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COURT OF APPEAL

DIVIS10t# IT

2613 SEP - 4 AM 10: 20

IN THE COURT OF APPEALS OF THE STATF3- W WNTON

DIVISION II 1jY_ P Y

STATE OF WASHINGTON, I No. 42838 -5 -II

Respondent,

V.

KODY CHIPMAN, UNPUBLISHED OPINION

PENOYAR J. — Kody Chipman . appeals his jury convictions for vehicular assault and hit

and run. He also appeals his exceptional sentence for one vehicular assault count. He argues

that (1) the information failed to provide notice of vehicular assault's proximate -cause element,

2) the trial court erred by refusing to instruct the jury on self defense, (3) the trial court erred by

refusing to allow expert evidence on Chipman's generalized anxiety disorder, and (4) the .

exceptional sentence was wrongly based on an injury the legislature contemplated in setting out

the elements for vehicular assault.

We hold that the information's language gave Chipman sufficient notice of the

proximate -cause element. Because there was insufficient evidence of Chipman's good faith

belief that he was about to be harmed, the trial court properly refused to give the self - defense

instruction. The trial court was within its authority to impose an exceptional sentence based on

the jury's finding regarding the victim'sinjuries.' We affirm.

1 We do not address whether the trial court should have allowed expert testimony because it was

relevant only to Chipman'sself - defense theory.
42838 -5 -II

FACTS

I. BACKGROUND

Around 6:00 P.M. on March 31, 2011, Chipman drove his car onto a private drive that led

to an old fire station where a Boy Scout event was being held. Driving quickly into the station's

parking lot, Chipman braked hard, stopping several feet from Dan Kitchings, the father of one of

the scouts. Concerned, Kitchings and his father -in -law, Dee Cooper, knocked on Chipman's

driver's -side window and asked Chipman to roll down the window so they could speak with

him.

Because Chipman rolled down the car window only slightly, Kitchings and Cooper were

unable to hear him well over the car's loud engine, so they asked him to open his car door.

Chipman opened the door about a foot, and then Cooper opened the door farther. Kitchings and

Cooper put themselves between the open car door and the car and asked Chipman to turn his car

off, but he did not.

While Kitchings and Cooper were attempting to communicate with Chipman, some other

unidentified person said, "Call the police." Report of Proceedings (RP) (Oct. 10, 2011) at 87.

Immediately after, and with the door still open, Chipman abruptly drove the car backwards,

knocking Kitchings and Cooper to the ground, and sped away. Shortly after, Chipman was

located and arrested.

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Kitchings and Cooper thought Chipman might have been impaired, based on his alleged strange

behavior — apparently laughing after coming to a stop right in front of Kitchings, fidgeting back

and forth, staring down and failing to make eye contact. Their concern was only heightened by

comments they claimed to have heard Chipman make: Kitchings heard him say that he was late

for a Narcotics Anonymous meeting; and Cooper heard him say he had just exited the I -5

freeway, which was about four miles from the fire station. At trial, however, a certified drug

recognition expert (who was also a City of Olympia police officer) testified that she had

examined Chipman on March 31 shortly after the incident and had concluded that Chipman was

not under the influence of any intoxicants at that time.

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As a result of the incident, Kitchings suffered a cranial fracture and brain hemorrhage,

which required three brain surgeries. Cooper suffered two pelvic fractures, a scalp contusion, a

laceration on the back of the head, and several broken teeth.

II. PROCEDURE

The State charged Chipman with two counts of vehicular assault and one count of hit and

run. The State alleged an aggravating factor for one of the two counts of vehicular assault:

Kitchings'] injuries substantially exceed[ed] the level of bodily harm necessary to satisfy the

elements of the offense." Clerk's Papers (CP) at 11.

In a pretrial omnibus order, Chipman declared his intent to assert self defense at trial. At

a pretrial hearing, the trial court withheld ruling on this issue, stating, "We'll see how the facts

develop at trial." RP (Oct. 3, 2011) at 89. For the time being, the court prohibited Chipman from

using the .words "self- defense" and "lawful use of force" during voir dire and opening

statements. RP (Oct. 3, 2011) at 91.

