IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

DIVISION ONE

STATE OF WASHINGTON,

Respondent,

v.

BRENNARIS MARQUIS JOHNSON,

Appellant.

No. 83738-9-I 

ORDER DENYING MOTION 

FOR RECONSIDERATION,

WITHDRAWING OPINION, 

AND SUBSTITUTING

OPINION

Appellant Brennaris Johnson has moved for reconsideration of the 

published opinion filed on October 16, 2023. The respondent State of 

Washington has filed an answer. The panel has considered the motion pursuant 

to RAP 12.4 and has determined that the motion should be denied, the opinion 

should be withdrawn, and a substitute opinion be filed. 

Now, therefore, it is hereby 

ORDERED that the appellant’s motion for reconsideration is denied; and it 

is further

ORDERED that the published opinion filed on October 16, 2023, is 

withdrawn; and it is further 

ORDERED that a substitute published opinion be filed.
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON,

Respondent,

v.

BRENNARIS MARQUIS JOHNSON,

Appellant.

No. 83738-9-I

DIVISION ONE

PUBLISHED OPINION

SMITH, C.J. — Brennaris Marquis Johnson appeals a jury verdict finding 

him guilty of second degree assault and felony violation of a no-contact order. 

On appeal, Johnson contends that the trial court erred by (1) instructing the jury 

that fourth degree felony assault was a lesser degree offense to second degree 

assault, (2) admitting evidence of prior assaults against the victim in this case,

(3) imposing an exceptional sentence, (4) making an impermissible factual 

finding when it imposed an exceptional sentence, and (5) imposing a longer than 

statutorily permitted sentence on the no-contact order violation. Not finding his 

first four arguments persuasive, we affirm the convictions. However, we agree 

that Johnson’s sentence for the violation of the no-contact order is longer than 

statutorily permissible and remand for the court to correct the sentence.

FACTS

Brennaris Marquis Johnson and Nicole Trichler began dating in early 

2020. Following an incident in August 2020, Johnson was arrested and a 
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no-contact order protecting Trichler was entered. Despite the no-contact order, 

the parties stayed in contact. 

In late January 2021, while the no-contact order was still in place, Trichler 

picked Johnson up from jail and the two spent a handful of days at Trichler’s 

apartment. During this time, Johnson was “very argumentative” and accused 

Trichler of stealing his stimulus check1 and cheating on him. When Trichler 

denied stealing the check, Johnson responded by hitting her under the jaw. 

Trichler asked Johnson why he had hit her, but Johnson just walked away before 

then turning around and punching Trichler repeatedly on her head, like he would 

hit a punching bag. Trichler again asked Johnson why he had hit her. In 

response, Johnson again struck Trichler on her temple. He then told Trichler that 

he could “do this and nobody would ever see a bruise.” Trichler’s head started to 

hurt and she asked Johnson if she could take some aspirin. Trichler testified at 

trial that at this point in time, she was trying not to get upset because she didn’t 

want Johnson to accuse her of playing the victim. Trichler took four aspirin for 

the pain. 

About 15 minutes later, Trichler described hearing a buzzing noise and 

feeling an intense pressure in her head. Trichler told Johnson to call 911

because she felt like she was “going to die.”2 By the time emergency personnel 

responded, Trichler was “crawling around” on her hands and knees. One of the 

 

1 During the COVID-19 pandemic, the federal government issued 

“Economic Impact Payments,” commonly known as “stimulus checks” to eligible 

recipients as part of the pandemic relief.

2 Johnson had taken Trichler’s phones away from her at this point. 
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responding emergency medical technicians (EMTs) checked Trichler’s vital 

signs, concluded she was not in danger of serious injury, and advised her to visit 

a walk-in clinic. Trichler did not report any assault to the EMTs or tell them that 

she and Johnson had been arguing.

Once the EMTs departed, Trichler’s condition steadily deteriorated. She 

began to vomit and asked Johnson to call 911 again. When the EMTs returned, 

Johnson or Trichler3told them that Trichler had used methamphetamine and had 

been drinking rum that day. The EMTs changed their impression of the incident 

to one involving substance abuse, reasoning that Trichler’s headache was from 

her drug and alcohol use. The EMTs then drove Trichler to the hospital.

At the hospital, Trichler told staff she had used methamphetamine and 

immediately developed a severe headache. She denied any assault or trauma. 

A CT4 scan revealed Trichler had a subdural hematoma, a type of inner brain 

bleed. Trichler was transferred to the trauma and acute care surgery team for 

brain surgery to remove the hematoma. After the surgery, Trichler spent several 

days recovering in the hospital.

Trichler initially blamed the aspirin for her condition. But after talking with 

her mother, Trichler realized the severity of her injuries and decided to report the 

assault to police. Johnson was subsequently charged with second degree 

assault and felony violation of a no-contact order. 

