
Seattle, WA, 98101-4105
Amicus Curiae on behalf of Washington Association of Prosec
Pamela Beth Loginsky
Washington Assoc of Prosecuting Atty
206 10th Ave Se
Olympia, WA, 98501-1399
Brian Martin Mcdonald
King County Prosecuting Attorney
516 3rd Ave Ste W554
Seattle, WA, 98104-2362
IN THE SUPREME COURT OF THE STATE OF WASHINGTON
STATE OF WASHINGTON, )
) No. 81650-6
v. ) En Banc
TROY DEAN STUBBS, )
________________________________) Filed October 7, 2010
ALEXANDER, J. -- We granted Troy Dean Stubbs's petition to review a decision
of the Court of Appeals in which that court affirmed an exceptional sentence that the
trial court imposed on Stubbs for first degree assault. In sentencing Stubbs, the trial
court relied on a jury finding that the "victim's injuries substantially exceed the level of
bodily harm necessary to satisfy the elements of the offense." Clerk's Papers (CP) at
90. One of the elements, as set forth in the information charging Stubbs with first
degree assault, was that Stubbs inflicted "great bodily harm" in the course of the
assault, that degree of harm being defined as "bodily injury which creates a probability
of death, . . . significant serious permanent disfigurement, or . . . a significant
permanent loss or impairment of the function of any bodily part or organ." RCW
9A.04.110(4)(c). Stubbs maintains that the exceptional sentence was improper,
arguing that no injury short of death can substantially exceed the level of bodily harm
necessary to satisfy the element of "great bodily harm." We agree with Stubbs and
hold that the trial court erred by imposing an exceptional sentence. Accordingly, we
reverse the Court of Appeals and remand for resentencing within the standard range.
After consuming alcohol and ingesting methamphetamine at a party, Troy
Stubbs went to Ryan Goodwin's motor home. Goodwin told Stubbs that he did not want
him there because he was afraid that Stubbs would "steal something." Report of
Proceedings (RP) (July 24-28, 2006) at 134. Stubbs responded by saying that the
"biggest spider I ever seen" was behind Goodwin. Id. This remark caused Goodwin to
turn, whereupon Stubbs stabbed him in the back of the neck with a knife. The knife
blade lodged between two vertebrae and severed Goodwin's spinal cord. As a
consequence, a propane torch that Goodwin had been holding fell out of his hand and
started a fire. Stubbs then ran off, ignoring Goodwin's pleas for help. Although
Goodwin was unable to move his legs, he managed to smother the fire and make a
telephone call for help. The stabbing left Goodwin permanently paralyzed and confined
to a wheelchair.
II. Procedural History
The State charged Stubbs in Pend Oreille County Superior Court with assault in
the first degree pursuant to RCW 9A.36.011(1)(a) and/or (c).1 In the information, the
1RCW 9A.36.011 provides in part: "(1) A person is guilty of assault in the first
degree if he or she, with intent to inflict great bodily harm:
State indicated that it was seeking an enhanced sentence on the ground that, at the
time of the commission of the offense, Stubbs was armed with a deadly weapon other
than a firearm. The State later alleged an aggravating circumstance, to wit: "'the
victim[']s injuries substantially exceed the level of bodily harm necessary to satisfy the
elements of [the offense]'" pursuant to RCW 9.94A.535(3)(y).2 CP at 12. Stubbs
moved to "vacate" the aggravating factor on the ground that RCW 9.94A.535(3)(y) had
no application to first degree assault as charged. The trial court denied his motion,
concluding that it was a "fairly straightforward jury question and I don't have any
business taking it away from the jury on a . . . pretrial motion." RP (June 26, 2006) at
At trial, Dr. Vivian Moise, a specialist in spinal cord injuries, testified that
Goodwin suffers from a 50 percent loss of strength in his left arm, a two-thirds loss of
"(a) Assaults another with a firearm or any deadly weapon or by any force or
means likely to produce great bodily harm or death; or
". . . .
