State v. Burrus

• Decision Date: 19 April 2021
• Docket Number: No. 80849-4-I,80849-4-I
• Citation: 17 Wash.App.2d 162,484 P.3d 521
• Court: Washington Court of Appeals
• Parties: STATE of Washington, Respondent, v. Christopher Sean BURRUS, Appellant.

17 Wash.App.2d 162

484 P.3d 521

STATE of Washington, Respondent,

v.Christopher Sean BURRUS, Appellant.

No. 80849-4-I

Court of Appeals of Washington, Division 1.

April 19, 2021

Washington Appellate Project, 1511 Third Avenue, Suite 610, Seattle, WA, 98101, Sara Sofia Taboada, Washington Appellate Project, 1511 3rd Ave., Suite 610, Seattle, WA, 98101-3647, Jan Trasen, Attorney at Law, 1511 3rd Ave., Ste. 610, Seattle, WA, 98101-3647, for Appellant.

Prosecuting Atty. King County, King Co Pros/App Unit Supervisor, W554 King County Courthouse, 516 Third Avenue, Seattle, WA, 98104, Donna Lynn Wise, King County Prosecutor's Office, 516 3rd Ave., Ste. W554, Seattle, WA, 98104-2362, for Respondent.

PUBLISHED OPINION

Chun, J. ¶ 1 Christopher Burrus poured gasoline on Kasey Busch and threw a lit flare at him, causing him to catch fire. Busch suffered second and third degree burns on 30 percent of his body. The State charged Burrus with attempted first degree murder with the aggravating factor that his conduct manifested deliberate cruelty. The jury found Burrus guilty as charged. Based on the jury's finding of deliberate cruelty, the trial court imposed an exceptional sentence. Burrus challenges the to-convict instruction and the exceptional sentence. We affirm.

I. BACKGROUND

¶ 2 Burrus spent time at an industrial warehouse referred to as "the shop," where he would occasionally work, salvaging materials and electronics, and sleep. Joe Colella, whose family owned the shop, and Ryan Moore lived there and Burrus had known them for years. Busch occasionally looked for welding work at the shop and knew Burrus, Colella, and Moore.

¶ 3 During the summer of 2017, following a dispute, Colella told Burrus he was not welcome in the shop. By November, Burrus was staying with his then-girlfriend Chantal Lotorto and was not sleeping at the shop. Burrus claims that Lotorto dated Busch before dating him, but the State disputes this. Busch testified that he and Lotorto never got along and that he suspected that she had stolen some of his work tools.

¶ 4 In November 2017, Busch lost his home and began sleeping at the shop. A few days later, Lotorto went to the shop to remove her belongings upon Colella's request. Burrus went with her. Because he was unwelcome in the shop, Burrus waited outside by Lotorto's van. Busch noticed that Lotorto was carrying a specialized wrench that he suspected she had stolen from him. He accused her of stealing it and grabbed it. The two struggled over the wrench and then Busch released it, causing Lotorto to fall backwards. Busch testified that Lotorto then raised the wrench as if to strike him, he picked up a tool to defend himself, and she turned and left the shop. Lotorto told Burrus that she had fought with Busch and showed him a small mark on her face that she indicated that Busch caused. Burrus said he was "a little hurt and frustrated" as a result.

¶ 5 Busch went outside to speak with Burrus and offered him $50 to get the wrench back from Lotorto. Busch testified that during this conversation he saw no indication that Burrus was angry with him.

¶ 6 Busch and Moore then left the shop to go to a scrapyard; they were gone for about an hour. When they returned, Moore saw Burrus poke his head around the corner of the building and then duck back into the alley where Lotorto's van was parked. Burrus emerged from the alley holding a "Big Gulp" cup. As Burrus approached the car, Busch saw something in Burrus's sleeve, which he thought might be his stolen wrench. Burrus spoke briefly with Moore and then approached Busch. He called out to Busch and threw the contents of the cup on Busch. Busch immediately realized that the cup contained gasoline and began to flee. Burrus then lit a roadside flare and threw it at Busch, causing him to catch fire. Busch rolled into the street desperately trying to extinguish the flames. Burrus fled the scene. Moore tried to put out the fire but caught himself on fire as well. Colella dragged a hose from the shop and extinguished the flames. Multiple passersby called 911. When first responders arrived, Busch was in extreme pain. Busch suffered second and third degree burns on over 30 percent of his body. Busch underwent skin grafts and remained in the hospital for almost two months to recover.

¶ 7 The State charged Burrus with attempted first degree murder with the aggravating factor that his conduct manifested deliberate cruelty.

¶ 8 During trial, Burrus admitted to dumping gasoline on Busch and throwing a lit flare at him. But he denied intending to kill Busch. Burrus testified that his intention was to intimidate Busch and look like he was standing up for Lotorto in front of the others by causing a quick burst of flames. Burrus said he expected that lighting gasoline would result in a similar flame as lighting lighter fluid and was horrified by what actually happened. Burrus said he had not decided to engage in this conduct until he was approaching Busch and that he had the gasoline in a cup because he had been "huffing"¹ it. He also said that he had the flare because he had picked it up and put it in his pocket earlier that day.