 

3 Trichler testified that Johnson relayed this information to the EMTs but 

EMT Galen Wallace testified that Trichler told him herself.

4 Computerized tomography.
No. 83738-9-I/4

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Before trial, during motions in limine, the State moved to admit evidence of 

Johnson’s prior assaults against Trichler. The State argued that Trichler’s 

credibility would be a primary issue because of her delay in reporting and general 

denial of the assault. After hearing pretrial testimony from Trichler, the court 

granted the State’s motion, subject to a limiting instruction. The State also 

requested that the jury be instructed on fourth degree felony assault as a lesser 

degree offense of second degree assault. Johnson objected. The court noted 

that the jury could conclude Trichler’s injuries were caused by something other 

than the assault, such as a fall, and preliminarily granted the State’s request.

The jury found Johnson guilty as charged, and the trial court sentenced 

him to a total of 168 months of confinement and 30 months of community 

custody. Johnson appeals.

ANALYSIS

Lesser Degree Offense

Johnson contends that the court violated his due process rights by 

instructing the jury on fourth degree felony assault as a lesser degree offense of 

second degree assault, denying that it is a lesser degree offense. He maintains 

that even if fourth degree felony assault is a lesser degree offense, the evidence 

did not support such an instruction. He also argues that, although the jury did not 

convict him of fourth degree felony assault, he suffered substantial prejudice 

because the State introduced evidence to support that instruction. We conclude 

that the instruction was not given in error.
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Criminal defendants are generally entitled to notice of the charges they 

are to meet at trial and may be convicted only of the crimes charged in the 

information. State v. Tamalini, 134 Wn.2d 725, 731, 953 P.2d 450 (1998). But

when a defendant is charged with an offense consisting of different degrees, the 

jury may find the defendant guilty of a lesser degree5 of the charged offense. 

RCW 10.61.003. A trial court may instruct the jury on a lesser degree offense 

when 

“(1) the statutes for both the charged offense and the proposed 

[lesser] degree offense proscribe but one offense; (2) the 

information charges an offense that is divided into degrees, and the 

proposed offense is a [lesser] degree of the charged offense; and 

(3) there is evidence that the defendant committed only the [lesser]

offense.”

State v. Fernandez-Medina, 141 Wn.2d 448, 454, 6 P.3d 1150 (2000) (internal 

quotation marks omitted) (quoting State v. Peterson, 133 Wn.2d 885, 891, 948 

P.2d 381 (1997)).

“The standard of review applied to a trial court’s decision to give a jury 

instruction depends on whether that decision was based on an issue of law or 

fact.” State v. Loos, 14 Wn. App. 2d 748, 760, 473 P.3d 1229 (2020). The first 

two prongs of the Fernandez-Medina test are legal questions, which we review 

de novo. Loos, 14 Wn. App. 2d at 760. The third prong presents a question of 

 

5 A lesser degree offense is a close cousin of a lesser included offense. 

A lesser included offense instruction is warranted where (1) each of the elements 

of the lesser offense are a necessary element of the offense charged and (2) the 

evidence in the case supports an inference that the lesser crime was committed. 

State v. Workman, 90 Wn.2d 443, 447-48, 584 P.2d 382 (1978). The legal prong 

of the Workman test is not implicated in a lesser degree analysis. State v. 

Fernandez-Medina, 141 Wn.2d 448, 455, 6 P.3d 1150 (2000).
No. 83738-9-I/6

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fact that we review for an abuse of discretion. Loos, 14 Wn. App. 2d at 760. 

Only the first and third prongs are at issue here.6

1. Offense Proscribed

To determine whether criminal statutes “ ‘proscribe but one offense,’ ” 

Washington courts look to whether the statutes criminalize the same or different 

conduct. Tamalini, 134 Wn.2d at 732-33 (quoting State v. Foster, 91 Wn.2d 466, 

472, 589 P.2d 789 (1979)). For example, in Tamalini, our Supreme Court 

concluded that first and second degree manslaughter were not lesser degree 

offenses of second degree felony murder because “the manslaughter statutes 

and the felony murder statutes proscribe significantly different conduct and thus 

define separate and distinct crimes.” 134 Wn.2d at 732. The court examined the 

statutory elements of manslaughter and felony murder and reasoned that, 

although both statutes generally proscribe killing another human, they are 

“directed to significantly differing conduct of defendants.” Tamalini, 134 Wn.2d 

at 733. Similarly, in State v. McJimpson, this court concluded that second 

degree felony murder and second degree manslaughter were not the same 

offense because “they prohibit significantly different conduct with regard to such 

killing” and the statutes involve different mens rea requirements. 79 Wn. App. 

164, 171-72, 901 P.2d 354 (1995).

