State of Washington v. Thomas Lee Weatherwax

FILED
May 3, 2016
In the Office of the Clerk of Court
WA State Court of Appeals, Division Ill

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE

STATE OF WASHINGTON, )
) No. 32708-6-111
Respondent, ) (consolidated with
) No. 32760-4-111)
v. )
)
THOMAS LEE WEATHERWAX, )
)
Appellant. )
)
) OPINION PUBLISHED
STATE OF WASHINGTON, ) IN PART
)
Respondent, )
)
v. )
)
JAYME LEE RODGERS, )
)
Appellant. )

SIDDOWAY, J. -In this consolidated appeal, Thomas Weatherwax and Jayme

Rodgers both challenge their convictions of three counts of drive-by shooting and the

sentences imposed for their convictions of three counts of first degree assault. Both

challenge conditions of community custody. Mr. Weatherwax alone challenges one of
No. 32708-6-III (consol. w/ No. 32760-4-III)
State v. Weatherwax

his convictions for first degree assault and Mr. Rodgers alone challenges legal financial

obligations (LFOs) imposed by the court. Each has filed a statement of additional

grounds (SAG).

In the published portion of this opinion, we construe RCW 9.94A.589(l)(b) to

determine how it should be applied where one of the serious violent offences being

sentenced is an anticipatory offense. We reach a different conclusion than was reached

by Division One of our court in State v. Breaux, 167 Wn. App. 166, 273 P.3d 447 (2012).

We also identify respects in which gang-related community custody conditions imposed

by the trial court are unconstitutionally vague and must be stricken or narrowed on

resentencing.

In the unpublished portion of this opinion, we hold that insufficient evidence

supports the drive-by shooting convictions, since the State failed to demonstrate shots

were fired from, or from the immediate area of, Mr. Rodger's car. And the State

concedes that mandatory minimum sentences for the assault convictions were imposed in

error, a concession we accept. We also hold that motor vehicle related community

custody conditions must be stricken on resentencing.

All of the remaining convictions are supported by substantial evidence and neither

SAG identifies any trial court error or abuse of discretion. We reverse the drive-by

shooting convictions and the mandatory minimum sentences, and remand for

resentencing consistent with this opinion.

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No. 32708-6-III (consol. w/ No. 32760-4-III)
State v. Weatherwax

FACTS AND PROCEDURAL BACKGROUND

Late one evening in September 2013, Leroy Bercier was at a convenience store in

the Hillyard neighborhood of Spokane, when he was accosted by Jayme Lee Rodgers, a

member of the Nortefio Red Boyz gang, which claims Hillyard as its territory. Mr.

Bercier's shoes, belt, and shirt were all blue, a color favored by the Surefios, the rival

gang of the Nortefio Red Boyz. Mr. Rodgers confronted Mr. Bercier about his blue

clothing and called him a "scrap"-a derogatory term for a Surefios gang member. Mr.

Bercier's cousin broke up the confrontation and one of the store's owners, Surgit Singh,

asked Mr. Rodgers to leave.

Mr. Rodgers left the store and joined his passenger and fellow Nortefio Red Boyz

member, Thomas Weatherwax, in Mr. Rodgers's car. They remained in the convenience

store parking lot for a time, unsuccessfully calling to Mr. Bercier to come out and fight.

Eventually, Mr. Rodgers and Mr. Weatherwax drove away.

Shortly thereafter, Louie Stromberg and Amanda Smith arrived at and entered the

convenience store. Mr. Bercier, who denied being a member of the Surefios gang but had

family members who were, told Mr. Stromberg he was worried about two people outside

who were going to "jump him." Report of Proceedings (RP) at 229. According to Mr.

Stromberg, Mr. Bercier appeared very frightened; Mr. Stromberg looked outside for him,

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State v. Weatherwax

but did not see anyone. He told Mr. Bercier he would watch out and make sure nobody

hurt him.

Mr. Bercier then left the store in the direction of two semitrucks parked in a large

dirt lot next to the convenience store. Moments later, he came running back, passing Mr.

Stromberg, who had completed his purchase and returned to his car.

Mr. Bercier's race back to the store caused Mr. Stromberg to step out of his car,

after which he saw two figures come around the semitrucks, which were about 30 yards

away. Without coming any closer, the two began shooting in the direction of Mr.

Stromberg's car. They fired six to ten shots, three of which hit Mr. Stromberg's car.

Like Mr. Stromberg, Ms. Smith was standing outside the car when the shots were fired.

Both Mr. Stromberg and Ms. Smith ran into the store for cover. Mr. Stromberg later

testified there were two shooters; he had seen distinct muzzle flashes from two locations.

Police officers located Mr. Rodgers's car that night, parked on the street within a

few minutes' driving distance from the convenience store. From running the car's license

plate, they determined it had ties to the Nortefio Red Boyz gang. The car was parked a

block away from the home of a friend of Mr. Weatherwax. Both Mr. Weatherwax and

Mr. Rodgers were in the home and were detained by police within several hours of the

car being identified.

Officers executed warrants to search the car and the home, and recovered two

firearms: a .380 caliber semiautomatic Browning pistol, found in the car's trunk, and a

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No. 32708-6-111 (consol. w/ No. 32760-4-111)
State v. Weatherwax

holstered Makarov semiautomatic 9 millimeter pistol, which was found in a dryer inside

the home. Forensic testing tied Mr. Weatherwax to the Makarov's holster and tied a

bullet from Mr. Stromberg's car to the Browning pistol.

Mr. Rodgers and Mr. Weatherwax were each charged with three counts of first

degree assault, with Mr. Bercier, Mr. Stromberg, and Ms. Smith the victims; one count of

conspiracy to commit assault against Mr. Bercier; and three counts of drive-by shooting,

again with Mr. Bercier, Mr. Stromberg, and Ms. Smith as the victims. Both informations

alleged firearm enhancements for the assault and conspiracy to commit assault charges,

and a gang aggravator in connection with the crimes committed against Mr. Bercier. Mr.

