State Of Washington, V Zachary Alan Fletcher

Court: Court of Appeals of Washington
Date filed: 2021-12-14
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                                                                                                 Filed
                                                                                           Washington State
                                                                                           Court of Appeals
                                                                                            Division Two

                                                                                          December 14, 2021
            IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                           DIVISION II

 STATE OF WASHINGTON,                                                 No. 54502-1-II

                                 Respondent,

    v.                                                        PART PUBLISHED OPINION

 ZACHARY ALAN FLETCHER,

                                 Appellant.

         WORSWICK, J. — Zachary Fletcher appeals his convictions and sentence for two counts

of vehicular assault. Fletcher argues that the trial court erred when it sentenced him to an

exceptional sentence upward based on the severity of the victims’ injuries pursuant to RCW

9.94A.535(3)(y). Specifically, Fletcher argues that the trial court erred when (1) it failed to issue

findings on the mitigating factor that the victims were “willing participants,” (2) it failed to

balance the mitigating factor against the aggravating factors, and (3) it imposed an exceptional

sentence upward.

         In a statement of additional grounds (SAG), he argues that (4) the trial court erred in

finding that he was the driver at the time of the collision, (5) the State violated his due process

rights by failing to properly handle key evidence, and (6) the prosecutor committed prosecutorial

misconduct during closing argument when he commented on Fletcher’s refusal to testify.

         In the published portion of the opinion, we hold that the trial court was not required to

enter findings on the mitigating factor, nor was it required to balance the mitigating factor

against the aggravating factor, and it did not err in imposing an exceptional sentence upward. In

the unpublished portion of the opinion, we reject the remainder of Fletcher’s arguments.
No. 54502-1-II


       Accordingly, we affirm Fletcher’s convictions and sentence.

                                              FACTS

       On the evening of May 31, 2018, Fletcher, Jacob Torey, and Naomi Kuykendall,

arranged to meet so they could party together. Torey first called Fletcher because Fletcher had a

vehicle and then texted Kuykendall, who brought beer.1 All three of them drank beer on their

way to “Six Pack,” an area where they drank and shot guns. Afterward, Fletcher and Kuykendall

took turns driving the truck to their next destination, the spit at Ediz Hook.2

       Fletcher was driving erratically and speeding. As Fletcher was driving, Kuykendall

recorded “Snapchat” videos and sent them to her friends. Fletcher drove the vehicle on the way

back from the spit, and crashed it into concrete blocks and a light pole at a high rate of speed.

Torey was ejected from the vehicle. Fletcher’s blood alcohol content (BAC) was 0.18 at the time

of the collision. As a result of the accident, Torey was paralyzed from the waist down, and

Kuykendall sustained a fractured sternum and three fractured vertebrae.

       Torey spent a month in Harborview Medical Center, where he needed rehabilitation to

help him regain some bodily functions like transitioning to his bed, going to the bathroom,

getting dressed, and other functions. Kuykendall’s injuries required the doctors to install a metal

rod and screws down her neck. Kuykendall suffered from daily neck pain, loss of neck mobility,

memory loss, and other physical limitations. Kuykendall also had to switch her career path from

nursing to something less physically demanding due to her injuries from the accident.


1
 At the time of the incident, Fletcher was 21 years old, Torey was 18 years old, and Kuykendall
was 19 years old.
2
 Kuykendall testified that she drove for a short amount of time before she switched with
Fletcher.


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No. 54502-1-II


        The State charged Fletcher with two counts of vehicular assault. Each count included the

special allegation aggravating factor under RCW 9.94A.535(3)(y) that the injuries substantially

exceed the level of bodily harm necessary to satisfy the elements of the offense. Fletcher waived

his right to a jury trial. The matter proceeded to a bench trial.

        The trial court found Fletcher guilty as charged. The trial court entered the following

findings after trial:

        1. During the early morning hours of June 1, 2018, Zachary A. Fletcher was the
        driver of a vehicle at the time that the vehicle was involved in a crash occurring on
        Marine Drive in Port Angeles, Clallam County, Washington.