 

6

 Johnson does not appear to contest the second element of the 

Fernandez-Medina test, that the information charges an offense divided into 

degrees.
No. 83738-9-I/7

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Here, Johnson was charged under RCW 9A.36.021(1), which provides:

A person is guilty of assault in the second degree if he or she, 

under circumstances not amounting to assault in the first degree: 

(a) Intentionally assaults another and thereby recklessly inflicts 

substantial bodily harm. 

The jury instructions reflect this iteration of second degree assault.

Under RCW 9A.36.041(1), a person is guilty of fourth degree assault “if, under 

circumstances not amounting to assault in the first, second, or third degree, or 

custodial assault, he or she assaults another.” 

Fourth degree assault is a class C felony if the defendant, within the 

preceding decade, has been convicted of two or more of the following offenses, 

for which domestic violence against an intimate partner was proved: 

(i) Repetitive domestic violence offense as defined in 

RCW 9.94A.030; 

(ii) Crime of harassment as defined by RCW 9A.46.060;

(iii) Assault in the third degree;

(iv)Assault in the second degree;

(v) Assault in the first degree; or

(vi)A municipal, tribal, federal, or out-of-state offense 

comparable to any offense under (b)(i) through (v) of this 

subsection.

RCW 9A.36.041(3)(b). Similarly, the jury instructions reflect this type of fourth 

degree felony assault.

Assault is undefined in our criminal code, and courts apply the common 

law definition. State v. Walden, 67 Wn. App. 891, 894, 841 P.2d 81 (1992). 

Here, the jury was instructed that an “assault” is “an intentional touching or 

striking of another person that is harmful or offensive regardless of whether any 
No. 83738-9-I/8

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physical injury is done to the person. A touching or striking is offensive if the 

touching or striking would offend an ordinary person who is not unduly sensitive.”

Comparing the conduct covered by each criminal statute, it is apparent 

that RCW 9A.36.021(1)(a) and RCW 9A.36.041(1) and (3) proscribe the same 

conduct. Both statutes proscribe acting with intent to achieve the same result: 

causing harmful contact to another. That the two crimes require the same mens 

rea is particularly relevant, since case law has often distinguished offenses 

because they require different mens rea. See Loos, 14 Wn. App. 2d at 762-73

(holding fourth degree intentional assault is not a lesser degree offense to third 

degree assault of a child when the latter was based on criminal negligence). We 

conclude that fourth degree felony assault is a lesser degree offense to second 

degree assault.

Still, Johnson attempts to distinguish the two offenses by arguing fourth 

degree felony assault is not the same offense because it “requires proof of an 

additional fact not required for second degree assault,” that being proof of prior 

convictions. We disagree. Only in the context of lesser included offenses must 

the lesser offense contain all the elements of the greater offense. State v. 

Coryell, 197 Wn.2d 397, 411-12, 483 P.3d 98 (2021). Lesser degree offenses 

can have an element that is not an element of the greater offense. Coryell, 197 

Wn.2d at 411.

2. Evidence of Lesser Offense

The third Fernandez-Medina prong is satisfied “only if based on some 

evidence admitted, the jury could reject the greater charge and return a guilty 
No. 83738-9-I/9

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verdict on the lesser.” Coryell, 197 Wn.2d at 407. But it is not enough that the 

jury might simply disbelieve the State’s evidence; some evidence presented must 

affirmatively establish the defendant’s theory on the lesser degree offense. 

Fernandez-Medina, 141 Wn.2d at 456. When determining on appeal whether the 

evidence at trial was sufficient to support a lesser degree instruction, we “view[]

the ‘supporting evidence in the light most favorable to the party that requested 

the instruction.’ ” Coryell, 197 Wn.2d at 415 (quoting Fernandez-Medina, 141 

Wn.2d at 455-56). Specifically, “a requested jury instruction on a lesser included 

or inferior degree offense should be administered ‘if the evidence would permit a 

jury to rationally find a defendant guilty of the lesser offense and acquit him of the 

greater.’ ” Fernandez-Medina, 141 Wn.2d at 456 (quoting State v. Warden, 133 

Wn.2d 559, 563, 947 P.2d 708 (1997)).

Here, the evidence could have supported that Johnson assaulted Trichler 

but did not cause her substantial bodily harm. At trial, Detective Maiya Atkins 

testified that during a police interview, Johnson told the detective that he called 

911 because Trichler had “been falling all over the place.” Detective Atkins also 

relayed that Johnson mentioned Trichler had “been using methamphetamine and 

thought that might have been an issue [that caused her to fall]” and that Trichler’s 

“use of aspirin . . . might have been a reason why” Trichler had fallen. Dr. Eric 

Kinder also testified that he believed Trichler’s symptoms might have been 

caused by her methamphetamine use, which could have raised her blood 

pressure enough to trigger “a very rare kind of aneurysmal hemorrhage.” 

Dr. Amy Walker’s testimony further supported this view; she noted that Trichler 
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reported the headache’s onset as coming immediately after using 

methamphetamine. And an emergency medical services (EMS) responder, 

Galen Wallace, testified that he changed his impression of Trichler at the second 

EMS visit to substance use because Trichler admitted to “using 

methamphetamine and to drinking rum that day.” 