In conjunction with his self - defense theory, Chipman wanted to present expert testimony

through a psychologist of his generalized anxiety disorder and how this disorder affected his

actions during the incident. Before the trial, however, the trial court ruled that it would not

permit "the use of expert testimony to explain the defendant'ssubjective fear that he was in

danger at the time that this incident occurred." RP (Oct. 3, 2011) at 95. The psychologist did

not testify at trial. And when the defense did not call Chipman to the stand, the trial court ruled

that, absent his testimony, it was not going to instruct the jury on self defense.

The jury found Chipman guilty of all counts. The jury also found by special verdict that

Kitchings' [s] injuries substantially exceed[ed] the level of bodily harm necessary to constitute

substantial bodily harm." RP (Oct. 17, 2011) at 660. The trial court relied on this additional

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finding in imposing an exceptional sentence of 40 months for the vehicular assault of Kitchings.

Chipman timely appeals his convictions and exceptional sentence.

ANALYSIS

I. SUFFICIENCY OF INFORMATION

Chipman argues for the first time on appeal that "[t]he Information was deficient because

it failed to properly allege a causal relationship between Mr. Chipman'ssubpar driving and the

harm inflicted on Cooper and Kitchings." Appellant's

Br. at 10. We disagree because (1) the

causal connection between the driving and the harm is clear from the information'slanguage and

2) the information gave Chipman sufficient notice ofthe charges against him.

Under both the federal and state constitutions, a person accused of a crime has the right to

notice of the nature and cause of the accusation. U.S. CONST. amend. VI; WASH. CONST. art. I, §

22. To give proper notice to the accused person, all essential elements of a crime — including

non - statutory elements —must be included in the charging document. State v. Johnson, 119

Wn.2d 143, 147, 829 P.2d 1078 (1992) (quoting State v. Kjorsvik, 117 Wn.2d 93, 97, 812 P.2d

86 (1991)).

Although Chipman raises this argument for the first time on appeal, a challenge to an

information'ssufficiency involves a constitutional right to notice, the first RAP 2. a)(5( 3)

preservation exception. See State v. Leach, 113 Wn.2d 679, 691, 782 P.2d 552 (1989). When a

defendant first challenges an information'ssufficiency on appeal, we liberally construe the

document in favor of its validity. Kjorsvik, 117 Wn.2d at 105. Our standard of review

comprises an essential - elements prong and an actual - prejudice prong. Kjorsvik, 117 Wn.2d at

105. Under the essential - elements prong, we look to the information itself for some language

that gives the defendant notice of the allegedly missing element of the charged offense.

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Kjorsvik, 117 Wn.2d at 106. If that language is vague or inartful, then we determine under the

actual - prejudice prong whether such language prevented the defendant from receiving actual

notice of the charged offense, including the allegedly missing element. Kjorsvik, 117 Wn.2d at

106.

In the information charging Chipman with two counts of vehicular assault, the State

alleged that Chipman "did operate or drive a vehicle in a reckless manner and /or with disregard

for the safety of others; and caused substantial bodily harm to [Cooper and Kitchings]." CP at

11. This language tracks the language of RCW 46. 522(61. 1), which states:

A person is guilty of vehicular assault if he or she operates or drives any vehicle:

a) In a reckless manner and causes substantial bodily harm to another; or...

c) With disregard for the safety of others and causes substantial bodily harm to

another.

Chipman posits that an additional, non - statutory element of vehicular assault is that the

defendant'sreckless driving proximately caused the substantial bodily harm. We agree. See

State v. Sanchez, 62 Wn. App. 329, 331, 814 P.2d 675 (1991) (holding that this element of

proximate cause is an essential element of vehicular homicide and.therefore must be included in

the charging document); State v. Roggenkamp, 115 Wn. App. 927, 935, 64 P.3d 92 (2003)

noting that case law construing the alternative means of committing vehicular homicide is

equally applicable to vehicular assault because the alternative means of committing either crime

are the same).

The information charges Chipman with vehicular assault and states that Chipman

caused" the injuries. The "missing" proximate -cause element is not missing at all and is readily

apparent from any reasonable, common sense construction of the charging document.

