State v. Gugsa, No. 53806-3-I (WA 11/14/2005)
| Decision Date | 14 November 2005 |
| Docket Number | No. 53806-3-I,53806-3-I |
| Court | Washington Supreme Court |
| Parties | State of Washington, Respondent, v. Alem Kassa Gugsa, Appellant. |
Appeal from Superior Court of King County. Docket No: 03-1-08131-7. Judgment or order under review. Date filed: 02/06/2004. Judge signing: Hon. Michael C Hayden.
Counsel for Appellant(s), Washington Appellate Project, Attorney at Law, 1511 Third Avenue, Suite 701, Seattle, WA 98101.
Nancy P Collins, Washington Appellate Project, 1511 3rd Ave Ste 701, Seattle, WA 98101-3635.
Alem Gugsa — Information Only (Appearing Pro Se), Mcneil Island Correction Ctr., Doc# 738783, P. O. Box 88900, Steilacoom, WA 98388-0900.
Counsel for Respondent(s), Dana Cashman, King County Prosecutor's Office, 516 3rd Ave Ste W554, Seattle, WA 98104-2390.
Deborah A. Dwyer, King Co Pros Ofc/ Appellate Unit, 516 3rd Ave Ste W554, Seattle, WA 98104-2362.
Prosecuting Atty King County, King Co Pros/App Unit Supervisor, W554 King County Courthouse, 516 Third Avenue, Seattle, WA 98104
A jury convicted Alem Gugsa of two counts of first-degree assault, each with a deadly weapon. Gugsa argues that there was instructional error, and that the court's imposition of consecutive sentences without a jury fact-finding of separate and distinct criminal conduct violated his right to a jury trial. In a statement of additional grounds, Gugsa challenges the imposition of consecutive deadly weapon sentence enhancements and alleges prosecutorial misconduct. Gugsa also argues that the trial court did not hold the State to its burden of proof beyond a reasonable doubt, erred in an evidentiary ruling, and erred in calculating his offender score and sentence range. We agree with Gugsa that the trial court miscalculated his sentence range. We remand for the trial court to correct the scrivener's error. We affirm on all other grounds.
Endeshaw Sabe went with several friends and family members to the Eagles Club between 11:00 pm and midnight on August 9, 2003. Sabe's wife, Emebet Girma, and Girma's cousin, Meheret, were with Sabe's group. The club was hosting an Ethiopian cultural event with live music and dancing. About 600 to 1000 people attended the event.
Some time after they arrived, Sabe was dancing with his family and friends on the dance floor. Five to seven men, including Gugsa, approached. Neither Sabe nor anyone else in his group knew these men. The men separated Meheret from Sabe's group and started dancing with her. Sabe noticed that Meheret was uncomfortable, that the men were harassing her, and that she needed help. He told the men that Meheret did not seem to be happy or comfortable with them. Meheret and Sabe returned to their group and they all sat down.
About 15 or 20 minutes later, after things settled down, Sabe and his group returned to the dance floor. Gugsa returned, this time with about 15 or 16 others. Gugsa touched Sabe on the shoulder and asked if Sabe wanted to fight. Gugsa's group started taking their shirts off. Sabe and Gugsa argued for about one minute. Girma pleaded with Gugsa to leave them alone, saying that they did not want a fight. She also pleaded with Sabe, told him that she was worried, and warned him that she thought Gugsa had something in his pocket.
Gugsa started hitting Sabe with his fist. Girma saw Gugsa take out a knife or dagger, and begged Gugsa to stop and not stab her husband. Gugsa stabbed Sabe's abdomen with the weapon. Another man stabbed Sabe in the back. People kept hitting Sabe after he was stabbed and threw chairs at him. Sabe fell unconscious after about 10 or 15 minutes. Girma lifted Sabe's shirt and saw his intestine bulging out.
Tadele Gebru, another member of Sabe's party, had been in the bathroom before the fighting happened. When he returned, he noticed Girma's clothing stained with blood. Gebru tried to reach her, but Gugsa approached Gebru and stabbed Gebru a total of four times. Each state witness who saw the stabbing, including both victims, identified Gugsa from a sequential photo montage during the investigation and again at trial as the person who committed the assaults.
Girma testified that the entire incident happened between midnight and 2:00 am. Sabe and Gebru arrived at the hospital between 2:40 am and 2:45 am. Sabe spent a week in the hospital and required surgery. Gebru was in the hospital for about six days and also needed surgery. Gebru and Sabe's surgeon testified that both men had life threatening injuries.