This evidence affirmatively supported an inference that Johnson assaulted 

Trichler. But the conflicting testimony about the origin of Trichler’s symptoms left 

it for the jury to determine whether it was Johnson’s assault or, instead, Trichler’s 

drug use, drinking rum, and falling that caused her subsequent brain injury. 

Viewing the evidence in the light most favorable to the State, the party requesting 

the lesser degree instruction, the evidence could have allowed the jury to reject 

the greater charge and return a verdict only on the lesser. 

We briefly note that Johnson misconstrues the “light most favorable” 

standard. He contends that viewing the evidence in the light most favorable to 

the State, the jury would conclude that Johnson assaulted Trichler and that this 

assault was the sole cause of Trichler’s injuries. In support of this conclusion, 

Johnson points to Trichler’s testimony that Johnson punched her, her testimony 

that she did not fall, and medical testimony that head trauma likely caused 

Trichler’s injuries. But because fourth degree felony assault does not require 

Johnson to have caused Trichler substantial injury, the proper inquiry is whether 

the evidence could support an inference that something other than Johnson 

caused Trichler’s injuries. In this case, it can. As already noted, there were 
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many possible causes of Trichler’s injuries that the jury could have believed as 

being the proximate cause of her injuries.

Johnson also contends that the court erred by granting the State’s request 

for the lesser degree offense before hearing any evidence. This is inaccurate. 

During motions in limine, the State requested that the jury be instructed on fourth 

degree felony assault as a lesser degree offense of second degree assault. The 

parties then discussed what evidence they intended to proffer and whether that

evidence could support the lesser degree offense. Johnson argued that the prior 

conviction evidence necessary to support the lesser degree offense violated 

ER 404(b) and that the court should first consider pretrial testimony from Trichler 

before making a ruling. The court then overruled the State’s motion, finding that 

probative value of the prior offense evidence did not outweigh its prejudicial 

effect. The court noted that it was open to reconsidering its ruling.

The next day, the court heard pretrial testimony from Trichler. The court 

then acknowledged that it had erred in overruling the State’s request for a lesser 

degree instruction because it had misunderstood the applicable law and asked 

both parties to reargue their positions. After the parties presented their positions, 

the court concluded that based on the facts presented, there was sufficient 

evidence for the lesser degree instruction and granted the State’s request. 

Later on, at the close of evidence, Johnson again objected to fourth 

degree felony assault as a lesser degree offense. The court overruled the 

objection and allowed the instruction.
No. 83738-9-I/12

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Contrary to Johnson’s contention, the court heard evidence before initially 

ruling on the jury instruction. The State also described the evidence it intended 

to offer to support the lesser degree instruction before the court made its ruling. 

The court then reconsidered its ruling at the close of trial and reaffirmed that the 

instruction was proper. The court properly determined on both occasions that an 

instruction on fourth degree felony assault was warranted. Such an instruction 

was not error.

3. Substantial Prejudice

Johnson maintains that the court’s instruction on fourth degree felony 

assault resulted in substantial prejudice because (1) the jury was instructed on 

an uncharged offense and (2) this instruction permitted admittance of prejudicial 

evidence. We disagree.

Generally, a defendant is entitled to notice of the charges they will face at 

trial and may be convicted of only charges contained in the information. 

Tamalini, 134 Wn.2d at 731. But RCW 10.61.003 provides sufficient notice to 

defendants that they may be convicted of any lesser offense to the charged 

crime. Foster, 91 Wn.2d at 472. Thus, there is no prejudice and a jury may 

properly find a defendant guilty of any lesser degree crime of the crimes included 

in the original information. Peterson, 133 Wn.2d at 893.

In this case, the jury was instructed on a lesser degree offense to second 

degree assault, so the fact that the lesser offense was not charged is a nonissue. 

Johnson’s argument that evidence related to the lesser degree offense was 

wrongly admitted is also unconvincing. That evidence—namely, that there were 
No. 83738-9-I/13

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two prior assaults—was subject to a limiting instruction: the jury was not 

permitted to consider evidence of Johnson’s prior convictions if it found him guilty 

of second degree assault. The jury found him guilty of second degree assault, 

and we presume the jury followed instructions and did not consider the prior 

convictions as evidence. State v. Mohamed, 186 Wn.2d 235, 244, 375 P.3d 

1068 (2016) (“We presume that a jury will follow the instructions provided to it.”).

ER 404(b)

Johnson asserts that evidence of prior assaults between him and Trichler 

was not relevant to Trichler’s credibility and that the court erred by admitting it. 

Because this evidence helped explain Trichler’s inconsistent statements and her 

conduct following the assault at issue here, we disagree. 