"(c) Assaults another and inflicts great bodily harm."
2RCW 9.94A.535 provides in part: "The court may impose a sentence outside
the standard sentence range for an offense if it finds, considering the purpose of this
chapter, that there are substantial and compelling reasons justifying an exceptional
sentence. Facts supporting aggravated sentences, other than the fact of a prior
conviction, shall be determined pursuant to the provisions of RCW 9.94A.537.
". . . .
"(3) Aggravating Circumstances -- Considered by a Jury -- Imposed by the Court
"Except for the circumstances listed in subsection (2) of this section, the
following circumstances are an exclusive list of factors that can support a sentence
above the standard range. . . .
". . . .
"(y) The victim's injuries substantially exceed the level of bodily harm necessary
to satisfy the elements of the offense. . . ."
strength in his right hand, and the total paralysis of both legs. She said that although
Goodwin's diaphragm works, the muscles of his rib cage that help with breathing are
paralyzed, increasing his risk of pneumonia. She added that his bladder and intestines
are also paralyzed, with the result that Goodwin must manually induce bowel
movements. Dr. Moise explained that paralysis causes additional medical problems,
including a higher risk of stroke, seizure, death, as well as a shortened life expectancy.
The jury found Stubbs guilty of first degree assault and specifically determined
that he was armed with a deadly weapon during the commission of the offense. In
addition, it found by special interrogatory that the assault inflicted great bodily harm,
and that "the victim's injuries substantially exceed the level of bodily harm necessary to
satisfy the elements of the offense." CP at 90. Based on the jury's verdict and findings,
the trial court imposed an exceptional sentence of 480 months, indicating that
Goodwin's condition was a "fate worse than death." RP (Sept. 7, 2006) at 55. The
sentence was twice the maximum standard range sentence and significantly greater
than the standard range for second degree murder.3 Stubbs appealed.
The Court of Appeals, Division Three affirmed the exceptional sentence,
[g]iven the evidence, the jury could find Mr. Goodwin did not
present as a typical fixed and stable victim of first degree assault because
Mr. Goodwin remains in jeopardy of death in a manner exceeding great
bodily harm and has been forced to live in a suspended, tortured state
between life and death during his shortened life expectancy.
3The standard range is 186-240 months, including 24 months for the deadly
weapon finding. See CP at 111. The standard range for second degree murder is 199-
State v. Stubbs, 144 Wn. App. 644, 650, 184 P.3d 660 (2008), review granted in part,
165 Wn.2d 1035, 203 P.3d 380 (2009). Judge John Schultheis dissented on the
ground that Goodwin's injuries were encompassed within the definition of "great bodily
Stubbs petitioned this court for review, contending, as he did at the Court of
Appeals, that the trial court erred by imposing an exceptional sentence and that RCW
9.94A.535(3)(y) is unconstitutionally vague. We granted his petition. The Washington
Association of Criminal Defense Lawyers and the Washington Association of
Prosecuting Attorneys (WAPA) each filed a brief as amicus curiae.
III. Standard of Review
RCW 9.94A.535 provides that an exceptional sentence is subject to review only
as set forth in RCW 9.94A.585(4). That statute provides as follows:
To reverse a sentence which is outside the standard sentence range, the
reviewing court must find: (a) Either that the reasons supplied by the
sentencing court are not supported by the record which was before the
judge or that those reasons do not justify a sentence outside the standard
sentence range for that offense; or (b) that the sentence imposed was
clearly excessive or clearly too lenient.
RCW 9.94A.585(4) (emphasis added). As we noted in State v. Nordby, 106 Wn.2d
514, 517-18, 723 P.2d 1117 (1986), subsection (a) of this statute has both a factual
and a legal component.4 After the United States Supreme Court's decision in Blakely v.
Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004), and our
4At the time we decided Nordby, the statute was codified as RCW 9.94A.210. It
was subsequently recodified as RCW 9.94A.585 by Laws of 2001, chapter 10, section
legislature's amendment of the Sentencing Reform Act of 1981 (SRA), chapter 9.94A
RCW, a jury must find any facts supporting aggravating circumstances beyond a
reasonable doubt and by special interrogatory.5 RCW 9.94A.537(3). A jury's finding by
special interrogatory is reviewed under the sufficiency of the evidence standard. See
Winbun v. Moore, 143 Wn.2d 206, 18 P.3d 576 (2001). Stubbs has not, however,
challenged the sufficiency of the evidence that supported the jury's finding that
Goodwin's injuries "substantially exceed the level of bodily harm necessary to satisfy
the elements" of first degree assault. CP at 90. Rather, he contends that the finding
does not "justify a sentence outside the standard sentence range for that offense."
RCW 9.94A.585(4)(a). We review the legal justification for a sentence de novo. State
v. Ferguson, 142 Wn.2d 631, 646, 15 P.3d 1271 (2001).
As he did at the Court of Appeals, Stubbs challenges the aggravating factor that
the trial court concluded was support for the exceptional sentence it imposed. As we
have observed, a trial court may impose a sentence above the standard range if the
jury finds that the "victim's injuries substantially exceed the level of bodily harm
necessary to satisfy the elements of the offense," and the sentencing court is satisfied
that this is a "substantial and compelling reason" for an exceptional sentence. RCW
5In Blakely, the United States Supreme Court held that a criminal defendant has
a Sixth Amendment right to have a jury determine beyond a reasonable doubt any fact,
other than the fact of a prior conviction, used to impose a sentence above the standard
range. Blakely, 542 U.S. at 305. Consequently, the legislature amended the SRA to
provide that "facts supporting aggravating circumstances shall be proved to a jury
beyond a reasonable doubt." Laws of 2005, ch. 68, § 4.
9.94A.535. As we have also noted, "great bodily harm," which is an element of the
offense charged,6 is defined as "bodily injury which creates a probability of death, or
which causes significant serious permanent disfigurement, or . . . a significant
permanent loss or impairment of the function of any bodily part or organ." RCW
9A.04.110(4)(c). Here, because the jury made the requisite finding, the issue is
whether the trial court committed an error of law in imposing an exceptional sentence
based on the severity of Goodwin's injuries.
Our opinions have established that "particularly severe injuries may be used to
justify an exceptional sentence," but only if they are "greater than that contemplated by
the Legislature in setting the standard range." State v. Cardenas, 129 Wn.2d 1, 6, 914
P.2d 57 (1996). Thus, in Nordby, we held that the severity of the victim's injuries did
not justify an exceptional sentence for vehicular assault because "this factor was
already considered in setting the presumptive sentence range" for that offense.
Nordby, 106 Wn.2d at 519. At the time, vehicular assault required the infliction of
"serious bodily injury," defined as "'bodily injury which involves a substantial risk of
death, serious permanent disfigurement, or protracted loss or impairment of the
function of any part or organ of the body.'" Id. (quoting former RCW 46.61.522(2)
(1983)).7 We concluded that the victim's injuries (two broken legs, a broken arm, and a
6The elements of the offense for purposes of the SRA are determined by the
crime charged. State v. Grewe, 117 Wn.2d 211, 214, 813 P.2d 1238 (1991).
7Laws of 2001, chapter 300, section 1 replaced the requirement of "serious
bodily injury" with "substantial bodily harm," as defined by RCW 9A.04.110.
coma that lasted several days) fit squarely within that definition.
Similarly, in State v. Armstrong, 106 Wn.2d 547, 723 P.2d 1111 (1986), we
determined that the first and second degree burns inflicted on a baby with boiling
coffee did not justify a sentence above the standard range, but simply brought the
crime within the definition of second degree assault. Second degree assault then
required the knowing infliction of "grievous bodily harm," which was defined as
"'atrocious, aggravating, harmful, painful, hard to bear, serious in nature.'" State v.