        2. At the time of the crash Zachary A. Fletcher was operating the vehicle in a
        reckless manner and while under the influence of intoxicating liquor.

        3. At the time of the crash, Jacob Torey was a passenger in the vehicle being driven
        by Zachary A. Fletcher.

        4. At the time of the crash, Naomi Kuykendall was a passenger in the vehicle being
        driven by Zachary A. Fletcher.

        5. Zachary A. Fletcher’s driving at the time of the crash caused substantial bodily
        harm to Jacob Torey. Jacob Torey was ejected from the vehicle. He suffered a
        severe T12 fracture-translation with large bony fragment obliterating the central
        canal. He is now paralyzed below the point of the T12 fracture. He also suffered
        various other injuries which included broken bones.

        6. Zachary A. Fletcher’s driving at the time of the crash caused substantial bodily
        harm to Naomi Kuykendall. Naomi Kuykendall suffered fractures involving the
        anterior and posterior arch of C1 as well as fractures to her thoracic spine and her
        manubrium sterni. The injury to C1 was treated operatively by the placing of screws
        and continues to cause her loss of motion.

        7. Jacob Torey’s injuries substantially exceeded the substantial bodily harm
        necessary to satisfy the elements of the charged offense.

        8. Naomi Kuykendall’s injuries substantially exceeded the substantial bodily harm
        necessary to satisfy the elements of the charged offense.

Clerk’s Papers at 17-18.


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No. 54502-1-II



       The standard range for these crimes was 12+ to 14 months. At sentencing, the State

requested an exceptional sentence of 72 months for count I based on the severity of Torey’s

injuries and 24 months for count II based on Kuykendall’s injuries to be served concurrently.

Fletcher asked for a sentence within the standard range, arguing that because Kuykendall and

Torey were willing participants, the trial court should consider their participation as a mitigating

factor and balance that against the aggravating factor of the victims’ injuries. The trial court

considered this argument, stating:

       I’ve spent considerable amount of time thinking about this case, thinking about
       today, reading all the cases I could find where there have been convictions for
       vehicular assault and punishments that courts have imposed as a result of that and
       how the facts of those cases are similar to or dissimilar from this case — to try and
       come up with some sort of sensible approach to what should occur here.
                ....

               In this case, the severity of the injuries are something clearly the Court has
       to consider. The participation of others is also embodied in our law as something
       for the Court to consider.

               I don’t have the ability to really express with clarity in a way that probably
       can answer everybody’s questions or how all that gets synthesized into a final
       decision in this matter. But I do believe that as I found at the trial, that an
       aggravating factor is clearly applicable because of the nature of the injuries that
       these victims have suffered and will continue to suffer.
                ....

       [T]hat’s not to say there’s not others that may be responsible, for example,
       somebody provided minors alcohol that night, that was probably a crime for
       whoever did that. Um, we had minors drinking, but we also—uh, you allowed that
       to occur in your presence and in your car. All those factors get weighed somehow.

3 Report of Proceedings (RP) (Mar. 11, 2020) at 98-99.

       The court then imposed an exceptional sentence of 48 months on each count to run

concurrently.


                                                 4
No. 54502-1-II


       Fletcher appeals his convictions and sentence.

                                            ANALYSIS

 I. THE TRIAL COURT IS NOT REQUIRED TO MAKE FINDINGS OF MITIGATING FACTORS WHEN IT
                       IMPOSES AN EXCEPTIONAL SENTENCE UPWARD

        As a preliminary matter, Fletcher argues that the trial court was required to make a

written finding on the mitigating factor that the victims were willing participants in the incident.

We disagree.

       To determine whether the trial court was required to issue findings on the mitigating

factor, we must first ascertain the meaning of the relevant statutes, RCW 9.94A.535 and RCW

9.94A.537, subsections (3) and (6).