We review the trial court’s determination to admit or exclude evidence for 

an abuse of discretion. State v. Foxhoven, 161 Wn.2d 168, 174, 163 P.3d 786 

(2007). A trial court abuses its discretion if its decision is manifestly 

unreasonable, or is exercised on untenable grounds or for untenable reasons. In 

re Marriage of Littlefield, 133 Wn.2d 39, 46-47, 940 P.2d 1362 (1997). The 

appellant bears the burden of proving the court abused its discretion. State v. 

Wade, 138 Wn.2d 460, 464, 979 P.2d 850 (1999). 

ER 404(b) provides that “[e]vidence of other crimes, wrongs, or acts is not 

admissible to prove the character of a person in order to show action in 

conformity therewith.” But this evidence may be used for another purpose, such 

as proof of motive, plan, or identity. Foxhoven, 161 Wn.2d at 175. Evidence that 

a defendant previously assaulted a victim is generally inadmissible if the 
No. 83738-9-I/14

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defendant assaults the same victim on a later occasion. State v. Harris, 20 Wn. 

App. 2d 153, 157, 498 P.3d 1002 (2021), review denied, 199 Wn.2d 1016, 510 

P.3d 1001 (2022). However, such evidence may be admissible to “assist the jury 

in judging the credibility of a recanting victim.” State v. Magers, 164 Wn.2d 174, 

1886, 189 P.3d 126 (2008) (plurality opinion). And the victim’s credibility need 

not be an element of the charged offense. See, e.g., Harris, 20 Wn. App. 2d at

158 (evidence of prior assaults admissible to help jury determine recanting 

witness’s credibility in case involving violation of a no-contact order charge). To 

determine if ER 404(b) evidence is admissible, Washington courts use a four-part 

test:

“(1) find by a preponderance of the evidence that the misconduct 

occurred, (2) identify the purpose for which the evidence is sought 

to be introduced, (3) determine whether the evidence is relevant to 

prove an element of the crime charged, and (4) weigh the probative 

value against the prejudicial effect.”

State v. Gresham, 173 Wn.2d 405, 421, 269 P.3d 207 (2012) (quoting State v. 

Vy Thang, 145 Wn.2d 630, 642, 41 P.3d 1159 (2002)). “The party seeking to 

introduce the evidence has the burden of establishing the first, second, and third 

elements.” State v. Ashley, 186 Wn.2d 32, 39, 375 P.3d 673 (2016). “This 

analysis must be conducted on the record.” Foxhoven, 161 Wn.2d at 175. If the 

evidence is admitted, the court must give a limiting instruction to the jury. Ashley, 

186 Wn.2d at 39. A court’s decision to admit evidence of prior bad acts depends 

heavily on the facts of the case and the purpose for which the evidence is sought 

to be introduced. Ashley, 186 Wn.2d at 44. 
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In this case, the trial court conducted the appropriate four-step analysis on 

the record and gave a limiting instruction to the jury. However, neither party cites 

or addresses this four-part test on appeal. The State relies on an older, two-part 

test that concerns only relevance and prejudice, and Johnson argues generally 

that any evidence of past incidents of domestic violence is categorically 

impermissible, irrelevant, and unduly prejudicial. Johnson’s argument largely 

tracks the second, third, and fourth prongs of the four-part test. Because neither 

party challenges or addresses the first prong, we address only the other three.

1. Second Prong: Purpose for Introducing Evidence

The State sought to introduce evidence of past domestic violence 

incidents and how Trichler responded to those incidents to help the jury assess 

Trichler’s credibility. This clearly satisfies the second prong of the ER 404(b) 

inquiry, which only requires a party to identify a purpose for offering the evidence. 

See, e.g., Magers, 164 Wn.2d at 185-86 (prior acts of domestic violence 

admissible to support a witness’s credibility after their testimony changed).

2. Third Prong: Relevance

Evidence is relevant if it has “any tendency to make the existence of any 

fact that is of consequence to the determination of the action more probable or 

less probable that it would be without the evidence.” ER 401. Evidence of prior 

incidents of domestic violence is probative of a witness’s credibility in cases 

where a witness gives conflicting statements about the defendant’s conduct. 

State v. Gunderson, 181 Wn.2d 916, 923-25, 337 P.3d 1090 (2014); cf. Ashley, 
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186 Wn.2d at 47 (trial court improperly admitted prior assault evidence where 

victim’s trial testimony was consistent with prior statements to police).

Here, the trial court found that, “with regard to [Trichler’s] credibility and 

her allegation in this case,” evidence of prior domestic abuse was “relevant as to 

how she behaves in this relationship.” The State contends that evidence of prior 

assaults and Trichler’s response to those assaults were relevant to explain her 

inconsistent statements and conduct. We agree.