Weatherwax was charged with one count of felon in possession of a firearm.

The men were jointly tried and the jury found both guilty of all charges. Mr.

Weatherwax, who had a prior criminal history, was sentenced to 810 months of

confinement. Mr. Rodgers, who had no criminal history, was sentenced to 546 months of

confinement. The court imposed conditions of community custody on each defendant.

Finally, the court imposed mandatory LFOs in the amount of $800 against both Mr.

Weatherwax and Mr. Rodgers without objection from either defendant.

Both defendants appeal.

ANALYSIS

Mr. Weatherwax and Mr. Rodgers raise similar challenges to (1) the proper

application ofRCW 9.94A.589, (2) community custody conditions imposed, (3) the

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No. 32708-6-III (consol. w/ No. 32760-4-III)
State v. Weatherwax

sufficiency of the evidence to support the drive-by shooting convictions, and (4)

mandatory minimum sentences imposed for assault. Mr. Weatherwax alone challenges

the sufficiency of evidence to convict him of first degree assault of Mr. Bercier. Mr.

Rogers alone challenges the court's imposition of LFOs.

We address the issues in the order stated.

I. Sentencing errors: RCW 9.94A.589 and gang-related
community custody conditions

A. RCW 9.94A.589 and the rule oflenity

Mr. Weatherwax and Mr. Rodgers argue the trial court improperly calculated their

sentences under RCW 9.94A.589 when it applied an offender score of zero to their

convictions for conspiracy to commit first degree assault, rather than to their convictions

for first degree assault. They argue that RCW 9.94A.589 is ambiguous as to how the

offender score is calculated when an offender's current serious violent offenses include

an anticipatory offense. They contend the rule of lenity requires us to resolve that

ambiguity in favor of a calculation method that results in a shorter, rather than longer,

total period of incarceration. Their argument is supported by Division One's decision in

Breaux, but we do not believe RCW 9.94A.589 is ambiguous. Plainly read, it supports

the trial court's calculation of the sentence.

Under RCW 9.94A.589(1), sentences for offenses that are serious violent offenses

6
No. 32708-6-111 (consol. w/ No. 32760-4-111)
State v. Weatherwax

run consecutively, while sentences for offenses that are not serious violent offenses run

concurrently. The statute ameliorates, somewhat, the impact of consecutively sentencing

serious violent offenses by providing that the standard range for only one of the serious

violent offenses is determined using an offender score that includes all of the offender's

prior convictions and current offenses that are not serious violent offenses. The standard

range for other serious violent offenses is determined using an offender score of zero.

· The statute explicitly provides that the offense that is sentenced using the full offender

score is the offense with the "highest seriousness level under RCW 9.94A.5 l 5." RCW

9.94A.589(l)(b). The result-rational, and presumably intended-is that the full

offender score is used where it will maximize the offender's total sentence.

Here, as in Breaux, one of the serious violent offenses being sentenced is an

anticipatory offense-in this case, it is the charge of conspiracy to commit first degree

assault; in Breaux the charge was attempted first degree rape. 167 Wn. App. at 168.

RCW 9 .94A.5 l 5, which identifies crimes included within each seriousness level, does

not include anticipatory crimes within any seriousness level. A different statute, RCW

9.94A.595 provides that for persons convicted of the anticipatory offenses of criminal

attempt, solicitation or conspiracy under chapter 9A.28 RCW,

the presumptive sentence is determined by locating the sentencing grid
sentence range defined by the appropriate offender score and the
seriousness level of the crime, and multiplying the range by 75 percent.

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No. 32708-6-III (consol. w/ No. 32760-4-III)
State v. Weatherwax

Mr. Weatherwax and Mr. Rodgers argue that ifwe treat the anticipatory crime of

conspiracy to commit first degree assault as ifit has a seriousness level of 12 under RCW

9. 94A. 515-the seriousness level for first degree assault-then neither it nor the first

degree assault count will have the "highest" seriousness level under that statute because

their seriousness levels will be the same. Since the standard sentence range for

conspiracy is reduced by multiplying it by 75 percent, however, the offender derives a

substantial benefit if the offense sentenced using the full offender score is the anticipatory

offense. Mr. Weatherwax and Mr. Rodgers argue the rule oflenity requires us to

construe the statute to give them that benefit. If we do, then we will have created the

only situation in which RCW 9.94A.589(l)(b) does not require the full offender score to

be used where it will maximize the sentence. No reason is offered as to why the

legislature would have intended such a result.

A court's fundamental objective in interpreting a statute is to ascertain and carry

out the legislature's intent. Arborwood Idaho, LLC v. City of Kennewick, 151 Wn.2d

359, 367, 89 P.3d 217 (2004). If the statute's meaning is plain on its face, the court must

give effect to that plain meaning as an expression of legislative intent. Dep 't ofEcology

v. Campbell & Gwinn, LLC, 146 Wn.2d 1, 9-10, 43 P.3d 4 (2002). We do not read the

plain language ofRCW 9.94A.589(1)(b) as supporting the construction urged by Mr.

Weatherwax and Mr. Rodgers.

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No. 32708-6-III (consol. w/ No. 32760-4-III)
State v. Weatherwax

The statute plainly states the offense that is to be sentenced using the full offender

score is "the offense with the highest seriousness level under RCW 9.94A.515."

Conspiracy to commit first degree assault has no seriousness level under RCW

9. 94A. 515. A different statute treats it as having a seriousness level and then reduces the

resulting standard range. But RCW 9.94A.589(l)(b) does not say that the offense to be

sentenced using the full offender score is "the offense with the highest seriousness level

under RCW 9.94A.515 or the highest deemed seriousness level when applying RCW

9.94A.595."