       We review questions of statutory interpretation de novo. State v. Ervin, 169 Wn.2d 815,

820, 239 P.3d 354 (2010). When a court interprets a statute, its objective is to determine the

legislature’s intent. Ervin, 169 Wn.2d at 820. If the statute’s meaning is plain on its face, we

give effect to that plain meaning. Ervin, 169 Wn.2d at 820. To determine the plain meaning of a

statute, courts examine the text of the statutory provision, and the “‘context of the statute in

which that provision is found, related provisions, and the statutory scheme as a whole.’” Ervin,

169 Wn.2d at 820 (quoting State v. Jacobs, 154 Wn.2d 596, 600, 115 P.3d 281 (2005)). If, after

this inquiry, the statute is susceptible to more than one reasonable interpretation, it is ambiguous

and we “‘may resort to statutory construction, legislative history, and relevant case law for

assistance in discerning legislative intent.’” Ervin, 169 Wn.2d at 820 (quoting Christensen v.

Ellsworth, 162 Wn.2d 365, 373, 173 P.3d 228 (2007)).

       RCW 9.94A.535 imposes requirements on sentencing courts when they depart from the

standard range sentence. It states that “[w]henever a sentence outside the standard sentence


                                                  5
No. 54502-1-II


range is imposed, the court shall set forth the reasons for its decision in written findings of fact

and conclusions of law.” RCW 9.94A.535.

        RCW 9.94A.537 governs aggravating circumstances and sentences above the standard

range. It states, in relevant part,

        (3) The facts supporting aggravating circumstances shall be proved to a jury beyond
        a reasonable doubt. The jury’s verdict on the aggravating factor must be unanimous,
        and by special interrogatory. If a jury is waived, proof shall be to the court beyond
        a reasonable doubt, unless the defendant stipulates to the aggravating facts.

        ....

        (6) If the jury finds, unanimously and beyond a reasonable doubt, one or more of
        the facts alleged by the state in support of an aggravated sentence, the court may
        sentence the offender pursuant to RCW 9.94A.535 to a term of confinement up to
        the maximum allowed under RCW 9A.20.021 for the underlying conviction if it
        finds, considering the purposes of this chapter, that the facts found are substantial
        and compelling reasons justifying an exceptional sentence.

RCW 9.94A.537(3), (6).

        The only statute discussing the findings requirements is RCW 9.94A.535. The plain

language of the statute requires the trial court to enter findings and conclusions only to support

its decision for an exceptional sentence. Nowhere in the statute does the legislature require the

sentencing court to issue findings about factors it considered but which did not ultimately

influence its decision. See State v. Davis, 47 Wn. App. 91, 96, 734 P.2d 500 (1987) (holding that

a sentencing judge “need only enter findings in support of an exceptional sentence.”).3




3
  Davis analyzed RCW 9.94A.120, a version of the statute that has since been held to be
unconstitutional as applied for reasons that are not relevant here. See 47 Wn. App. at 96-98;
Blakely v. Wash., 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004). However, the
language in RCW 9.94A.120 is identical to the language in the current version of RCW
9.94A.535. Davis, 47 Wn. App. at 96-98.


                                                  6
No. 54502-1-II


       In Davis, the court rejected the same argument that Fletcher makes here: that the trial

court was required to issue findings on mitigating factors even when it imposes an exceptional

sentence upward. The court in Davis reasoned that a trial court is only required to issue findings

on mitigating factors “if the trial court wished to sentence the defendant to a term less than the

presumptive sentence under the [Sentencing Reform Act].” Davis, 47 Wn. App. at 96 (emphasis

added). We see no reason to depart from the holding in Davis.

       Moreover, Fletcher’s interpretation would lead to absurd results. A reading of a statute

that produces absurd results must be avoided because it will not be presumed that the legislature

intended absurd results. Ervin, 169 Wn.2d at 823-24. Fletcher’s interpretation of the statute

would require sentencing courts to issue findings for every factor that could possibly be

considered in sentencing, even factors that did not ultimately affect the decision. Such a

requirement would lead a sentencing court to issue extensive findings and conclusions on every

conceivable mitigating or aggravating factor each time it imposed an exceptional sentence

regardless of its relevance to the decision. This result is impractical, if not impossible. The

purpose of findings is to enable the appellate courts to review the sentence imposed by the lower

court. RCW 9.94A.585(5). Findings are not meant to be an exhaustive summary of all the facts

affecting any factor implicated in the case. See RCW 9.94A.535. Fletcher’s suggested reading

of the statute would lead to an absurd result.

