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
05-1-00071-9
Honorable Rebecca M Baker


JUSTICES
--------
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
David Allen
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
Respondent, )
)
v. ) En Banc
)
TROY DEAN STUBBS, )
)
Petitioner. )
________________________________) 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,

No. 81650-6

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.

I. Facts

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:

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No. 81650-6

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

22.

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. . . ."

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No. 81650-6

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,

concluding that

[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-
299 months.

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No. 81650-6

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

harm."

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
6.

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No. 81650-6

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).

IV. Analysis

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.

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No. 81650-6

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.

7

No. 81650-6

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

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No. 81650-6

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

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No. 81650-6

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.

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No. 81650-6

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
years.

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No. 81650-6

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.

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No. 81650-6

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

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No. 81650-6

"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
aggravating circumstances.

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

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No. 81650-6

now would result in the "expan[sion of] . . . available . . . common law aggravating

circumstances," contrary to the express intent of the legislature.

V. Conclusion

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

unconstitutionally vague.

AUTHOR:

Justice Gerry L. Alexander

WE CONCUR:

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

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