We do not read into statutes words the legislature is alleged to have inadvertently

omitted unless doing so is imperatively required to make the statute rational. State v.

Taylor, 97 Wn.2d 724, 728-29, 649 P.2d 633 (1982). And where a party argues that there

has been a legislative omission but we can postulate why the legislature might have

intended the literal meaning of the statute, our Supreme Court has "uniformly concluded

judicial intervention was unwarranted." Id. at 729. We can postulate why the legislature

might intend a literal meaning in this case: limiting the choice of "the offense with the

highest seriousness level under RCW 9 .94A.5 l 5" to those that actually have a

seriousness level under that statute, ensures that the full offender score is used where it

will maximize the sentence. It avoids an anomalous exception for anticipatory offenses.

For these reasons, we respectfully disagree with the result in Breaux and affirm the

trial court's application ofRCW 9.94A.589(l)(b).

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 ' I

No. 32708-6-111 (consol. w/ No. 32760-4-111)
State v. Weatherwax

B. Gang-related conditions

Mr. Weatherwax and Mr. Rodgers both challenge the following gang-related

condition of community custody that appears in both of their felony judgment and

sentences:

That the defendant shall not wear clothing, insignia, medallions, etc., which
are indicative of gang lifestyle. Furthermore, that the defendant shall not
obtain any new or additional tattoos indicative of gang lifestyle.

Clerk's Papers (CP) at 338, 743. They contend the condition is unconstitutionally vague

and impinges on their United States Constitution First Amendment rights. Mr.

Weatherwax, alone, argues the condition must be stricken for the further reason that it is

not crime-related.

Mr. Rodgers, alone, challenges a second gang-related condition, "That the

defendant not be allowed to have any association or contact with known felons or gang

members or their associates." CP at 743. The court (or the State on presentment) struck

out preprinted language following that condition, which states, "A specific list will be

provided to the defendant by [the Department of Corrections] and updated as required by

the assigned Community Corrections Officer." Id.

Because we are remanding for resentencing, we will forego discussion of the types

of challenges to supervision conditions that can be raised for the first time on appeal and

the requirement of ripeness. We proceed directly to the fact that, in their current form,

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No. 32708-6-III (consol. w/ No. 32760-4-III)
State v. Weatherwax

these gang-related conditions are unconstitutionally vague and must be stricken, clarified,

or narrowed at resentencing.

As an initial matter, we reject Mr. Rodgers's contention that gang-related

conditions are not crime-related. The record supports a determination by the sentencing

court that future gang-related conduct by Mr. Rodgers would have a direct relation to the

circumstances of the crimes of which he remains convicted. 1

"[T]he due process vagueness doctrine under the Fourteenth Amendment and

article I, section 3 of the state constitution requires that citizens have fair warning of

proscribed conduct." State v. Bahl, 164 Wn.2d 739, 752, 193 P.3d 678 (2008). The

doctrine applies to protect against "arbitrary enforcement" of laws and "assure[] that

ordinary people can understand what is and is not allowed." State v. Valencia, 169

Wn.2d 782, 791, 239 P.3d 1059 (2010) (citing Bahl, 164 Wn.2d at 752). When a

condition of community placement concerns material protected under the First

Amendment, "a vague standard can cause a chilling effect on the exercise of sensitive

First Amendment freedoms. For this reason, courts have held that a stricter standard of

definiteness applies if material protected by the First Amendment falls within the

prohibition." Bahl, 164 Wn.2d at 753 (citations omitted).

1
The jury even returned a special verdict finding that the crimes against Mr.
Bercier were gang-related, although the court declined to impose an exceptional sentence
based on the gang aggravator.

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No. 32708-6-111 (consol. w/ No. 32760-4-111)
State v. Weatherwax

Clothing, insignias, medallions, etc.,· and tattoos. In State v. Villano, 166 Wn.

App. 142, 272 P.3d 255 (2012), this court concluded that a condition imposed by a

juvenile court which forbad the defendant from possessing "gang paraphernalia" was

unconstitutionally vague. The court noted that "[i]n the common experience of this court,

popular clothing items or specific colored items are frequently described as gang attire.

If the trial court intended to prohibit the wearing of bandanas or particular colored shoes,

it needed to provide clear notice." Villano, 166 Wn. App. at 144.

In Untied States v. Soltero, 510 F.3d 858 (9th Cir. 2007), the Ninth Circuit Court

of Appeals examined the constitutionality of a condition forbidding a defendant to "wear,

display, use or possess any insignia, emblem, button, badge, cap, hat, scarf, bandana,

jewelry, paraphernalia, or any article of clothing which may connote affiliation with, or

membership in the Delhi gang." 510 F .3d at 865. There, the court concluded that the

condition was "not impermissibly vague because [it] specifically reference[ d] the 'Delhi

gang,' and the district court [was] entitled to presume that [the defendant]-who [had]

admitted to being a member of this gang-[was] familiar with the Delhi gang's members,

its places of gathering, and its paraphernalia." Id. at 866.

Where no gang was identified, the Second Circuit Court of Appeals concluded that

a condition of supervised release prohibiting the defendant from "wearing of colors,

insignia, or obtaining tattoos or bum marks (including branding and scars) relative to

[criminal street] gangs," was unconstitutionally vague. United States v. Green, 618 F.3d

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No. 32708-6-111 (consol. w/ No. 32760-4-111)
State v. Weatherwax

120, 124 (2d Cir. 2010) (alteration in original). There, the court noted that "[t]he range of

possible gang colors is vast and indeterminate," and "[e]liminating such a broad swath of

clothing colors would make [the offender's] daily choice of dress fraught with potential

illegality." Id.