       Fletcher also argues that RCW 9.94A.537 subsections (3) and (6) require the trial court to

find both “mitigating and/or aggravating factors” before it imposes an exceptional sentence in

any direction if the facts present “substantial and compelling reasons justifying an exceptional

sentence.” Br. of Appellant at 8. The argument fails.



                                                 7
No. 54502-1-II


       RCW 9.94A.537 applies only to aggravating factors, not mitigating factors. Aggravating

factors and mitigating factors are procedurally different because each one requires a different

standard of proof. RCW 9.94A.537(3) (the standard of proof for aggravating factors is beyond a

reasonable doubt), .535(1) (the standard of proof for mitigating factors is by a preponderance of

the evidence). Therefore, it is erroneous to apply to mitigating factors statutory principles

applicable only to aggravating factors.

       Fletcher cites to State v. Hinds, 85 Wn. App. 474, 487, 936 P.2d 1135 (1997), to support

his position that the court “is obliged to find a causal connection between the actions of the

victim as a willing participant” and the vehicular assault. Br. of Appellant at 10. In Hinds, the

trial court convicted Hinds of one count of vehicular homicide and imposed an exceptional

sentence downward. Hinds, 85 Wn. App. at 476. The Hinds court remanded the case to the trial

court to issue findings supporting a causal link between the accident and the victim’s

participation. Hinds, 85 Wn. App. at 482-86. Hinds is distinguishable because the court there

imposed an exceptional sentence downward. Hinds, 85 Wn. App. at 481. It was appropriate for

the appellate court to remand the case to the trial court to issue findings on the mitigating factors

it considered when it imposed the exceptional sentence downward. Hinds does not stand for the

proposition that a court is required to issue findings on mitigating factors even when the trial

court imposes an exceptional sentence upward. Therefore, Hinds is inapplicable.

       Fletcher also cites to State v. Grayson, 154 Wn.2d 333, 342, 111 P.3d 1183 (2005), to

support his position that a defendant is entitled to request a downward sentence and to have his

request actually considered. However, Fletcher never asked for an exceptional sentence

downward. He asked for a sentence within the standard range. In any event, the trial court did



                                                  8
No. 54502-1-II


consider Fletcher’s request. At sentencing, the trial court considered the severity of the injuries

as well as the participation of others, stating that it had spent a considerable amount of time

reading cases and thinking about Fletcher’s sentence. The court also stated:

                 The law has presumptions. In your case there’s a presumption that we start
       with a standard range of 12 to 14 months for what happened. But then it also has
       . . . safety valves. Safety valves that if a presumptive sentence is excessive, the
       court can do something less than that, or if it’s not sufficient, the court can add time.
               ....

               In this case, the severity of the injuries are something clearly the Court has
       to consider. The participation of others is also embodied in our law as something
       for the Court to consider.
               ....

       But I do believe that as I found at the trial, that an aggravating factor is clearly
       applicable because of the nature of the injuries that these victims have suffered and
       will continue to suffer.

3 RP (Mar. 11, 2020) at 98-99. The trial court considered Fletcher’s request for a sentence

within the standard range but imposed an exceptional sentence because it found that an

aggravating factor justified a higher sentence. Thus, Grayson is not controlling here.

       In conclusion, all of Fletcher’s arguments fail. Neither RCW 9.94A.535 nor RCW

9.94A.537 requires a trial court to issue findings on mitigating factors when it imposes an

exceptional sentence upward. Therefore, we hold that the trial court did not err by not making

findings on the mitigating factor when it imposed an exceptional sentence upward.

    II. THE TRIAL COURT WAS NOT REQUIRED TO BALANCE MITIGATING AND AGGRAVATING
                                      FACTORS

       Fletcher also argues that the trial court erred when it did not balance the mitigating and

aggravating factors. We disagree.




                                                  9
No. 54502-1-II


       Trial courts are not required “to enter into a balancing of aggravating and mitigating

factors on the record.” Davis, 47 Wn. App. at 96-98. The trial court need only support its

decision for an exceptional sentence with findings. Davis, 47 Wn. App. at 96; RCW 9.94A.535.