Johnson contends that the prior assaults are not relevant because they 

show only that “sometimes [Trichler] reports alleged assaults and sometimes she 

does not.” But Trichler’s inconsistent reporting is exactly what is relevant. As is 

reflected in this case, victims of domestic violence often minimize, deny, or lie 

about abuse in an effort to protect themselves and avoid repeated violence from 

their batterer. Anne L. Ganley, Domestic Violence: The What, Why, and Who, as 

Relevant to Criminal and Civil Court Domestic Violence Cases, in DOMESTIC 

VIOLENCE MANUAL FOR JUDGES ch. 2, at 41 (2016), https://www.courts.wa.gov/

content/manuals/domViol/chapter2.pdf [https://perma.cc/UA2L-STVU]. This is 

particularly true when domestic violence issues go public, such as in court 

proceedings, and batterers try to increase their coercive control over the abused 

party. Ganley, supra, ch. 2 at 41. And sometimes, the abused party’s 

minimization or denial is actually a survival mechanism: when asked by others if 

they were injured, they may honestly answer no because they have been so 

successful in blocking out the event. Ganley, supra, ch. 2, at 42. This is not to 

say that victims of domestic violence are less credible. We merely acknowledge 
No. 83738-9-I/17

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the tremendous emotional toll that a relationship plagued by domestic violence 

may have on a person.

These dynamics are present in this case. The State offered evidence of 

two prior assaults to demonstrate that Trichler had a pattern of inconsistently 

reporting past abuse and later recanting. After the first prior assault, Trichler 

decided not to report it to authorities, despite Johnson having strangled her until 

she was “out cold.” And after the second prior assault, Trichler reported the 

incident to police but “ran off” before they arrived. She later wrote a letter to the 

trial court recanting her earlier report of assault. 

Trichler’s conduct in this case mirrors her past conduct. After the present 

assault, Trichler denied repeatedly to emergency medical personnel and hospital 

staff that she had been assaulted or suffered any trauma. But at trial, Trichler 

testified repeatedly that Johnson had hit her. Trichler also waited several days to 

report the assault, and testified that she did not initiate the reporting—her mother 

called the police for her. Moreover, once Trichler was discharged from the 

hospital, she continued to communicate with Johnson and even went to his 

apartment. Trichler’s inconsistent statements before and at trial, along with her 

actions after the assault, undercut her credibility at trial. Contrary to Johnson’s 

assertion that evidence of past abuse “does nothing” to assist the jury, this 

evidence allows the jury to evaluate Trichler’s credibility in the context of a 

relationship marked by domestic violence.

Johnson also argues that our Supreme Court announced a domestic 

violence exception to ER 404(b) in Magers that was later rejected in Gunderson. 
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We disagree. Magers did not announce a “domestic violence exception” and 

Gunderson did not reject the Magers plurality holding. Rather, Gunderson

clarified the Magers plurality holding. The Gunderson court explained:

In State v. Magers, we took great care to specifically establish that 

“evidence that [the defendant] had been arrested for domestic 

violence and fighting and that a no-contact order had been entered 

following his arrest was relevant to enable the jury to assess the 

credibility of [the complaining witness] who gave conflicting 

statements about [the defendant’s] conduct.”

181 Wn.2d at 923-24 (alterations in original) (quoting Magers, 164 Wn.2d at 

186). The court noted that unlike in Magers, the victim in Gunderson did not give 

any conflicting statements—there was only evidence from other sources that 

contradicted the victim’s account. 181 Wn.2d at 924. The court then explained 

the effect of Gunderson on Magers: “Accordingly, we decline to extend Magers to 

cases where there is no evidence of injuries to the alleged victim and the witness 

neither recants nor contradicts prior statements.” Gunderson, 181 Wn.2d at 925. 

And in a footnote, the court clarified that it was not announcing a domestic 

violence exception and rejected Johnson’s assertion that Magers stood for such 

a proposition: “The blanket extension of Magers proposed by the dissent would 

create a domestic violence exception for prior bad acts that is untethered to the 

rules of evidence.” Gunderson, 181 Wn.2d at 925 n.3. In another footnote, the 

court clarified that its opinion “should not be read as confining the requisite 

overriding probative value exclusively to instances involving a recantation or an 

inconsistent account by a witness.” Gunderson, 181 Wn.2d at 925 n.4. 
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Here, there was evidence of injuries to Trichler and Trichler also 

contradicted her previous statements at trial. The rule set forth in Magers and 

Gunderson applies here; evidence of prior assaults was properly admitted for the 

jury to judge Trichler’s credibility in light of her inconsistent statements about the 

assault.

3. Fourth Prong: Probative Value versus Prejudicial Effect

Finally, Johnson argues that the probative value of the prior assault 

testimony is outweighed by its prejudicial effects. He also contends the jury 

relied on Trichler’s testimony as propensity evidence. 