¶ 9 The trial court instructed the jury on attempted first degree murder. The to-convict instruction for attempted first degree murder did not contain the element of premeditation. After the jury had begun its deliberation, Burrus requested that the trial court instruct the jury on the lesser included count of attempted second degree murder. The court did so. The parties gave supplemental closing arguments based on the added instruction.

¶ 10 The jury found Burrus guilty of attempted first degree murder and found that the State proved the aggravating factor of deliberate cruelty.

¶ 11 The State sought an exceptional sentence of 300 months. The standard sentence range for the crime is 180–240 months. During the sentencing hearing, Busch asked the court to give Burrus the lowest sentence possible. Burrus requested a mid-range sentence of 210 months and apologized to Busch. The trial court found that the aggravating factor of deliberate cruelty was a compelling reason to justify an exceptional sentence and imposed a sentence of 300 months.

II. ANALYSIS

A. Instructional Error

¶ 12 Burrus says that the trial court erred by omitting the element of premeditation in its to-convict instruction for attempted first degree murder.² The State responds that the court was not required to do so. We agree with the State.

¶ 13 "[W]e review the challenged instructions de novo in the context of the instructions as a whole." State v. Imokawa, 194 Wash.2d 391, 396, 450 P.3d 159 (2019).

¶ 14 "Jury instructions satisfy due process ‘when, taken as a whole, they properly inform the jury of the applicable law, are not misleading, and permit the defendant to argue his theory of the case.’ " State v. Orn, No. 98056-0, 197 Wash.2d 343, 361, 482 P.3d 913, 924 (Wash. Mar. 18, 2021) https://www.courts.wa.gov/opinions.pdf/980560.pdf (quoting State v. Tili, 139 Wash.2d 107, 126, 985 P.2d 365 (1999) ); U.S. CONST . amend. XIV ; CONST . art. I, § 3. A to-convict instruction must " ‘contain all of the elements of the crime because it serves as a ‘yardstick’ by which the jury measures the evidence to determine guilt or innocence.’ " Orn, 197 Wash.2d at 361, 482 P.3d 913 (quoting State v. Smith, 131 Wash.2d 258, 263, 930 P.2d 917 (1997) ).

¶ 15 "The statutory crime of attempt ‘contains two essential elements the State has to prove to secure a conviction: (1) intent to commit a specific crime and (2) any act constituting a substantial step toward the commission of that crime.’ " Id. (quoting State v. Nelson, 191 Wash.2d 61, 71, 419 P.3d 410 (2018) ). A to-convict instruction for an attempt crime "need not also set out the elements of the substantive crime attempted," those elements "may be contained in a separate, definitional jury instruction." Id. (citing State v. DeRyke, 149 Wash.2d 906, 911, 73 P.3d 1000 (2003) ; State v. Nelson, 191 Wash.2d 61, 72, 419 P.3d 410 (2018) ).

¶ 16 Our Supreme Court held in Orn that a to-convict instruction for attempted first degree murder need not include the element of premeditation. Id. 197 Wash.2d at 361-62, 482 P.3d 913. In Orn, the trial court instructed the jury on attempted first degree murder based on WPIC 100.02. Id. 197 Wash.2d at 362, 482 P.3d 913. The instruction provided

To convict the defendant of the crime of attempted murder in the first degree ... each of the following elements of the crime must be proved beyond a reasonable doubt:

(1) That on or about August 2, 2016, the defendant did an act that was a substantial step toward the commission of murder in the first degree;

(2) That the act was done with the intent to commit murder in the first degree; and

(3) That the act occurred in the State of Washington.

Id. (alteration in original). A separate instruction defined first degree murder as follows: "A person commits the crime of murder in the first degree when, with a premeditated intent to cause the death of another person, he or she causes the death of such person." Id. (emphasis added). The court determined that the "to-convict instruction did not omit any essential element of the crime of attempt, and ‘taken as a whole’ the jury instructions ‘properly inform[ed] the jury of the applicable law.’ " Id. 197 Wash.2d at 361, 482 P.3d 913 (quoting Tili, 139 Wash.2d at 126, 985 P.2d 365 ).

¶ 17 Here, the trial court gave this to-convict instruction to the jury:

To convict the defendant of the crime of attempted murder in the first degree, each of the following elements of the crime must be proved beyond a reasonable doubt:

(1) That on or about November 7, 2017, the defendant did an act that was a substantial step toward the commission of murder in the first degree;

(2) That the act was done with the intent to commit murder in the first degree; and

(3) That the act occurred in the State of Washington.

As in Orn, this instruction is based on WPIC 100.02. A...