Here, the trial court did consider the mitigating factor in its sentence by stating that:

       The participation of others is also embodied in our law as something for the Court
       to consider . . . But I do believe that as I found at the trial, that an aggravating factor
       is clearly applicable because of the nature of the injuries that these victims have
       suffered and will continue to suffer.

3 RP (Mar. 11, 2020) at 98-99. The trial court was not required to balance the mitigating and

aggravating factors, and, to the extent that it was required to consider the mitigating factor, it did

so.

       Fletcher cites to State v. Ziglar, 209 N.C. App. 461, 705 S.E.2d 417 (2011), where a trial

court held that an aggravating factor and a mitigating factor “essentially cancel each other out.”

Ziglar, 209 N.C. App. at 463. The Ziglar court imposed a sentence within the standard range.

Ziglar, 209 N.C. App. at 463. Setting aside the fact that Ziglar is a case from North Carolina and

the language Fletcher cites is merely from the facts of the case, the case is otherwise

distinguishable. The court in Ziglar imposed a sentence within the standard range, and the

reviewing court held that Ziglar could not appeal his standard range sentence. Ziglar, 209 N.C.

App. at 465-66. Moreover, Ziglar does not stand for the proposition that courts are required to

have mitigating and aggravating factors “cancel each other out.” Ziglar, 209 N.C. App. at 463.

It was simply one trial court’s reasoning as to why it did not impose an exceptional sentence.

       We hold that the trial court did not err when it did not balance the mitigating and

aggravating factors, and to the extent it was required to, the trial court considered the mitigating

factor. Thus, Fletcher’s argument fails.


                                                   10
No. 54502-1-II


            III. THE TRIAL COURT DID NOT ERR IN IMPOSING AN EXCEPTIONAL SENTENCE

       Fletcher’s argument calls into question the propriety of his exceptional sentence. He

argues that his sentence is unsupported by the record and is clearly excessive. He also argues

that the reasons supplied by the trial court do not justify imposing an exceptional sentence. We

disagree.

       To reverse a sentence that is outside the standard sentence range, the reviewing court

must find that (a) the reasons supplied by the sentencing court are not supported by the record

that was before the judge; (b) that those reasons do not justify a sentence outside the standard

sentence range for that offense; or (c) that the sentence imposed was clearly excessive or clearly

too lenient. RCW 9.94A.585(4). Each prong corresponds to its own standard of review. State v.

Law, 154 Wn.2d 85, 93, 110 P.3d 717 (2005).

A.     The Record Supports the Reasons Supplied by the Trial Court

       We review whether the reasons given by the trial court for the exceptional sentence are

supported by the record under a clearly erroneous standard. Law, 154 Wn.2d at 93. A finding of

fact is clearly erroneous if no substantial evidence supports it. State v. Morris, 87 Wn. App. 654,

659, 943 P.2d 329 (1997). Unchallenged findings of fact become verities on appeal. In re

Davis, 152 Wn.2d 647, 679, 101 P.3d 1 (2004).

       RCW 9.94A.535(3)(y) permits the court to impose an exceptional sentence upward if it

finds that the “victim’s injuries substantially exceed the level of bodily harm necessary to satisfy

the elements of the offense.” One of the elements for vehicular assault is that the victim suffered

substantial bodily harm. RCW 46.61.522(1)(a). “Substantial bodily harm” is defined as “bodily

injury which involves a temporary but substantial disfigurement, or which causes a temporary



                                                 11
No. 54502-1-II


but substantial loss or impairment of the function of any bodily part or organ, or which causes a

fracture of any bodily part.” RCW 9A.04.110 (emphasis added).

       The trial court imposed an exceptional sentence because it found, pursuant to RCW

9.94A.535(3)(y), that the victims’ injuries substantially exceeded the level of bodily harm

necessary to satisfy the elements of the offense. Fletcher does not contest the trial court’s

findings, and the findings are supported by the record. Both victims suffered permanent loss or

impairment in function. Torey suffered a severe fracture which resulted in paralysis from the

waist down. And, Kuykendall suffered from fractures that required doctors to place screws and a

metal rod down her neck, restricting her range of motion. Both findings are supported by the

victims’ testimony. Thus, the reasons supplied by the trial court are supported by the record.