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II. REFUSAL TO INSTRUCT JURY ON SELF DEFENSE

Chipman argues that the trial court infringed his constitutional right to a fair trial by

refusing to instruct the jury on self defense. Because the evidence admitted did not support a

self - defense instruction, Chipman has no constitutional claim; accordingly, the trial court did not

violate Chipman's due process right to a fair trial.

Sufficient jury instructions allow the parties to argue their theories of the case and

properly inform the jury of the applicable law. State v. Riley, 137 Wn.2d 904, 909, 976 P.2d 624

1999) (quoting State v. Bowerman, 115 Wn.2d 794, 809, 802 P.2d 116 (1990)). Each party may

have the jury instructed on its theory ofthe case as long as evidence exists to support that theory.

State v. Williams, 132 Wn.2d 248, 259, 937 P.2d 1052 (1997). Failure to instruct on a defense

theory that the evidence supports constitutes reversible error. Williams, 132 Wn.2d at 260.

A trial court provides self - defense instructions to the jury after the defendant produces

some evidence tending to prove that, given the circumstances, the defendant'sactions amounted

to self defense. State v. Walker, 136 Wn.2d 767, 772, 966 P.2d 883 (1998). A trial court may

refuse to give a self - defense instruction only where no credible evidence supports the claim.

State v. McCullum, 98 Wn.2d 484, 488, 656 P.2d 1064 (1983). When deciding this issue, the

trial court reviews the entire record in the light most favorable to the defendant. State v.

Callahan, 87 Wn. App. 925, 933, 943 P.2d 676 (1997).

RCW 9A. 02016.sets the general rule for the lawful use of force in self defense:

The use, attempt, or offer to use force upon or toward the person of

another is not unlawful in the following cases:

3) Whenever used by a party about to be injured ... in preventing or attempting

to prevent an offense against his or her person ... in case the force is not more

than is necessary.
42838 -5 -II

To establish self - defense, a defendant must produce evidence showing that he or she had a

good faith belief in the necessity of force and that that belief was objectively reasonable."' State

v. Graves, 97 Wn. App. 55, 62, 982 P.2d 627 (1999) (quoting State v. Dyson, 90 Wn. App. 433,

438 -39, 952 P.2d 1097 (1997)). " Evidence of self - defense is viewed `from the standpoint of a

reasonably prudent person, knowing all the defendant knows and seeing all the defendant sees. "'

Graves, 97 Wn. App. at 62 (quoting State v. Janes, 121 Wn.2d 220, 238, 850 P.2d 495 (1993)).

Viewed in its best light for the defense, the evidence regarding any threat of injury that

Chipman may have felt he was facing was this: Kitchings and Cooper confronted him verbally,

putting themselves between him and the open car door. They asked Chipman to turn his car off,

but he did not. An unidentified person said, "Call the police." RP (Oct. 10, 2011) at 87.

The evidence suggesting Chipman reacted to the confrontation because he believed

Kitchings and Cooper were about to injure him was also not extensive. After a state trooper

suggested to Chipman that he may have driven out of the parking lot like he did because he was

scared, Chipman echoed the suggestion, responding that "[t]hose guys [Kitchings and Cooper]

scared me. They were up in my face." RP (Oct. 13, 2011) at 491. And answering a detective's

question why Chipman had not called law enforcement or aid, Chipman told the detective that he

was "weirded out," a term that Chipman was unable to explain to the detective'ssatisfaction. RP

Oct. 12, 2011) at 367.

Viewed in a light most favorable to Chipman, this evidence does not even remotely

suggest that Chipman feared imminent injury from Kitchings and Cooper or that any such fear

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would have been objectively reasonable. A confrontation that is entirely verbal and contains no

actual or implied threats of harm does not support a self - defense instruction.

Chipman alleges that the trial court applied the wrong legal standard by not allowing him

to raise self defense unless he testified. This allegation misconstrues the court'sreasoning. The

trial court did not require Chipman to testify in order to give the self - defense instruction; rather,

as we address above, the trial court could not find that there was enough evidence to entitle

Chipman to the instruction unless Chipman offered that evidence in his own testimony.

