¶45 (concurring in part and dissenting in part) — A jury of Brian Womac’s peers found him guilty of abusing his infant son, Anthony, so severely that Anthony died.14 The trial court gave Womac an exceptional sentence in light of Anthony’s vulnerability due to his extreme youth (four months) and Womac’s having abused a position of trust in perpetrating his crime. While, admittedly, the trial court erred in failing to submit these aggravating factors to *665the jury,15 the court’s error was harmless as there can be no reasonable doubt that the jury would have found these factors had it been given the opportunity to do so.16 Because the majority would hold otherwise, I dissent in part from its decision.17
J.M. Johnson, J.*665¶46 Following his conviction for homicide by abuse,18 the trial court determined that Womac’s offender score was zero and his standard range sentence was 240 to 320 months. State v. Womac, 130 Wn. App. 450, 452, 455, 123 P.3d 528 (2005). However, the trial court gave Womac an exceptional sentence of 480 months based on its finding of two aggravating factors: (1) particular vulnerability of the victim due to extreme youth and (2) abuse of a position of trust. Id. at 455; majority at 648. By failing to submit these factors to the jury, the trial court violated 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). See majority at 648.
¶47 Due to this error, the majority would affirm the Court of Appeals’ decision to remand for resentencing within the standard range. Majority at 649. The majority rejects the State’s contention that the trial court’s error was harmless. Majority at 663.1 would hold the error harmless and affirm Womac’s exceptional sentence.
¶48 According to the Supreme Court, “ * “most constitutional errors can be harmless.” ’ ” Washington v. Recuenco, 548 U.S. 212, 218, 126 S. Ct. 2546, 165 L. Ed. 2d 466 (2006) *666(quoting Neder v. United States, 527 U.S. 1, 8, 119 S. Ct. 1827, 144 L. Ed. 2d 35 (1999) (quoting Arizona v. Fulminante, 499 U.S. 279, 306, 111 S. Ct. 1246, 113 L. Ed. 2d 302 (1991))). In Recuenco, the Supreme Court made clear that failure to submit a sentencing factor to the jury is subject to harmless error analysis. 548 U.S. at 221-22. In particular, the Court indicated that failure to submit a sentencing factor is to be treated analogously to omission of an element from the jury’s instructions for purposes of harmless error analysis. Id. at 219-22. The Court repeatedly cited to its decision in Neder as the authoritative decision on harmless error analysis of the omission of an element from the jury’s instructions. Id.
¶49 In Neder, the test applied by the Court was “whether it appears ‘beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained.’ ” 527 U.S. at 15 (quoting Chapman v. California, 386 U.S. 18, 24, 87 S. Ct. 824, 17 L. Ed. 2d 705 (1967)). The Court elaborated that “where a reviewing court concludes beyond a reasonable doubt that the omitted element was uncontested and supported by overwhelming evidence, such that the jury verdict would have been the same absent the error, the erroneous instruction is properly found to be harmless.” 527 U.S. at 17. This court has summarized the Neder approach as follows: “When applied to an element omitted from, or misstated in, a jury instruction, the error is harmless if that element is supported by uncontroverted evidence.” State v. Brown, 147 Wn.2d 330, 341, 58 P.3d 889 (2002) (citing Neder, 527 U.S. at 18). Accordingly, the proper inquiry in the present case is whether the aggravating factors used by the trial court to support Womac’s exceptional sentence are supported by uncontroverted evidence.
¶50 As noted above, the first aggravating factor relied upon by the trial court was the particular vulnerability of the victim due to extreme youth. The uncontroverted evidence introduced at trial established the following facts relevant to this aggravating factor: (1) Anthony was born two months premature and was four months old when he *667died (3 Verbatim Report of Proceedings (VRP) at 251-52; 4 VRP at 496) and (2) At the time of his death, Anthony was unable to walk, crawl, roll over, or sit up on his own. 3 VRP at 266-67. In light of this evidence, I would conclude, beyond a reasonable doubt, that had the jury been given the opportunity it would have found Anthony was a particularly vulnerable victim. See State v. Berube, 150 Wn.2d 498, 513, 79 P.3d 1144 (2003) (upholding use of vulnerability aggravator based on victim’s age of less than two years and his complete dependency on the defendants for his well-being); State v. Fisher, 108 Wn.2d 419, 425, 739 P.2d 683 (1987) (upholding use of vulnerability aggravator based on victim’s age of five and a half years); State v. Quigg, 72 Wn. App. 828, 842, 866 P.2d 655 (1994) (upholding use of vulnerability aggravator based on victim’s age of three to four years old).