B.     The Reasons Supplied by the Trial Court Justify an Exceptional Sentence Upward

       We review whether the reasons supplied by the trial court justify a departure from the

standard range under a de novo standard. Law, 154 Wn.2d at 93. In our review of the legal

adequacy of an aggravating factor, we employ a two-part test: “(1) The trial court may not base

an exceptional sentence on factors the Legislature necessarily considered in establishing the

standard sentencing range; and (2) the aggravating factor must be sufficiently substantial and

compelling to distinguish the crime in question from others in the same category.” State v.

Jennings, 106 Wn. App. 532, 555, 24 P.3d 430, 442-43 (2001).

       To support a conviction for vehicular assault, the level of injury required is “substantial

bodily injury,” which is injury that “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.” RCW 46.61.522(1)(a); RCW 9A.04.110.



                                                 12
No. 54502-1-II


       RCW 9.94A.535 permits the trial court to impose a sentence outside the standard range if

one of the circumstances in RCW 9.94A.535(2) or (3) is met. Under RCW 9.94A.535(3)(y), a

finding that the victim’s injuries substantially exceed the level of bodily harm necessary to

satisfy the elements of the offense supports an exceptional sentence upward.

       Here, both prongs of the test are met. First, the trial court determined that Kuykendall’s

and Torey’s injuries exceeded the level of bodily harm required for the offense beyond a

reasonable doubt. To satisfy a vehicular assault conviction, the State was required to show

“temporary” loss in function. RCW 46.61.522; RCW 9A.04.110. But both victims suffered

substantially more than a temporary loss in function: Torey is paralyzed, and Kuykendall

suffered permanent loss of function in her neck as well as memory loss. The trial court correctly

concluded that the State proved the aggravating factor beyond a reasonable doubt. Therefore, the

trial court did not base its decision for an exceptional sentence on factors the legislature

necessarily considered in establishing the standard sentencing range.

       Second, the aggravating factor was sufficiently substantial and compelling to distinguish

the crime in question from others in the same category because the legislature specifically

included the present circumstance as an aggravating factor under RCW 9.94A.535(3)(y).

       Thus, the reasons justify the exceptional sentence as a matter of law because the statute

states that this finding is grounds for an exceptional sentence. Therefore, the reasons supplied by

the trial court justify the exceptional sentence.

C.     The Exceptional Sentence Was Not Clearly Excessive

       If the reasons are supported by the record and justify an exceptional sentence, we can still

reverse an exceptional sentence if the sentence imposed was clearly excessive or clearly too



                                                    13
No. 54502-1-II


lenient. State v. Ritchie, 126 Wn.2d 388, 392, 894 P.2d 1308 (1995). We review whether the

sentence is too excessive or too lenient for an abuse of discretion. Law, 154 Wn.2d at 93.4

       A sentence is clearly excessive when it is “based on untenable grounds or untenable

reasons, or an action no reasonable judge would have taken.” State v. Branch, 129 Wn.2d 635,

649-50, 919 P.2d 1228 (1996). When examining whether the trial court abused its discretion by

imposing a sentence that is clearly excessive, the reviewing court does not engage in a

proportionality review to determine whether the sentence is comparable to sentences in other

similar cases. Ritchie, 126 Wn.2d at 396.

       Here, the State recommended an exceptional sentence of 72 months, and the trial court

imposed 48 months. Considering the severity of the victims’ injuries and the lifelong

consequences that accompany those injuries, the exceptional sentence was not based on

“untenable or unreasonable grounds.” Branch, 129 Wn.2d 650. And, Fletcher has not shown

that no reasonable judge could have imposed the exceptional sentence.

       Based on the above, Fletcher’s argument fails, and the exceptional sentence was not

clearly excessive.

                                         CONCLUSION

       We hold that the trial court (1) was not required to make findings on the mitigating factor

when it imposed an exceptional sentence upward, (2) did not err by not balancing the mitigating

and aggravating factors, and (3) did not err in imposing an exceptional sentence upward.

