State v. Mckague

Decision Date19 January 2011
Docket NumberNo. 39087–6–II.,39087–6–II.
Citation159 Wash.App. 489,246 P.3d 558
PartiesSTATE of Washington, Respondent,v.Jay Earl McKAGUE, Appellant.
CourtWashington Court of Appeals


Gregory Charles Link, Washington Appellate Project, Seattle, WA, for Appellant.Carol L. La Verne, Thurston County Prosecutor's Office, Heather Stone, Attorney at Law, Olympia, WA, for Respondent.HUNT, J.

[159 Wash.App. 496] ¶ 1 Jay Earl McKague appeals his third degree theft and second degree assault jury convictions and his lifetime sentence as a persistent offender. He argues that: (1) the trial court erred by refusing his request to waive a jury; (2) the evidence was insufficient to support his second degree assault conviction; (3) a jury instruction created a mandatory presumption that improperly relieved the State of its burden of proof; (4) he was denied effective assistance of counsel because his trial counsel withdrew a proposed jury instruction on an inferior degree offense; and (5) the sentencing phase of his trial violated his state and federal due process and equal protection rights1 because a judge, rather than a jury, found the existence of his prior convictions by a preponderance of evidence rather than beyond a reasonable doubt. We affirm his convictions and sentence.

I. Shoplift and Assault

¶ 2 On October 17, 2008, Jay Earl McKague stole a can of smoked oysters from Kee Ho Chang's grocery store in Olympia. When Chang tried to “grab” McKague in the store's parking lot, McKague repeatedly punched 2 Chang, who fell to the ground. I Verbatim Report of Proceedings (VRP) at 105. As Chang fell to the ground, McKague hit Chang several more times before jumping into a car and fleeing. When Chang “tr[ied] to get up,” he “got very dizzy,” and “for a while [he] couldn't get up.” I VRP at 64–65. Eventually, Chang was able to stand up. Officer George Samuelson, who arrived shortly after the incident, described the left side of Chang's face as “extremely puffy.” I VRP at 36. According to Detective Sam Costello, who arrived at the scene and responding to the police dispatch, Chang “app[eared] injured[ ] on the left side of his face and on the back of his head.” I VRP at 49.

¶ 3 An emergency room medical evaluation documented Chang's injuries, which included a concussion, a scalp contusion, and neck and shoulder pain. A computerized axial tomography scan (CT scan) showed a possible occult fracture of Chang's facial bones.3 On the day of the incident, law enforcement officers took photographs of Chang that showed bruising and swelling around his left eye, redness and swelling of his left check, lacerations on his arm, a contusion on his head, and blood on his scalp. The emergency room physician prescribed Vicodin for the pain and cautioned Chang to limit his activities for the next two weeks. Chang's private physician prescribed Chang anti-inflammatory medication. Three days later, law enforcement officers took photographs of Chang's face that showed bruising remaining around Chang's left eye.

II. Procedure

¶ 4 The State charged McKague with first degree robbery, RCW 9A.56.200(1), or in the alternative second degree assault, RCW 9A.36.021(1)(a). He attempted to waive his right to a jury trial and to proceed with a bench trial. The trial court refused, reasoning that: (1) McKague's counsel was very experienced with jury trials; (2) McKague's concern that a jury would try him unfairly because of his criminal history was unfounded, given that a jury would not be told about McKague's criminal history unless he chose to testify; (3) the seriousness of the charges against McKague warranted a jury trial; and (4) the appearance of fairness would be advanced by having more than one person determine McKague's culpability for such serious charges.

¶ 5 McKague requested an instruction on third degree assault as an inferior degree offense of second degree assault.4 The State objected to McKague's request. The trial court initially agreed with the State and denied McKague's request, stating that the evidence did not support the inference that McKague acted only with criminal negligence. In response, McKague indicated that he would request a jury instruction on fourth degree assault as an inferior degree offense to second degree assault. The next day, the trial court reconsidered its previous ruling and granted McKague's request for an instruction on third degree assault. McKague did not request a fourth degree assault instruction.

¶ 6 Ultimately, the trial court gave standard jury instructions5 on: (1) first degree robbery; (2) third degree theft as an inferior degree offense of first degree robbery; (3) second degree assault; and (4) third degree assault as an inferior degree offense of second degree assault. McKague did not challenge the language of the second degree assault instruction or argue that the wording was improper. He did not object to the trial court's instruction that [w]hen recklessness as to a particular fact is required to establish an element of a crime, the element is also established if a person acts intentionally or knowingly”; nor did he argue that this instruction created an improper mandatory presumption. CP at 47.

