Opinion
No. 29058-1-III.
Filed: July 14, 2011. UNPUBLISHED OPINION.
Appeal from a judgment of the Superior Court for Benton County, No. 07-1-00170-4, Robert G. Swisher, J., entered April 29, 2010.
Affirmed by unpublished opinion per Brown, J., concurred in by Sweeney and Siddoway, JJ.
A jury found Jonathan J. McLane guilty of three counts of first degree child rape and one count of third degree child molestation. The sentencing court imposed an exceptional sentence, which this court reversed and remanded for resentencing. See State v. McLane, noted at 149 Wn. App. 1007, review denied, 166 Wn.2d 1027, 2009 WL 485368 ( McLane I). The court, again, imposed an exceptional sentence. Mr. McLane appeals the new sentence, contending for the first time the original jury was not properly instructed regarding the aggravating factors. We affirm.
FACTS
In November 2007, a jury found Mr. McLane guilty of three counts of first degree rape of a child and one count of third degree child molestation for multiple incidents over several years involving his young daughters. The State alleged three aggravating factors: abuse of position of trust, invasion of privacy, and a pattern of sexual abuse.
The relevant instruction stated:
Position of Trust: The defendant used his position of trust to facilitate the commission of each offense(s).
Invasion of Privacy: Each offense(s) involved an invasion of privacy of the named victims.
Pattern of Sexual Abuse: Each offense(s) was part of an ongoing pattern of sexual abuse of the named victim, who was under the age of 18 years manifested by multiple incidents over a prolonged period of time.
Clerk's Papers at 128. The jury returned special verdicts finding all three aggravating factors. The court imposed an aggravated exceptional sentence of 340 months on the rape convictions and the maximum sentence of 60 months on the molestation conviction. McLane I, 2009 WL 485368, at *3. Mr. McLane appealed his sentence and this court reversed and remanded for resentencing on one of the rape convictions due to reference to the wrong statute and clarification on the molestation charge relating to the community custody term. McLane I, 2009 WL 485368, at *7.
In April 2009, before resentencing, Mr. McLane filed a memorandum objecting, for the first time, to the jury instruction regarding the aggravating factors. The trial court examined the aggravating factors and agreed that abuse of a position of trust needed a definition. The trial court, nevertheless, determined that even though the jury did not have definitions of the other aggravating factors there was sufficient evidence to uphold its determination and any error was harmless. The court resentenced Mr. McLane, imposing the same sentence as before but with the necessary corrections. Mr. McLane again appealed.
ANALYSIS
The sole issue on appeal is whether Mr. McLane's exceptional sentence should be reversed based on instructional error. Relying on State v. Gordon, 153 Wn. App. 516, 223 P.3d 519 (2009), review granted, 169 Wn.2d 1011, 236 P.3d 896 (2010), Mr. McLane argues the jury was required to be instructed regarding the definition of the three aggravating factors alleged by the State.
At trial, Mr. McLane did not object to the jury instructions on this basis. Generally, this court will not consider issues raised for the first time on appeal. RAP 2.5(a); State v. Kirkman, 159 Wn.2d 918, 926, 155 P.3d 125 (2007). However, where the error claimed is a manifest error affecting a constitutional right, it may be raised for the first time on appeal. RAP 2.5(a)(3). The exception under RAP 2.5(a)(3) is a narrow one: a defendant must show that the asserted constitutional error was (1) "manifest" and (2) not harmless beyond a reasonable doubt. State v. Scott, 110 Wn.2d 682, 687, 757 P.2d 492 (1988). Thus, Mr. McLane must first show the error was manifest and not harmless.
"Due process requires a criminal defendant be convicted only when every element of the charged crime is proved beyond a reasonable doubt." State v. O'Hara, 167 Wn.2d 91, 105, 217 P.3d 756 (2009) (citing U.S. Const. amend. XIV; Const. art. I, § 22). "However, the `constitution only requires the jury be instructed as to each element of the offense charged, and the failure of the trial court to further define one of those elements is not within the ambit of the constitutional rule.`" O'Hara, 167 Wn.2d at 105, 217 P.3d 756 (quoting State v. Fowler, 114 Wn.2d 59, 69-70, 785 P.2d 808 (1990)). An aggravating factor is "the functional equivalent of an element." Apprendi v. New Jersey, 530 U.S. 466, 494 n. 19, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000). But, as established by our Supreme Court, the failure of a trial court to further define an element is not a constitutional violation. O'Hara, 167 Wn.2d at 105.
Mr. McLane contends Gordon supports his claim of error. In Gordon, the trial court failed to instruct the jury on the definition of "particularly vulnerable," which would have included the "elements" the State had to prove beyond a reasonable doubt to establish this aggravating sentencing circumstance. 153 Wn. App. at 529-30. The court held, "where an appellate court has further defined the legal standard of a statutory aggravating factor yet the jury instruction fails to include the legal standard, an error of constitutional magnitude is present." Id. at 534. In reviewing Gordon, Division One of this court recently noted, " Gordon appears to be premised on the belief that elements have elements. . . . However, an element does not contain elements." State v. Williams, 159 Wn. App. 298, 313, 244 P.3d 1018 (2011). The Williams' court then noted that the Supreme Court will soon make a determination whether Gordon was correctly decided. Id. Gordon does not mandate appellate relief in this case.
A trial court is not required to impose an exceptional sentence merely because a jury finds an aggravating circumstance proved. Rather, in such a circumstance, the trial court may sentence the defendant to an exceptional sentence if it determines "that the facts found are substantial and compelling reasons justifying an exceptional sentence." RCW 9.94A.537(6). Additionally, a reviewing court may uphold an exceptional sentence if only one of multiple aggravating factors is valid, if the court is satisfied that the trial court would have imposed the same sentence based solely on a valid factor. State v. Cardenas, 129 Wn.2d 1, 12, 914 P.2d 57 (1996).
Assuming without deciding a jury is required to be instructed regarding the definitions of "pattern of abuse" and "abuse of trust" under Gordon, Mr. McLane acknowledges no legal authority requires a definition for "invasion of privacy." Br. of Appellant at 6. The trial court would have clearly imposed an exceptional sentence based on this factor alone given that the court imposed the same sentence on remand. The court intended Mr. McLane receive an exceptional sentence. Invasion of privacy alone is a sufficient basis for an exceptional sentence under Cardenas. Accordingly, any instructional error regarding the other two aggravating factors would be harmless since the outcome would not be any different. See State v. Mason, 160 Wn.2d 910, 927, 162 P.3d 396 (2007) (an error is harmless if there is no reasonable probability that the outcome would have been different).
Mr. McLane has not met his RAP 2.5(a)(3) burden to raise his instructional error issue for the first time on appeal. He is not entitled to appellate relief. Affirmed. A majority of the panel has determined this opinion will not be printed in the Washington Appellate Reports, but it will be filed for public record pursuant to RCW 2.06.040.
SWEENEY, J. SIDDOWAY, J., concur.