Accordingly, we affirm Fletcher’s convictions and sentence.



4
  Because Fletcher’s sentence is in an exceptional sentence upward, we only consider whether
the sentence was too excessive.


                                               14
No. 54502-1-II


       A majority of the panel having determined that only the foregoing portion of this opinion

will be printed in the Washington Appellate Reports and that the remainder shall be filed for

public record in accordance with RCW 2.06.040, it is so ordered.

                               UNPUBLISHED TEXT FOLLOWS

                     IV. STATEMENT OF ADDITIONAL GROUNDS FOR REVIEW

       In his SAG, Fletcher argues that the trial court erred in finding that he was the driver and

that the State violated his due process rights by improperly handling key evidence. He also

argues that the prosecutor committed prosecutorial misconduct during closing argument when he

commented on Fletcher’s refusal to testify.

A.      Additional Facts

       At trial, the defense called expert witness George Chan, a forensic scientist. He

identified a blood sample as Kuykendall’s. Based on his experience, Kuykendall’s blood, which

was found by the front seat, provided “strong indication” that Kuykendall was in the driver seat.

2 RP (Feb. 13, 2020) at 690. The defense also called witness David Wells, a reconstruction

expert, who testified that based on collision dynamics and Chan’s DNA analysis, the evidence

makes it likely that Kuykendall was the driver. Fletcher relies on these two pieces of evidence to

argue that Kuykendall was the driver.

       The State introduced evidence of Fletcher admitting, four times, to being the driver when

the accident occurred. It also introduced expert testimony that the blood in the car is

inconclusive of the seating arrangement at the time of the collision due to the impact, which may

have caused the victims’ blood to shift in the car. In addition, the State introduced a video taken




                                                15
No. 54502-1-II


by Kuykendall shortly before the collision which showed Fletcher in the driver’s seat. 1 RP at

360.

       During the State’s closing argument, the prosecutor stated:

       just briefly responding to some of the things [counsel] said, and the first one is he
       says that none of the three people in the truck remember what happened. But what
       is the evidence that Mr. Fletcher doesn’t remember what happened? What evidence
       was presented at this trial that he does not remember what happened? None. There’s
       no evidence of that.

3 RP (Feb. 18, 2020) at 45-46. Fletcher objected to this statement, but the trial court overruled

the objection. The prosecutor went on to comment on the fact that the defense never presented

evidence supporting its claim that Fletcher had no memory of the incident stating:

       In fact, Mr. Fletcher went to the doctor twice, on June 1st and June 12th, and neither
       time endorses any sort of memory issues. There’s no evidence to back up that
       statement. So there’s still no explanation for why he would confess five times to
       four people over two days to being the driver.

3 RP (Feb. 18, 2020) at 46.

B.     Sufficiency of the Evidence and Due Process

       Fletcher argues that the State failed to meet its burden of proving vehicular assault

beyond a reasonable doubt for two reasons: (1) the defense presented evidence at trial that

Fletcher was not the driver at the time of the collision, and (2) the State mishandled a piece of

evidence that could have exonerated Fletcher. We hold that the evidence at trial was sufficient to

support a conviction of vehicular assault, and we do not reach the mishandling of evidence issue

because Fletcher relies on evidence outside the record.

       1. Sufficiency of the Evidence

       Fletcher argues that the evidence was insufficient to support a finding that he was the

driver at the time of the collision, an essential element of vehicular assault. We disagree.


                                                 16
No. 54502-1-II


        When reviewing a sufficiency of the evidence claim, we do not hear or weigh evidence,

find facts, or substitute our opinions for those of the trier-of-fact. Thorndike v. Hesperian

Orchards, Inc., 54 Wn.2d 570, 572-75, 343 P.2d 183 (1959). Instead, we defer to the factual

findings made by the trier-of-fact. State v. Thomas, 150 Wn.2d 821, 874-75, 83 P.3d 970 (2004).