Salinas, 87 Wn.2d 112, 121, 549 P.2d 712 (1976) (quoting jury instruction). We
concluded that this definition encompassed the burns the baby suffered and was
"already accounted for in determining the presumptive sentence range" for second
degree assault. Armstrong, 106 Wn.2d at 551. Thus, it could not "be counted a
second time to justify an exceptional sentence." Id. (citing Nordby, 106 Wn.2d at 518;
State v. Baker, 40 Wn. App. 845, 700 P.2d 1198 (1985)).
Following our decisions in Nordby and Armstrong, the Court of Appeals, Division
One, considered the aggravating factor of serious injury in the context of first degree
assault in State v. George, 67 Wn. App. 217, 223, 834 P.2d 664 (1992), overruled on
other grounds by State v. Ritchie, 126 Wn.2d 388, 894 P.2d 1308 (1995). In George,
the court considered a record showing that two men assaulted a 77-year-old woman in
the course of a robbery. In addition to being punched in the face, held down and
raped, the victim in that case was hit in the head with a rifle stock five or six times until
the stock broke. As a consequence, she suffered irreparable brain damage. Although
the Court of Appeals acknowledged that the severity of a victim's injuries cannot be
used to enhance a defendant's sentence if that factor was considered in defining the
offense, it said that the effects of an offense on a victim may be used to justify an
exceptional sentence "'if they are significantly more serious than in the usual case.'" Id.
at 223 (quoting State v. Tunell, 51 Wn. App. 274, 279, 753 P.2d 543 (1988), overruled
on other grounds by State v. Batista, 116 Wn.2d 777, 808 P.2d 1141 (1991)). After
reviewing the definition of "great bodily harm," the Court of Appeals concluded that
relegating a victim to a semivegetative state was "far more serious than that necessary
to qualify as first degree assault" and that the trial court therefore had not erred in
considering the severity of the victim's injuries. Id. at 223. The court acknowledged
that its holding was "arguably" in conflict with this court's decision in Nordby, but it
sought to distinguish Nordby on the ground that the seriousness of the injuries in that
case was not "atypical" of a person struck by an automobile, "whereas here, the
seriousness and permanence of the injuries resulted from the deliberate and gratuitous
violence of the assault." Id. at n.3 (emphasis added).
The same division of the Court of Appeals revisited the issue in State v.
Bourgeois, 72 Wn. App. 650, 866 P.2d 43 (1994). There, the court held that the
severity of the victim's injuries did not support a manifest injustice disposition in juvenile
court for a first degree assault. The facts there were that a juvenile, Bourgeois, shot
the co-owners of a store with a handgun. The shooting resulted in one victim losing his
spleen and portions of his pancreas and colon. In reviewing the sentence, the court
stated that comparing the actual injuries to the minimum level of injuries that could have
led to the same conviction "avoids the relevant question: did the Legislature
contemplate the injuries actually inflicted in defining, and setting the standard range for,
the crime of conviction?" Id. at 662. It held that the injuries unambiguously fell within
the statutory definition of "great bodily harm." The court reconciled its ruling with its
prior ruling in George by noting that the exceptional sentence in George was supported
by the aggravating circumstance of the "'deliberate and gratuitous violence of the
assault.'" Id. at 663 (quoting George, 67 Wn. App. at 223 n.3).
In another vehicular assault case, the aforementioned Cardenas, this court
reiterated that a victim's injuries do not justify an exceptional sentence unless they are
"greater than that contemplated by the Legislature in setting the standard range."
Cardenas, 129 Wn.2d at 6 (citing Armstrong, 106 Wn.2d at 551; Nordby, 106 Wn.2d at
519). In keeping with Nordby, we consulted the statutory definition of "serious bodily
injury" and concluded that the injuries in question were "evidently the type of injuries
envisioned by the Legislature in setting the standard range." Id. at 6. Accordingly, we
held that they could not be used to justify a sentence above the standard range. In so
holding, we commented on the Court of Appeals decision in George, saying:
While we agree that the sentencing judge in George was justified in
imposing an exceptional sentence based on the defendant's deliberate
and gratuitous violence, to the extent that the George opinion suggests
that an exceptional sentence can be imposed merely because of the
severity of the injury, where this is an element of the crime, we disapprove
of its reasoning.