The language, "indicative of gang lifestyle" is unconstitutionally vague. It does

not limit the prohibited clothing or tattoos to those that are associated with or signify

gang membership, nor does it identify the gang or gangs of concern. Some may take the

position that any tattoo is "indicative of gang lifestyle." 2 On remand, any gang-related

conditions prohibiting clothing, insignias, medallions, or tattoos must provide clearer

notice of what is prohibited.

Association with felons and gang members. In Soltero, the court considered the

constitutionality of a condition which read:

The defendant shall not associate with any known member of any
criminal street gang or disruptive group as directed by the Probation
Officer, specifically, any known member of the Delhi street gang.

2 The State has called our attention to California decisions approving probation
conditions that imposed blanket restrictions on tattoos, but those decisions dealt
exclusively with juveniles. Under California law, "[ e]very person who tattoos or offers
to tattoo a person under the age of 18 years is guilty of a misdemeanor." CAL. PENAL
CODE§ 653. "[T]he probation condition prohibiting [a juvenile defendant] from
acquiring additional tattoos and body markings is analogous to the probation condition
requiring him to obey all laws." In re Antonio C., 83 Cal. App. 4th 1029, 1035, 100 Cal.
Rptr. 2d 218 (2000). Mr. Weatherwax and Mr. Rodgers were both in their twenties at the
time they were sentenced.

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No. 32708-6-III (consol. w/ No. 32760-4-III)
State v. Weatherwax

510 F.3d at 865. It held that the portion of the condition which prohibited the defendant

from associating "with any known member of any criminal street gang ... specifically,

any known member of the Delhi street gang" was constitutional. Id. The identification

of the "Delhi street gang," was key in insulating the condition from a vagueness

challenge.

The condition was held to be impermissibly vague in prohibiting the defendant

from associating with "any known member of any ... disruptive group." Id. at 867

(alteration in original). The court concluded that "disruptive group" could reasonably be

interpreted to include groups the government cannot reasonably restrict a defendant from

associating with, such as political protesters, labor unions, or sports fans.

In United States v. Johnson, 626 F .3d 1085 (9th Cir. 2010), the Ninth Circuit

struck down the following condition of supervised release as vague:

The defendant may not associate with anyone known to him to be a
Rollin' 30 gang member or persons associated with the Rollin' 30's gang,
with the exception of his family members.

626 F.3d at 1090. The court held that "[t]here is a considerable difference ... between

forbidding a defendant from associating with gang members and precluding him from

associating with persons who associate with gang members." Id. at 1091. Such a

condition

sweeps too broadly because it encompasses not only those who are
involved in the gang's criminal activities, but also those who may have
only a social connection to an individual gang member. The provision

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State v. Weatherwax

could forbid [the defendant] from associating with, for example, the ...
employer, minister or friend of a Rollin' 30's gang member. It could even
preclude [the defendant] from meeting with his probation officer.

Id. The court concluded that the condition was "impermissibly vague and entails a

deprivation of liberty that is greater than necessary to achieve the goal of preventing [the

defendant] from reverting to his previous criminal lifestyle." Id.

The challenged condition here-that "the defendant not be allowed to have any

association or contact with known felons or gang members or their associates"-suffers

from the same infirmity as the condition stricken in Johnson, unless it is clear that the

word "associates" is intended to have the means provided by RCW 9.94A.030(13). 3 CP

at 337, 743 (emphasis added).

To summarize, gang-related conditions of community custody can be imposed as

crime-related, given the circumstances of the crimes. But they must be limited to

behaviors that signify gang membership or association in or with an identified gang or

gangs. Limits on association must be confined to felons, gang members or gang

associates in the sense defined by RCW 9.94A.030(13), or to other specifically described

persons having a direct relation to the circumstances of the crimes.

3 "' Criminal street gang associate or member' means any person who actively
participates in any criminal street gang and who intentionally promotes, furthers, or
assists in any criminal act by the criminal street gang." RCW 9.94A.030(13).

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No. 32708-6-111 (consol. w/ No. 32760-4-111)
State v. Weatherwax

For reasons discussed hereafter, we reverse the drive-by shooting convictions and

the mandatory minimum sentences, and remand for resentencing.

A majority of the panel having determined that only the forgoing portion of this

opinion will be printed in the Washington Appellate Reports and that the remainder

having no precedential value shall be filed for public record pursuant to RCW 2.06.040, it

is so ordered.

II. Evidence sufficiency: drive-by shooting

Mr. Weatherwax and Mr. Rodgers challenge the sufficiency of evidence to support

the drive-by shooting convictions, arguing the State failed to prove shots were fired from,

or near, a car that transported them to the location of the shooting.

In order to convict a defendant, each element of the charged crime must be

supported by sufficient evidence. State v. Oakley, 158 Wn. App. 544, 549, 242 P.3d 886

(2010). "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). A claim of insufficient evidence admits the truth of the

State's evidence as well as the truth of all inferences reasonably drawn therefrom. Id.

A defendant is guilty of the crime of drive-by shooting when he or she recklessly

discharges a firearm in a manner which creates a substantial risk of death or serious

physical injury to another person

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No. 32708-6-111 (consol. w/ No. 32760-4-111)
State v. Weatherwax

and the discharge is either from a motor vehicle or from the immediate area
of a motor vehicle that was used to transport the shooter or the firearm, or
both, to the scene of the discharge.

RCW 9A.36.045( 1).

Convenience store owner Surjit Singh was asked ifhe saw where Mr. Rodgers and

Mr. Weatherwax "left and drove away," and answered, "They drove to center-you

know, the center-on center of street." RP at 266. The State argues this testimony is

sufficient evidence that Mr. Weatherwax and Mr. Rodgers "parked their vehicle in the

median of the street next to the gas pumps," and thereby within the immediate area of the

shooting. Br. ofResp't (Weatherwax) at 13; Br. ofResp't (Rodgers) at 13. Yet maps

entered into evidence do not depict any such median. ·They do depict the cross street on

which the convenience store is located as "Central," which might have been what Mr.