Chipman correctly argues that the absence of self defense was another element the State

was required to prove. See Appellant'sBr. at 14 (citing State v. Woods, 138 Wn. App. 191, 198,

156 P.3d 309 (2007)). But because self defense was not sufficiently raised here, there was no

lack -of- self - defense element for the State to prove and no due process violation.

III. GENERALIZED ANXIETY DISORDER

Expert testimony regarding Chipman's generalized anxiety disorder is relevant only with

respect to Chipman'sself - defense theory. Because the trial court properly refused to instruct the

jury on self defense, we need not address whether the trial court erred by excluding this expert

testimony. As we have said, to assert self defense, Chipman needed to establish not only that he

subjectively feared harm, but also that that his fear was objectively reasonable. He did not

establish the latter.

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Because we conclude that Chipman'sbelief that Kitchings and Cooper were about to injure him

was objectively unreasonable even when viewed from Chipman'sperspective, we do not need to

address whether Chipman's actions were also unreasonable.

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IV. EXCEPTIONAL SENTENCE

Chipman argues that the trial court erred by imposing an exceptional sentence based on

the degree of injury Kitchings suffered because the legislature already factored in such lifethreatening injuries in setting the standard sentencing range for vehicular assault. The State

counters that, in making his argument, Chipman wrongly relies on cases turning on statutes that

the legislature has since amended. We agree with the State.

In State v. Pappas, our Supreme Court held that an injury substantially exceeding the

level of bodily harm necessary to satisfy the elements of vehicular assault can be an aggravating

factor justifying an exceptional sentence. 176 Wn.2d 188, 197, 289 P.3d 634 (2012). Here,

substantial evidence supported the jury's finding that Kitchings' injuries substantially exceeded

the level required for vehicular assault, and the trial court based the exceptional sentence on this

finding. We see no error.

Under RCW 46. 522, 61.an element of vehicular assault is that the victim suffer

substantial bodily harm," which has the same meaning as in RCW 9A. 110. 04Three levels of

injury are defined in RCW 9A. 110(04. 4):

a) "Bodily injury," " physical injury," or "bodily harm" means physical pain or

injury, illness, or an impairment of physical condition;

b) "Substantial bodily harm" means bodily injury which 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, or which causes a fracture

of any bodily part;

c) "Great bodily harm" means bodily injury which creates a probability of death,

or which causes significant serious permanent disfigurement, or which causes a

significant permanent loss or impairment of the function of any bodily part or

organ.

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Referring to these categories of injuries, the court in Pappas concluded:

A trial court can impose an exceptional sentence under RCW

9. 535( y) 94A. 3)(when the jury finds that the " victim's injuries substantially

exceed the level of bodily harm necessary to satisfy the elements of the offense,"

and the court is satisfied that this is a "`substantial and compelling reason "' to

justify an exceptional sentence.

176 Wn.2d at 192 (quoting State v. Stubbs, 170 Wn.2d 117, 124, 240 P.3d 143 (2010) (quoting

RCW 9. 535)). 94A. Here, the jury by special verdict found that "Kitchings'[] injuries

substantially exceed the level of bodily harm necessary to constitute substantial bodily harm."

RP (Oct. 17, 2011) at 660. This finding was amply supported by the testimony of Dr. Yoshihiro

Yamamoto, who had attended to Kitchings' injuries; at trial, Yamamoto remarked that patients

with injuries like those Kitchings suffered generally have poor outcomes —for every three

patients, one dies; one ends up in a vegetative state; and one survives, but with disabilities. The

defense did not contest any aspect of Yamamoto'stestimony.

Citing the aggravating factor the jury found, the trial court imposed an exceptional

sentence of 40 months for the vehicular assault of Kitchings. The court arrived at this sentence

by doubling the standard range of 20 months for vehicular assault, acknowledging not only that

Kitchings and his family would suffer physical and financial consequences for a long time, but

also that Chipman'ssentence should not be longer than the sentence for vehicular homicide that

Chipman would have received if Kitchings had died as a result of the incident. We perceive no

error in the exceptional sentence.

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ENO=

A majority of the panel having determined that this opinion will not be printed in the

Washington Appellate Reports, but will be filed for public record in accordance with RCW

2. 040, 06.it is so ordered.

We concur:

Hunt, P.J.

e

1 '/ "

Bj, gen, J.

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