Id. at 7.
Here, the jury was told that one element of first degree assault is the infliction of
"great bodily harm," and it was instructed that "[g]reat bodily harm" is "bodily injury that
creates a probability of death, or which causes significant serious permanent
disfigurement, or that causes a significant permanent loss or impairment of the function
of any bodily part or organ." CP at 76, 79. In light of our case law, the question is
whether the injuries in this case are greater than those contemplated by the legislature
in establishing the standard range. In other words, do they fall within the statutory
definition of "great bodily harm" or outside it? Notably, the legislature has not defined a
level of harm greater than "great bodily harm."8 That element, moreover, encompasses
bodily injury that "creates a probability of death." It is, of course, true that the
"probability of death" need not be permanent. "Great bodily harm" can occur even if the
victim fully recovers from a life-threatening injury, Br. of Amicus Curiae WAPA at 7; but
a permanent "probability of death," such as the shortened life expectancy9 and
8The three levels of bodily harm, in ascending order, are: (a) "'bodily harm,'"
defined as "physical pain or injury, illness, or an impairment of physical condition"; (b)
"'[s]ubstantial bodily harm,'" defined as "bodily injury which involves a temporary but
substantial disfigurement, or which causes a temporary but substantial loss or
impairment of the function of any bodily part or organ, or which causes a fracture of any
bodily part"; and (c) "'[g]reat bodily harm,'" defined as "bodily injury which creates a
probability of death, or which causes significant serious permanent disfigurement, or
which causes a significant permanent loss or impairment of the function of any bodily
part or organ." RCW 9A.04.110(4).
9According to Dr. Moise, Goodwin's life expectancy has been shortened by 17
persistent risk of stroke, seizure, or death such as that which attends Goodwin's
paralysis, nonetheless falls within the statutory definition of "great bodily harm."
Indeed, we cannot imagine an injury that exceeds "great bodily harm" but leaves the
victim alive.1 "Great bodily harm," then, encompasses the most serious injuries short of
death. No injury can exceed this level of harm, let alone substantially exceed it.
Therefore, under the test articulated in our past opinions, we would not hesitate to hold
that the severity of Goodwin's injuries cannot support a sentence above the standard
range because they fall within the definition of "great bodily harm."
The statute in question, however, RCW 9.94A.535(3)(y), creates a somewhat
different test than we have employed in the past. Instead of looking at the bodily harm
element of the offense to see if the victim's injuries fit within the definition of that
element, the statute asks a jury to find that "[t]he victim's injuries substantially exceed
the level of bodily harm necessary to satisfy the elements of the offense." RCW
9.94A.535(3)(y) (emphasis added). In other word, it directs the trier of fact to measure
the victim's actual injuries against the minimum injury that would satisfy the definition
of, in this case, "great bodily harm" to see if they "substantially exceed" that benchmark.
As we have seen, no injury can exceed the definition of "great bodily harm." The
question, then, is whether injuries that fall within that definition are, nevertheless, so
much worse than what is necessary to satisfy that element that they can be said not
1Notably, the State conceded at oral argument that rendering a person
paraplegic "certainly" fits the definition. Wash. Supreme Court oral argument, State v.
Stubbs, No. 81650-6 (Mar. 9, 2010), at 20 min., 46 sec., audio recording by TVW,
Washington State's Public Affairs Network, available at http://www.tvw.org.
only to exceed, but to substantially exceed, that minimum.