The jury convicted Gugsa on two counts of first-degree assault, one count for each stabbing victim.1 The jury found that Gugsa was armed with a deadly weapon during each assault. At sentencing, the trial court found that the two assaults were separate and distinct criminal conduct, and imposed consecutive sentences. The trial court also imposed consecutive two-year terms for each deadly weapon enhancement. Gugsa timely appeals.
Gugsa argues that because the imposition of consecutive sentences had the effect of increasing his total sentence beyond the statutory maximum sentence for any one of the counts, he was denied his constitutional right under recent decisions of the U.S. Supreme Court2 to have a jury determine all of the facts necessary to support consecutive sentencing. The Washington Supreme Court has rejected this argument. In State v. Cubias, ___ Wn.2d ___, ___ P.3d ___, 2005 Wash. LEXIS 800, *2 (2005), the court held that these principles do not apply to the imposition of consecutive sentences for two or more `serious violent offenses' under RCW 9.94A.589(1)(b). The Cubias court concluded that `the trial court's imposition of consecutive sentences under RCW 9.94A.589(1)(b) does not increase the penalty for any single underlying offense beyond the statutory maximum provided for that offense and, therefore, does not run afoul of the decisions of the United States Supreme Court in Apprendi and Blakely.' Cubias, ___ Wn.2d at ___, 2005 Wash. LEXIS 800, *12.
The Cubias court further noted that even if the jury was required to make factual findings supporting consecutive sentences, where the two charges of criminal conduct are against separate victims and the defendant is convicted of both charges, `it is merely a legal conclusion from these factual determinations that the criminal conduct charged in each count was separate and distinct criminal conduct.' Cubias, ___ Wn.2d at ___ n.4, 2005 Wash. LEXIS 800, *11 n.4 (citing In re Pers. Restraint of Orange, 152 Wn.2d 795, 821, 100 P.3d 291 (2004) and State v. Lessley, 118 Wn.2d 773, 778, 827 P.2d 996 (1992)); RCW 9.94A.589(1)(a).
First-degree assault is a serious violent offense. RCW 9.94A.030(37)(a)(v). Thus, the Cubias decision controls. Gugsa was not entitled to a jury determination of whether his two convictions for serious violent offenses constituted separate and distinct criminal conduct under RCW 9.94A.589(1)(b). Furthermore, even were Gugsa entitled to such a determination, the two counts involved different victims and constitute separate and distinct criminal conduct as a matter of law. The trial court did not err in determining that the two crimes were separate and distinct criminal conduct without a jury factfinding.
Gugsa argues that his to-convict instructions were constitutionally inadequate because they failed to set out the precise date and time of the crime, which became material elements of the offense once Gugsa presented an alibi defense. Gugsa also argues that the trial court erred in failing to give the jury his proposed alibi instruction.
A criminal defendant may be convicted only upon proof beyond a reasonable doubt of all the essential elements of the crime charged. In re Winship, 397 U.S. 358, 362-63, 90 S. Ct. 1068, 25 L. Ed. 2d 368 (1970). The to-convict instruction must contain all elements essential to the conviction. State v. Mills, 154 Wn.2d 1, 7, 109 P.3d 415 (2005). The failure to instruct the jury on every element of the crime charged is an error of constitutional magnitude that may be raised for the first time on appeal. Mills, 154 Wn.2d at 6. We review the adequacy of a challenged to-convict jury instruction de novo. Mills, 154 Wn.2d at 7. Although jury instructions are generally sufficient if they are supported by substantial evidence, allow the parties to argue their theories of the case, and when read as a whole properly inform the jury of the applicable law, and we review jury instructions in the context of the instructions as a whole, the reviewing court generally may not rely on other instructions to supply the element missing from the `to convict' instruction.
Mills, 154 Wn.2d at 7 (internal citations and quotations omitted). Gugsa argues that when a defendant presents an alibi defense, the State must prove that a crime occurred at a specific date and time, and that a failure to require the State to do so relieves the State of its burden of proof beyond a reasonable doubt. Gugsa argues that because he presented an alibi defense and the to-convict instructions required the State to prove only that the assaults occurred `on or about August 10, 2003,' rather than stating a specific date and time, the instructions were unconstitutionally deficient.
Gugsa relies on State v. Hayes, 81 Wn. App. 425, 914 P.2d 788 (1996), and State v. Pitts, 62 Wn.2d 294, 382 P.2d 508 (1963). The Hayes court held that where there is no alibi defense and time is not a material element of the crime charged, the language `on or about' is sufficient to admit proof of the act at any time within the statute of limitations. Hayes, 81 Wn. App. at 432. The Hayes decision does not hold that when an alibi defense is presented, the language `on or about' is necessarily insufficient. That issue was more closely addressed in Pitts.
In Pitts, the defendant presented an...
To continue reading
Request your trial