This prong implicates ER 403. Ashley, 186 Wn.2d at 43. In domestic 

violence cases, “courts must be careful and methodical in weighing the probative 

value against the prejudicial effect of prior acts . . . because the risk of unfair 

prejudice is very high.” Gunderson, 181 Wn.2d at 925. “To guard against this 

heightened prejudicial effect, we confine the admissibility of prior acts of 

domestic violence to cases where the State has established their overriding 

probative value, such as to explain a witness’s otherwise inexplicable recantation 

or conflicting account of events.” Gunderson, 181 Wn.2d at 925. 

Here, the State succeeded in showing the overriding probative value of 

the evidence for credibility purposes because Trichler gave inconsistent 

statements about the abuse. She denied any abuse to various medical 

personnel but then later testified at trial that Johnson had assaulted her. 

Therefore, the court did not err in admitting the domestic violence evidence for 

credibility purposes. Cf. Gunderson, 181 Wn.2d at 925 (court erred in admitting 
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past domestic violence evidence where victim’s testimony before and at trial was 

consistent); Ashley, 186 Wn.2d at 47 (court erred in admitting domestic violence 

evidence where trial testimony was consistent with prior statements to police).

Johnson’s contention that the jury improperly relied on the evidence as 

propensity evidence is similarly unavailing. Johnson overlooks a limiting 

instruction that prohibited the jury from considering Trichler’s testimony for 

anything other than determining her credibility. Again, we presume juries follow 

instructions. Mohamed, 186 Wn.2d at 244.

Exceptional Sentence

Johnson contends that the court relied on an invalid factor in imposing an 

exceptional sentence and that it is unclear whether the court would have 

imposed the same sentence based on the remaining valid factors, requiring 

reversal. The State concedes that the court relied on an invalid factor, but 

asserts that the record makes clear that the court considered two other factors as 

independent bases for an exceptional sentence. We conclude the sentence is 

valid because, based on the court’s written findings, at least one other valid 

factor provided an independent basis for the exceptional sentence.

A trial court may impose an exceptional sentence outside the standard 

range if it concludes that “there are substantial and compelling reasons justifying 

an exceptional sentence.” RCW 9.94A.535. Whenever the court imposes an 

exceptional sentence, it must set forth the reasons for its decision in written 

findings of fact and conclusions of law. RCW 9.94A.535. However, “ ‘[o]ther 

than the fact of a prior conviction, any fact that increases the penalty for a crime 
No. 83738-9-I/21

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beyond the prescribed statutory maximum must be submitted to a jury, and 

proved beyond a reasonable doubt.’ ” Blakely v. Washington, 542 U.S. 296, 301, 

124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004) (quoting Apprendi v. New Jersey, 530 

U.S. 466, 490, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000)). The statutory 

maximum is “the maximum sentence a judge may impose solely on the basis of 

the facts reflected in the jury verdict or admitted by the defendant.” Blakely, 542 

U.S. at 303 (emphasis omitted). Thus, any exceptional sentence that exceeds 

the statutory maximum is subject to the two Blakely requirements.

On appeal, an exceptional sentence may be upheld “even where all but 

one of the trial court’s reasons for the sentence have been overturned.” State v. 

Gaines, 122 Wn.2d 502, 512, 859 P.2d 36 (1993). Remand is necessary “where 

it is not clear whether the trial court would have imposed an exceptional sentence 

on the basis of only the one factor upheld.” Gaines, 122 Wn.2d at 512; see also

State v. Parker, 132 Wn.2d 182, 189, 937 P.2d 575 (1997).

Here, the court imposed an exceptional sentence based on three factors: 

(1) that Johnson reoffended shortly after being released from incarceration (the 

“rapid recidivism” aggravator); (2) that Johnson’s prior unscored criminal history 

resulted in a sentence that was clearly too lenient; and (3) that Johnson had 

committed multiple current offenses and his high offender score resulted in some 

of the current offenses going unpunished.

7

 RCW 9.94A.535(3)(t), (2)(b), (c). Of

 

7 Though the State argues that the court did not conclude the sentence 

was “too lenient,” the court’s written conclusions of law say otherwise: “This court 

has discretion under RCW 9.94A.535(2)(b) & (c) to impose a sentence outside 

the standard range where the prior unscored criminal history results in a 

sentence that is clearly too lenient.” (Emphasis added.)
No. 83738-9-I/22

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the three factors, the first and the second require either a jury finding or a 

stipulation from the defendant. See RCW 9.94A.535(3)(t) (rapid recidivism factor 

must be considered by jury); State v. Saltz, 137 Wn. App. 576, 583-84, 154 P.3d 

282 (2007) (RCW 9.94A.535(2)(b) subject to Blakely requirements); cf. State v. 

Newlun, 142 Wn. App. 730, 742-43, 176 P.3d 529 (2008) (RCW 9.94A.535(2)(c) 

does not require courts to look beyond facts reflected in jury verdict or admitted 

by defendant).