Singh, who struggled a bit with his English, was attempting to describe. Exs. P-79, P-80.

The prosecutor himself implied that shots were not fired from the immediate area

of Mr. Rodgers's car. He argued in closing that after initially driving away, the two

defendants returned, and:

They parked the car somewhere off in the dark streets, come back through
the dark, hidden behind those [semitrucks], to ambush Mr. Bercier; to catch
him out.

RP at 706 (emphasis added). The evidence the prosecutor argued offered support for

shots being fired from the "immediate area" of the car was not direct evidence:

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State v. Weatherwax

So how do you know the motor vehicle was in the immediate area?
Well, you know that Mr. Rodgers drove it there to buy gas. You heard
some of the witnesses saw it there, the old-the beater car, I think one of
them described it as. You know he drove away in it, around the corner, into
the dark. And you know it only took them a few minutes to get from the
convenience store over to where the car was parked and surveilled by
Officer Shane Oien.
Well, I will suggest to you all of that allows you to, again, infer as
circumstantial evidence that the vehicle was in the immediate area. And
that is all that is required.

RP at 710 (emphasis added).

In State v. Rodgers, 146 Wn.2d 55, 57-58, 43 P.3d 1 (2002), a third party drove

the defendants to an area of town where the defendants got out, walked two blocks, and

then intentionally shot at the victim's home. They then ran back to the where their driver

was still waiting, and were driven away. At issue on appeal in Rodgers, as here, was

whether the defendants had discharged a firearm from the "immediate area" of a motor

vehicle as required by RCW 9A.36.045. Id. at 58.

The court accorded "immediate" its dictionary definition: "' existing without

intervening space or substance ... being near at hand: not far apart or distant.'" 146

Wn.2d at 62 (alteration in original) (quoting WEBSTER'S THIRD NEW INTERNATIONAL

DICTIONARY 1129 (1986)). It found the dictionary definition to advance the legislative

intent:

In our view, the legislature aimed this relatively new statute at individuals
who discharge firearms from or within close proximity of a vehicle.

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State v. Weatherwax

Undoubtedly, it was concerned that reckless discharge of a firearm from a
vehicle or in close proximity to it presents a threat to the safety of the
public that is not adequately addressed by other statutes.

Id. (footnotes omitted). Giving "immediate area" its usual meaning, the court held it

"obvious that one is not in the immediate area of a vehicle that is parked two blocks away

from the place where that person discharges a firearm." Id.

Unlike Rodgers, the evidence in this case does not establish that Mr. Rodgers's car

was parked blocks away, but there is insufficient evidence to establish that it was in the

"immediate area" of the shooting. Mr. Singh's testimony does not support the State's

inference that the car was parked next to a nearby median. According to all of the

testimony, Mr. Weatherwax and Mr. Rodgers were on foot and were first observed

walking out from behind some semitrucks. Given the inexact evidence of when Mr.

Rodgers' s car arrived at the home where he was later arrested and the short distances

involved, the circumstantial evidence urged by the State in closing argument is consistent

with Mr. Rodgers' s car being parked several blocks away from where the shots were

fired.

Mr. Weatherwax's and Mr. Rodgers's convictions for drive-by shooting are

reversed. The reversal of the drive-by shooting convictions will also reduce the offender

score used in calculating the men's sentences for first degree assault.

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State v. Weatherwax

Ill Evidence sufficiency: assault

Mr. Weatherwax alone challenges the sufficiency of the evidence to support the

jury's verdict that Mr. Bercier was the victim of first degree assault. He points out that

the evidence established Mr. Bercier was inside the convenience store before shots were

fired and argues that Mr. Stromberg and his car, rather than Mr. Bercier, appeared to be

the defendants' target.

Mr. Bercier was a reluctant witness at trial; he initially refused to answer any

questions, claiming he didn't want any "retaliations ... [o]n me or my family." RP at

156. After the court unsuccessfully admonished him to answer the prosecutor's

questions, it found him in contempt and appointed a public defender to represent him.

After that, Mr. Bercier provided some testimony, although very little. Among his

testimony was the following:

Q. What do you recall telling the police officers?
A. I remember I got shot at that night, but I really don't remember that
much that happened, like, words or anything.
Q. How many times were you shot at?
A. Probably at least twice.
Q. And how far away were the people shooting at you?
A. I have no idea. I was in the store.

RP at 220-21.

Mr. Stromberg testified that when he saw Mr. Bercier running back toward the

convenience store, "He was-he was running for his life. He wasn't paying attention to

20
No. 32708-6-111 (consol. w/ No. 32760-4-111)
State v. Weatherwax

anything in the store." RP at 233. But he, too, testified that Mr. Bercier had entered the

store before shots were fired.

A person is guilty of first degree assault if he or she, with intent to inflict great

bodily harm, "[a]ssaults another with a firearm .... " RCW 9A.36.0l l(l)(a). To uphold

the conviction the State's evidence must be sufficient to prove each element of the

crime-that a defendant such as Mr. Weatherwax, with "(1) intent to inflict great bodily

harm, (2) assaulted (3) another (4) with a firearm." State v. Elmi, 166 Wn.2d 209, 214,

207 P.3d 439 (2009).

To prove the intent to inflict great bodily harm, the State need only prove Mr.

Weatherwax intended to inflict that harm on some person-in this case, it could be Mr.

Stromberg, Ms. Smith, or Mr. Bercier. State v. Wilson, 125 Wn.2d 212, 218, 883 P.2d

320 (1994). That, combined with proof that Mr. Bercier was assaulted with a firearm,

would be sufficient evidence to sustain the conviction of the first degree assault of Mr.