        Here, there was conflicting evidence at trial, including evidence from experts. But,

Fletcher confessed four times that he was the driver to various eye witnesses shortly after the

accident. He was in a video filmed by Kuykendall that showed him in the driver’s seat before

the collision. Judging by the evidence presented at trial, a rational trier of fact could find that

Fletcher was the driver, and thus, the evidence supports a conviction of guilt. Fletcher is asking

this court to reweigh the evidence, but we cannot impede on a function reserved exclusively for

the trier-of-fact. State v. Smith, 31 Wn. App. 226, 228, 640 P.2d 25 (1982) (“Judgment as to the

credibility of witnesses and the weight of evidence is the exclusive function of the jury.”).

        We hold that the trial court had sufficient evidence to find that Fletcher was the driver at

the time of the collision.

        2. Handling the Evidence

        Next, Fletcher argues that the evidence presented at trial was contaminated because the

State improperly handled airbags and that removal of the driver’s side airbag was done in bad

faith. He argues that “it was not . . . routine practice or policy” for the Sheriff to remove

valuable evidence the way the deputy removed this airbag. SAG at 8. We cannot reach this

issue because Fletcher refers to matters outside the record on appeal. State v. McFarland, 127

Wn.2d 322, 335, 899 P.2d 1251 (1995). The record on appeal contains no information or




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No. 54502-1-II


evidence about how the airbag was removed and whether the manner in which this airbag was

removed conflicted with the standard procedure for airbag removal.

       Accordingly, we cannot address this argument.

C.     Prosecutorial Misconduct

       Fletcher argues that the prosecutor committed misconduct when he commented on

Fletcher’s refusal to testify. We disagree because the comment was not improper.

       We review prosecutorial misconduct for an abuse of discretion. State v. Wang, 5 Wn.

App. 2d 12, 30, 424 P.3d 1251 (2018). We view statements made “within the context of the

prosecutor’s entire argument, the issues in the case, the evidence discussed in the argument, and

the jury instructions.” State v. Dhaliwal, 150 Wn.2d 559, 578, 79 P.3d 432 (2003). During

closing argument, prosecutors have wide latitude to argue reasonable inferences from the

evidence. In re Pers. Restraint of Glasmann, 175 Wn.2d 696, 704, 286 P.3d 673 (2012). It is

not improper for a prosecutor to argue that a defendant is guilty of the crimes charged when,

viewed in the context of the entire argument, it is clear that the prosecutor is not expressing a

personal opinion, but is arguing from the facts presented at trial. State v. McKenzie, 157 Wn.2d

44, 53, 134 P.3d 221 (2006).

       In a prosecutorial misconduct claim, the defendant bears the burden of proving that the

prosecutor’s conduct was both improper and prejudicial. McKenzie, 157 Wn.2d at 52. The

defendant must first show that the prosecutor’s statements are improper. McKenzie, 157 Wn.2d

at 52. If the defendant establishes that the prosecutor made improper statements and the

defendant objected at trial, the defendant must show that the prosecutor’s misconduct resulted in

prejudice that had a substantial likelihood of affecting the outcome. McKenzie, 157 Wn.2d at 52.



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       Here, the prosecutor’s comment referred to the evidence presented at trial. The defense’s

theory relied on attacking the victims’ credibility, claiming that due to the trauma, none of the

passengers, including Fletcher, could recall what happened. However, on at least four different

occasions after the accident, Fletcher admitted to being the driver, which debunked the defense’s

theory. The prosecutor’s comment was in direct reference to the evidence presented at trial; it

was not a comment about Fletcher’s refusal to testify nor was it an expression of personal

opinion.

       Because the prosecutor’s comment was directly related to the evidence presented at trial,

it was not improper, and therefore, does not constitute misconduct.

       Fletcher raises no reversible issues in his SAG. We reject his claims that the trial court

did not have sufficient evidence to convict him, that the State mishandled the evidence, and that

the prosecutor committed misconduct. Sufficient evidence supports Fletcher’s conviction for

vehicular assault, and the prosecutor did not commit misconduct because his comment was not

improper.

       Accordingly, we affirm Fletcher’s convictions and sentence.



                                                      Worswick, J.
 We concur:



Glasgow, A.C.J.




Veljacic, J.



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