The State contends that they can, pointing to the range of possible injuries that
exists within each level of bodily harm defined by the legislature -- bodily harm, serious
bodily harm, and great bodily harm. A broken leg, for example, would be "serious
bodily harm," but so would two broken legs and a coma that lasts several days. See
Nordby, 106 Wn.2d at 519. Likewise, the loss of a leg, a "significant permanent loss . .
. of the function of [a] bodily part," would qualify as "great bodily harm"; but so would
paraplegia. In the State's view, injuries at the high end of the "great bodily harm" range
not only exceed, but substantially exceed injuries at the low end of the range.
According to amicus WAPA:
Had Goodwin only lost a finger or toe, Stubbs would have committed first-
degree assault. However, the injuries that Stubbs caused went much
further. Goodwin is completely paralyzed from the waist down and
partially paralyzed in his arms and chest. His life expectancy is
significantly reduced; he has a much higher risk for contracting
pneumonia or suffering from a seizure or stroke. These injuries are
permanent and they substantially exceed the type of injuries required to
establish great bodily harm.
Br. of Amicus WAPA at 7-8. We reject this reading of RCW 9.94A.535(3)(y).
Though injuries at the far end of the spectrum of "great bodily harm" exceed the
minimum, the legislature evidently views them as differing in degree, not kind: The loss
of a finger or toe that amicus WAPA proposes as a benchmark satisfies the third prong
of the definition of "great bodily harm," "significant permanent loss . . . of the function of
any bodily part," but the grave injuries inflicted on Goodwin, which continue to pose a
"probability of death," satisfy the first prong of the definition of "great bodily harm."
Significantly, both prongs define the same level of bodily harm; namely, "great bodily
harm." While there are different degrees of "great bodily harm," the legislature has
classified injuries such as Goodwin's that create a probability of death the same as
injuries akin to WAPA's benchmark of a significant permanent loss or impairment of the
function of a bodily part or organ. One case of "great bodily harm," then, is not
qualitatively different than another case. Such a leap is best understood as the jump
from "bodily harm" to "substantial bodily harm," or from "substantial bodily harm" to
"great bodily harm." That is what is meant by "substantially exceeds."
We are confident that our conclusion is faithful to the legislature's intent in
codifying RCW 9.94A.535(3)(y). In conforming the SRA to the United States Supreme
Court's ruling in Blakely, the legislature said:
The legislature intends that aggravating facts, other than the fact of a
prior conviction, will be placed before the jury. The legislature intends
that the sentencing court will then decide whether or not the aggravating
fact is a substantial and compelling reason to impose greater punishment.
The legislature intends to create a new criminal procedure for imposing
greater punishment than the standard range or conditions and to codify
existing common law aggravating factors, without expanding or restricting
existing statutory or common law aggravating circumstances. The
legislature does not intend the codification of common law aggravating
factors to expand or restrict currently available statutory or common law
Laws of 2005, ch. 68, § 1, codified at RCW 9.94A.53 (emphasis added). As we have
seen, the aggravating factor of serious injury did not apply to first degree assault under
RCW 9A.36.011(1)(c) prior to codification. To read RCW 9.94A.535(3)(y) as doing so
now would result in the "expan[sion of] . . . available . . . common law aggravating
circumstances," contrary to the express intent of the legislature.
Although the injuries Goodwin suffered were significant, we conclude that, under
the statutory regime, no injury can "substantially exceed" the level of bodily harm
necessary to satisfy the element of "great bodily harm." Therefore, we hold that the
trial court erred by relying on the jury's finding regarding the severity of Goodwin's
injuries to justify the exceptional sentence that it imposed. We reverse the Court of
Appeals and remand to the trial court for resentencing within the standard range. In
light of our decision, it is unnecessary for us to decide whether RCW 9.94A.535(3)(y) is
Justice Gerry L. Alexander
Chief Justice Barbara A. Madsen Justice Susan Owens
Justice Charles W. Johnson Justice Mary E. Fairhurst
Justice Richard B. Sanders Justice Debra L. Stephens
Justice Tom Chambers