Bercier.

Washington recognizes three definitions of assault:

"( 1) an attempt, with unlawful force, to inflict bodily injury upon another
[attempted battery]; (2) an unlawful touching with criminal intent [actual
battery]; and (3) putting another in apprehension of harm whether or not the
actor intends to inflict or is capable of inflicting that harm [common law
assault]."

21
No. 32708-6-III (consol. w/ No. 32760-4-III)
State v. Weatherwax

Id. (alterations in original) (quoting State v. Bland, 71 Wn. App. 345, 353, 860 P.2d 1046

(1993), abrogated on other grounds by State v. Smith, 159 Wn.2d 778, 786-87, 154 P.3d

873 (2007)).

In closing argument, the prosecutor told the jury:

Now, I think we have shown they were trying to hit Mr. Bercier, make no
mistake about it. But if in your deliberations you have questions about that,
even if they were just shooting the gun to scare him, even if you find that
that is all this is about, there is still an assault being committed here.

RP at 702-03. 4

"Proof that a defendant fired a weapon at a victim is, of course, sufficient to justify

a finding of intent to kill." State v. Hoffman, 116 Wn.2d 51, 84-85, 804 P.2d 577 (1991).

Evidence of the number of shots fired in the direction of Mr. Stromberg and Ms. Smith

sufficed to establish the required intent to inflict great bodily harm.

Some evidence suggests Mr. Weatherwax could not have been attempting to inflict

injury upon Mr. Bercier, because he likely saw that Mr. Bercier had taken cover in the

store, and he did not shoot into the store. Given all that occurred, a reasonable fact finder

could still conclude Mr. Weatherwax intended to put Mr. Bercier in apprehension of

harm, however.

4
Mr. Weatherwax argues Mr. Bercier's apprehension is not a necessary element of
first degree assault, which is correct. Under the third alternative of assault, the victim's
apprehension is not required; rather, it is the defendant's intent to cause apprehension that
is relevant. See State v. Stationak, 1 Wn. App. 558, 559, 463 P.2d 260, (1969). The State
did not contend otherwise at trial, nor does it on appeal.

22
No. 32708-6-III (consol. w/ No. 32760-4-III)
State v. Weatherwax

Mr. Weatherwax's conviction for first degree assault of Mr. Bercier was supported

by sufficient evidence.

IV. Other sentencing errors

Mr. Weatherwax and Mr. Rodgers argue resentencing is required not only to

correct offender scores in light of reversal of the drive-by shooting convictions but also

because other sentencing errors were made. In addition to challenging the application of

RCW 9.94A589(l)(b) and the gang-related community custody provisions discussed

above, they contend that the court erroneously imposed mandatory minimum sentences

for the first degree assault charges, and unlawfully imposed other community custody

conditions.

A. Mandatory minimum sentences

Both Mr. Weatherwax and Mr. Rodgers argue the trial court erroneously imposed

five-year mandatory minimum sentences for their three assault convictions. "[I]llegal or

erroneous sentences may be challenged for the first time on appeal." State v. Ford, 137

Wn.2d 472, 477, 973 P.2d 452 (1999). The State concedes error.

While the judges on the panel are not in total agreement as to why the mandatory

minimum sentences were imposed in error, we accept the State's concession. We reverse

the five-year mandatory minimum sentences for counts one, three, and four.

23
I
i
No. 32708-6-III (consol. w/ No. 32760-4-III)
State v. Weatherwax

B. Other community custody provisions

One or both of Mr. Weatherwax and Mr. Rodgers challenge community custody

conditions dealing with motor vehicles and marijuana.

Motor vehicle conditions. Each appellant's judgment and sentence includes a

finding that the three drive-by shooting counts were felonies in connection with which

the defendant used a motor vehicle. The finding is relevant to RCW 46.20.285, under

which the Department of Motor Vehicles "shall revoke the license of any driver for the

period of one calendar year upon receiving a record of the driver's conviction of [certain

offenses]." One such offense is "[a]ny felony in the commission of which a motor

vehicle is used." RCW 46.20.285(4).

In light of our reversal of the drive-by shooting convictions, the judgment and

sentences entered upon resentencing should include no such finding.

Mr. Rodgers also challenges the condition included in his judgment and sentence

that "[t]he defendant shall notify the [Community Corrections Officer (CCO)] of any

vehicles owned or regularly driven by him/her," arguing that it is not crime-related. CP

at 743.

"As part of any term of community custody, the court may order an offender to ...

[c]omply with any crime-related prohibitions." RCW 9.94A.703(3)(f). A "[c]rime-

related prohibition" is an order that prohibits "conduct that directly relates to the

circumstances of the crime for which the offender has been convicted." RCW

24
No. 32708-6-III (consol. w/ No. 32760-4-III)
State v. Weatherwax

9 .94A.030( 10). "' There must be some basis for the "crime-related" determination if the

limitation is to have any meaning."' State v. Parramore, 53 Wn. App. 527, 531, 768

P.2d 530 (1989) (quoting DAVID BOERNER, SENTENCING IN WASHINGTON§ 4.5 (1981)).

We review the trial court's imposition of crime-related prohibitions for an abuse of

discretion. State v. Warren, 165 Wn.2d 17, 32, 195 P.3d 940 (2008). A court abuses its

discretion when its decision is based on untenable grounds or untenable reasons. State ex

rel. Carroll v. Junker, 79 Wn.2d 12, 26, 482 P.2d 775 (1971). With the reversal of the

drive-by shooting convictions, the requirement that Mr. Rodgers keep his CCO informed

of vehicles owned or regularly driven does not relate directly to the circumstances of his

remaining convictions. The condition should be excluded when Mr. Rodgers is

resentenced.