¶51 The second aggravating factor relied upon by the trial court was abuse of a position of trust. The uncontroverted evidence introduced at trial established the following facts relevant to this aggravating factor: (1) Womac was Anthony’s father (3 VRP at 249-52) and (2) Womac was the only adult taking care of Anthony when his fatal injuries were sustained. 2 VRP at 206; 3 VRP at 264-65. In light of this evidence, I would conclude, beyond a reasonable doubt, that had the jury been given the opportunity it would have found Womac abused a position of trust when he fatally assaulted Anthony. See Berube, 150 Wn.2d at 513 (upholding use of abuse of position of trust aggravator based on defendants’ parent and parent-like status, respectively); Quigg, 72 Wn. App. at 842-43 (upholding use of abuse of position of trust aggravator based on defendant’s occupying “position like a father” in relation to his victim). Because there can be no reasonable doubt that the jury would have found both of the aggravating factors at issue, the trial court’s error in failing to submit those factors to the jury should be deemed harmless.
¶52 The majority attempts to avoid the conclusion that the trial court’s error must be deemed harmless by ignoring *668the substantive law on point and, instead, basing its decision solely on the proposition that the trial court’s error cannot be deemed harmless due to a state procedural defect. Specifically, the majority would affirm the Court of Appeals decision to remand for resentencing within the standard range because “there was no legal procedure whereby Womac’s jury could have made the findings necessary to support his exceptional sentence.” Majority at 663. The majority would render its decision based solely on this point, despite the fact that Womac did not pursue this argument until his supplemental brief to this court. Such reliance is completely at odds with this court’s practice. State v. Hudson, 124 Wn.2d 107, 120, 874 P.2d 160 (1994) (citing State v. Clark, 124 Wn.2d 90, 875 P.2d 613 (1994), overruled on other grounds by State v. Catlett, 133 Wn.2d 355, 945 P.2d 700 (1997); State v. Wethered, 110 Wn.2d 466, 755 P.2d 797 (1988)). To render a decision based on such a belated argument violates the fundamental principles of fairness, which underpin our adversarial system of justice and will only encourage future litigants to attempt to gain advantage through similar delay tactics.
¶53 In sum, both of the aggravating factors relied upon by the trial court in giving Womac an exceptional sentence are supported by substantial, uncontroverted evidence. Because there can be no reasonable doubt that the jury would have found both of the factors at issue, I would hold the trial court’s error in failing to submit these factors to the jury was harmless. The majority’s reliance on Womac’s untimely assertion of a state procedural ground for affirmance is inappropriate and unpersuasive. Accordingly, I dissent.
Reconsideration denied September 18, 2007.
State v. Womac, 130 Wn. App. 450, 452, 123 P.3d 528 (2005); see RCW 9A.32.055(1) (defining “homicide by abuse”).
See Blakely v. Washington, 542 U.S. 296, 303-04, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004).
See Washington v. Recuenco, 548 U.S. 212, 221-22, 126 S. Ct. 2546, 165 L. Ed. 2d 466 (2006) (Failure to submit sentencing factor, like failure to instruct on element of crime, subject to harmless error analysis.); Neder v. United States, 527 U.S. 1, 17, 119 S. Ct. 1827, 144 L. Ed. 2d 35 (1999) (Error may be deemed harmless “where a reviewing court concludes beyond a reasonable doubt that the omitted element was uncontested and supported by overwhelming evidence, such that the jury verdict would have been the same absent the error.”).
I concur in the majority’s holding that double jeopardy principles require remand for trial court to vacate convictions of felony murder and first degree assault. Majority at 660.
Womac was also convicted of second degree felony murder and first degree assault. Womac, 130 Wn. App. at 452.