¶ 7 In closing, McKague argued that a third degree assault conviction, rather than second degree, was appropriate because: (1) the evidence tended to show McKague's mental state was criminal negligence; and (2) the severity of Chang's injuries rose to the level of third degree assault, but not second degree. The jury found McKague guilty of second degree assault and third degree theft.

¶ 8 Based on his prior felony convictions for second degree assault, first degree kidnapping, and first degree robbery, the State had alleged that McKague was a persistent offender under RCW 9.94A.570. The trial court examined certified copies of the judgment and sentence forms from McKague's two prior “strikes,” 6 IV VRP at 309, and sentenced McKague to life imprisonment without the possibility of parole. During the sentencing hearing, McKague never asked that a jury be impaneled to determine the existence of his prior convictions nor did he challenge the trial judge's role as fact-finder for these prior convictions. And he did not dispute the existence of his prior convictions or the standard of proof that the trial court applied. See IV VRP at 306–13.

¶ 9 McKague appeals.

I. Jury Trial Waiver

¶ 10 McKague first argues that the trial court erred in refusing to accept his jury trial waiver. This argument fails.

¶ 11 A defendant has no constitutional right to a nonjury trial. State v. Thompson, 88 Wash.2d 13, 15, 558 P.2d 202 (1977) (citing Singer v. United States, 380 U.S. 24, 36, 85 S.Ct. 783, 13 L.Ed.2d 630 (1965)). A defendant may waive his right to a jury trial only with the trial court's consent. CrR 6.1(a); RCW 10.01.060. The trial court has discretion to refuse a jury waiver even where both parties concur in the request for a nonjury trial. See Newsome v. Shields, 10 Wash.App. 505, 507–08, 518 P.2d 741 (1974). We review a trial court's denial of a jury trial waiver for abuse of discretion to ensure that the trial court did not merely deny the request by rote but that it exercised discretion with an eye to ensuring a fair trial. Singer, 380 U.S. at 34, 85 S.Ct. 783. An abuse of discretion occurs when the trial court's decision is “manifestly unreasonable, or exercised on untenable grounds, or for untenable reasons.” State ex rel. Carroll v. Junker, 79 Wash.2d 12, 26, 482 P.2d 775 (1971) (citation omitted). We find no abuse of discretion here.

[159 Wash.App. 501] ¶ 12 The trial court articulated several tenable reasons for rejecting McKague's jury waiver: the seriousness of the crime, defense counsel's jury trial expertise, and the appearance of fairness in having McKague's culpability for such a serious charge determined by more than one person. We hold, therefore, that the trial court properly exercised its discretion when it denied McKague's request to waive his jury trial rights and to be tried by the court.

II. Sufficiency of the Evidence: “Substantial Bodily Harm”

¶ 13 McKague next contends that the State failed to prove each element of second degree assault beyond a reasonable doubt. McKague concedes the State's evidence proves that he assaulted Chang, but he maintains that the evidence does not establish that Chang suffered substantial bodily harm as a result. We disagree.

¶ 14 In considering a challenge to the sufficiency of the evidence, we view the evidence in the light most favorable to the State and ask whether any rational trier of fact could have found guilt beyond a reasonable doubt. State v. Salinas, 119 Wash.2d 192, 201, 829 P.2d 1068 (1992) (citing State v. Green, 94 Wash.2d 216, 220–22, 616 P.2d 628 (1980)). A claim that the evidence was insufficient admits the truth of the State's evidence and all reasonable inferences drawn from that evidence. Salinas, 119 Wash.2d at 201, 829 P.2d 1068.

¶ 15 A conviction for second degree assault requires the State to prove beyond a reasonable doubt that a defendant intentionally assaulted another and thereby recklessly inflicted substantial bodily harm. RCW 9A.36.021(1)(a). RCW 9A.04.110(4)(b) defines “substantial bodily harm” as:

bodily injury which involves [1] a temporary but substantial disfigurement, or [2] which causes temporary but substantial loss or impairment of the function of any bodily part or organ, or [3] which causes a fracture of any bodily part.

McKague argues that the State failed to prove beyond a reasonable doubt any of these three possibilities of substantial bodily harm.

[159 Wash.App. 502] ¶ 16 Specifically, McKague contends that: (1) Chang's scalp contusion and “strained shoulder” did not rise to the level of “temporary but substantial disfigurement,” Br. of Appellant at 7–8; (2) Chang's “concussion without loss of consciousness” did not cause “any lack of function or impairment,” Br. of Appellant at 8; and (3)...

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