Marijuana. Mr. Rodgers alone challenges the condition of community custody

included in his judgment and sentence that orders him not to use or possess "Marijuana

and or products containing Tetrahydrocannabinol (THC)." CP at 742. Relying on RCW

9.94A.703(2)(c), he argues the condition must be amended to reflect the statute's

qualifier, "except pursuant to lawfully issued prescriptions." Br. of Appellant (Rodgers)

at 23.

Marijuana remains a schedule I controlled substance. RCW 69.50.204(c)(22).

The exception for prescribed use in RCW 9.94A.703(2)(c) does not apply, because one

can never obtain a prescription for marijuana use. See RCW 69.50.308 (regulating the

25
No. 32708-6-111 (consol. w/ No. 32760-4-111)
State v. Weatherwax

dispensing and prescription of controlled substances). Even in the context of medical

marijuana, the user obtains an "authorization," not a prescription, from a health care

provider. RCW 69.51A.030(2)(a). There was no error; the condition is statutorily

authorized.

V. LFOs

Mr. Rodgers challenges the LFOs imposed by the trial court, arguing the court

failed to inquire into his present or future ability to pay. He also argues the imposition of

a $100 DNA 5 collection fee under RCW 43.43.7541 violates substantive due process as

applied to him and other indigent defendants.

Mr. Rodgers failed to object to the LFOs at sentencing, but since we are

remanding for resentencing we will forego our usual consideration of RAP 2.5(a). The

trial court committed no error in imposing the LFOs without inquiring into ability to pay

because each obligation imposed was mandatory. See RCW 7.68.035 ($500 victim

assessment fee); RCW 36.18.020(2)(h) ($200 criminal filing fee); RCW 43.43.7541

($100 DNA collection fee). "[F]or mandatory legal financial obligations, the legislature

has divested courts of the discretion to consider a defendant's ability to pay when

imposing these obligations." State v. Lundy, 176 Wn. App. 96, 102, 308 P.3d 755 (2013).

5
Deoxyribonucleic acid.

26
No. 32708-6-III (consol. w/ No. 32760-4-III)
State v. Weatherwax

As to the constitutional challenge to the DNA fee, we recently held that in order to

determine whether the fee imposed to help fund the collection of DNA samples and the

maintenance and operation of DNA databases violates an indigent defendant's right to

substantive due process, we need much more of a record than proof that the defendant

qualified for court appointed counsel. State v. Stoddard, 192 Wn. App. 222, 228, 366

P.3d 474, (2016); and see State v. Brewster, 152 Wn. App. 856, 860, 218 P.3d 249 (2009)

(addressing legislature's purpose in establishing the fee). A substantive due process

challenge requires we apply a deferential standard of review and determine whether the

challenged law has a rational relationship to any legitimate state interest. Nielsen v.

Dep'to/Licensing, 177 Wn. App. 45, 53, 309 P.3d 1221 (2013). The focus in the first

instance is on the interest of the State, as to which no record whatsoever has been

developed. 6

The record is not sufficiently developed to permit review. Stoddard, 192 Wn.

App. at 228-29.

6
In determining whether a rational relationship exists, a court may assume the
existence of any necessary state of facts it can reasonably conceive in determining
whether a rational relationship exists between the challenged law and a legitimate state
interest. Amunrudv. Bd. ofAppeals, 158 Wn.2d 208, 222, 142 P.3d 571 (2006) (citing
Heller v. Doe, 509 U.S. 312, 320, 113 S. Ct. 2637, 125 L. Ed. 2d 257 (1993). The fact
that the State is not obliged to present evidence in support of a rational relationship does
not mean it should not be given the opportunity, however.

27
No. 32708-6-III (consol. w/ No. 32760-4-III)
State v. Weatherwax

WEATHERWAX STATEMENT OF ADDITIONAL GROUNDS

In a prose SAG, Mr. Weatherwax raises three additional grounds for review: that

(1) insufficient evidence supports his convictions for the assaults of Mr. Stromberg and

Ms. Smith, (2) insufficient evidence supports the conviction for unlawful possession of a

firearm, and (3) the trial court erred when it admitted evidence of his gang membership.

Assault of Mr. Stromberg and Ms. Smith. Mr. Weatherwax alleges the State failed

to establish he intended to assault Mr. Bercier, with the result that the doctrine of

transferred intent cannot be used to establish an assault of either Mr. Stromberg or Ms.

Smith.

First, Mr. Weatherwax misunderstands the operation of the applicable statute. In

Wilson, the Supreme Court held that the doctrine of transferred intent "is only required

when a criminal statute matches specific intent with a specific victim." 125 Wn.2d at

219. With first degree assault, "once the mens rea is established, RCW 9A.36.0l l, not

the doctrine of transferred intent, provides that any unintended victim is assaulted if they

fall within the terms and conditions of the statute." Id.

In addition, the evidence most clearly supported the required intent as to Mr.

Stromberg and Ms. Smith. They were the two victims standing outside the store, within

the line of fire. Sufficient evidence supports the convictions.

Unlawful possession of a firearm. Mr. Weatherwax challenges the sufficiency of

the evidence to establish that he had actual or constructive possession of a firearm.

28
No. 32708-6-III (consol. w/ No. 32760-4-III)
State v. Weatherwax

The evidence established that the owner of the home in which Mr. Weatherwax

hid following the crime first saw the holstered Makarov semiautomatic pistol after Mr.

Weatherwax arrived. She placed it in her dryer, where police found it. A forensic

scientist with the Washington State Patrol Crime Laboratory testified Mr. Weatherwax

was a partial major contributor to the DNA found on the holster. Also, Mr. Stromberg

testified that when shots were fired, he saw two distinct muzzle flashes coming from

separate areas, and only a short time before the shooting, Mr. Weatherwax and Mr.

Rodgers were observed calling Mr. Bercier to come out of the convenience store and

fight. Sufficient evidence supports Mr. Weatherwax's conviction of unlawful possession

of a firearm.

Admissibility ofgang membership. Finally, Mr. Weatherwax challenges the

admissibility of evidence that he was a member of a gang. He argues (as his lawyer did

before trial) that the evidence was inadmissible under ER 402, 403, and 404(b ). He also

argues the sentencing court abused its discretion when it considered gang evidence during

sentencing.

Under ER 404(b ), evidence of prior bad acts is not admissible to show the

character of a defendant. It is, however, admissible to show motive. ER 404(b ).

"Motive is an inducement which tempts a mind to commit a crime," and although it is not

an element of the offense that the State is required to prove, evidence showing motive

may be admissible. State v. Boot, 89 Wn. App. 780, 789, 950 P.2d 964 (1998). Here, the

29
No. 32708-6-III (consol. w/ No. 32760-4-III)
State v. Weatherwax

evidence of Mr. Weatherwax's involvement with the Nortefio Red Boyz was admissible

to explain his and Mr. Rodgers's motive and intent in calling Mr. Bercier out to fight,

laying in wait for Mr. Bercier, chasing him back to the convenience store, and taking

violent action. The trial court did not err in admitting evidence of Mr. Weatherwax's

gang membership.

The trial court also did not err in considering Mr. Weatherwax's gang involvement

during sentencing. The State had charged a gang aggravator and the jury returned a

special verdict finding that the crimes against Mr. Bercier were committed for purposes

of furthering a criminal street gang.

RODGERS STATEMENT OF ADDITIONAL GROUNDS

In his pro se SAG, Mr. Rodgers raises two additional grounds for review: that (1)

insufficient evidence supports his conviction for conspiracy to commit first degree assault

and (2) insufficient evidence supports the conviction for first degree assault of Mr.

Bercier.

Conspiracy to commit first degree assault. Under RCW 9A.28.040(1):

A person is guilty of criminal conspiracy when, with intent that conduct
constituting a crime be performed, he or she agrees with one or more
persons to engage in or cause the performance of such conduct, and any one
of them takes a substantial step in pursuance of such agreement.

A formal agreement is unnecessary. State v. Barnes, 85 Wn. App. 638, 664, 932 P.2d

669 ( 1997). A conspiracy may be shown by concert of action, with the parties working

30
No. 32708-6-111 (consol. w/ No. 32760-4-111)
State v. Weatherwax

together understandingly with a single design for the accomplishment of a common

purpose. Id. Circumstantial evidence may provide proof of a conspiracy. Id.

The evidence that Mr. Weatherwax and Mr. Rodgers acted in concert in calling

Mr. Bercier out to fight, together with the evidence that they then laid in wait and chased

him back to the store where they fired shots to cause him apprehension is sufficient to

support the conspiracy conviction.

First degree assault of Mr. Bercier. Mr. Rodgers finally contends the State failed

to prove he had the requisite intent to assault Mr. Bercier. The same issue was raised by

Mr. Weatherwax' s brief. As we have already explained, the evidence was sufficient.

We reverse the drive-by shooting convictions and the mandatory minimum

sentences, and remand for resentencing consistent with this opinion.

I CONCUR:

K6rsmo, J. ' f

31
 32708-6-III
consol. w/ 32760-4-III

PENNELL, J. (dissenting in part)- I join all but Section I (A) of the majority

opinion, addressing RCW 9.94A.589 and the rule oflenity.

The majority opinion departs from Division One's holding in State v. Breaux, 167

Wn. App. 166, 175-76, 273 P.3d 447 (2012), despite the State's concession of error and

request for resentencing under Breaux. While it is not unusual for a court to refuse an

erroneous legal concession, and it is not unusual for one division of this court to disagree

with a decision from another division, there appears to be little precedent for both

circumstances occurring simultaneously.

In the current context, the doctrine of stare decisis warrants accepting the State's

concession. "[Appellate courts] do not lightly set aside precedent, and the burden is on

the party seeking to overrule a decision to show that it is both incorrect and harmful."

State v. Kier, 164 Wn.2d 798, 804-05, 194 P.3d 212 (2008). Here, no party has taken on

this burden. By creating an uninvited conflict in the construction of RCW 9.94A.589, we

are unnecessarily complicating the law, upending settled expectations and risking

inequitable outcomes. I would not do so sua sponte.

An additional reason to invoke stare decisis is that we are dealing with an issue of

statutory interpretation. 1 The legislature can amend RCW 9.94A.589 if it disagrees with

1
"Stare decisis is usually the wise policy, because in most matters it is more
important that the applicable rule of law be settled than that it be settled right. This is
commonly true even where the error is a matter of serious concern provided correction
can be had by legislation." Burnet v. Coronado Oil & Gas Co., 285 U.S. 393, 406, 52 S.
Ct. 443, 76 L. Ed. 813 (1932) (Brandeis, J., dissenting) (citations omitted).
 No. 32708-6-III (consol. w/ No. 32760-4-III)
State v. Weatherwax
J:•

the construction set out in Breaux. Despite Division One's interpretation of RCW

9.94A.589(l)(b), the legislature has not changed the statute's language. The legislature

amended RCW 9.94A.589 in 2015 but did not change the substance of subsection (l)(b).

The legislature is presumed to have acted with knowledge of Breaux, and its failure to

substantively amend the statute in the four years since Breaux suggests its acquiescence

to the judicial interpretation. See Buchanan v. Int' l Bd. of Teamsters, Chauffeurs,

Warehousemen and Helpers, 94 Wn.2d 508, 511, 617 P.2d 1004 (1980).

Based on the foregoing, I dissent from the majority opinion in part and would

remand these matters for resentencing in light of Breaux, as well as the other errors set

forth in the majority opinion.

Pennell, J.

2