Johnson asserts, and the State concedes, that the second factor—

whether unscored crimes rendered the sentence “too lenient”—is invalid because 

the jury did not consider it and Johnson did not stipulate to facts supporting it.8 

Thus, the crux of the matter is whether, absent the invalid factor, the court clearly 

intended to impose an exceptional sentence. The record indicates that it would 

have. The court’s conclusions of law for an exceptional sentence list the first 

factor separately from the other two:

1. The court has discretion under RCW 9.94A.535 to impose a 

sentence outside the standard range because the aggravating 

circumstance under RCW 9.94A.535(3)(t) has been pled and 

proved.

 

8 Johnson also contends that the court did not make a finding that the 

presumptive sentence would be too lenient. Rather, he claims the court 

impermissibly invented a new aggravating factor based on the following finding: 

There are three prior unscored misdemeanor domestic violence 

court order violation convictions from 2011. These convictions are 

similar in character to the conduct alleged in count two, but do not 

alter the standard range for either count. 

Though the court did not use the words “too lenient” in this finding, it did use 

those words in its corresponding conclusion of law. And contrary to Johnson’s 

assertion, it appears the court was describing the “too lenient” factor, not creating 

a new factor.
No. 83738-9-I/23

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2. The court has discretion under RCW 9.94A.535(2)(b)&(c) to 

impose a sentence outside the standard range where the prior 

unscored criminal history results in a sentence that is clearly too 

lenient and where the defendant has committed multiple current 

offenses and the high offender score results in some offenses 

going unpunished.

(Emphasis added.) The second conclusion of law does, admittedly, blur the lines 

between the second and third factors. But even absent these factors, the court’s 

first conclusion of law, determining that RCW 9.94A.535(3)(t) provides an 

independent basis to impose an exceptional sentence, and its division into a 

separate conclusion supports that the trial court would have relied on it alone. 

The court’s oral ruling at sentencing also supports this outcome. The 

court delineated factors one and three as bases for an exceptional sentence:

The State has requested for an exceptional upward [sentence] 

based on, A, rapid recidivism, and B, the three crimes argument 

that the offender score is so high that the maximum doesn’t go up 

that high, and that he would be allowed basically to get away with a 

crime without some sort of punishment. Having taken all of this into 

consideration, I do find that there is grounds for an exceptional 

upward sentence.

(Emphasis added.) We affirm the imposition of an exceptional sentence.9

Constitutionality of Exceptional Sentences

Johnson argues that the imposition of any exceptional sentence under the 

SRA (Sentencing Reform Act of 1981, ch. 9.94A RCW) violates the Sixth and 

Fourteenth Amendments to the United States Constitution because it requires 

the court to make a factual determination that facts found by the jury are 

 

9 Johnson also contends that the State failed to provide him notice of the 

“too lenient” aggravating factor. But as the court’s oral ruling makes clear, the 

State did not ask for this aggravating factor to be imposed—the court did it sua 

sponte.
No. 83738-9-I/24

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substantial and compelling reasons justifying an exceptional sentence. We 

disagree. This court previously addressed this same issue in State v. Sage, 1 

Wn. App. 2d 685, 407 P.3d 359 (2017), and determined that this secondary 

inquiry is a legal one, not a factual one. 

The Sixth Amendment provides criminal defendants with a right to a jury 

trial. This right, in conjunction with the due process clause of the Fourteenth 

Amendment, requires that each element of a crime be proved to a jury beyond a 

reasonable doubt. Alleyne v. United States, 570 U.S. 99, 104, 133 S. Ct. 2151, 

186 L. Ed. 2d 314 (2013) (plurality opinion). As previously noted, “any fact that 

‘expose[s] the defendant to a greater punishment than that authorized by the 

jury’s guilty verdict’ is an ‘element’ that must be submitted to the jury.” Hurst v. 

Florida, 577 U.S. 92, 97, 136 S. Ct. 616, 193 L. Ed. 2d 504 (2016) (alteration in 

original) (quoting Apprendi, 530 U.S. at 494).

The imposition of an exceptional sentence under the SRA is a two-step 

process prescribed by statute. First, the jury must find “unanimously and beyond 

a reasonable doubt, one or more of the facts alleged by the state in support of an 

aggravated sentence” exist. RCW 9.94A.537(6). Then, the court may impose an 

exceptional sentence “if it finds, considering the purposes of this chapter, that the 

facts found [by the jury] are substantial and compelling reasons justifying an 

exceptional sentence.” RCW 9.94A.537(6) (emphasis added). 

This court previously addressed the constitutionality of the SRA’s 

exceptional sentencing scheme in the context of the Sixth and Fourteenth 
No. 83738-9-I/25

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Amendments and concluded that it met due process requirements. Sage, 1 Wn. 

App. 2d at 710.

Like Johnson, the defendant in Sage argued that the trial court engaged in 

prohibited fact-finding, in violation of his Sixth Amendment right to a jury trial, by 

concluding an exceptional sentence was warranted. This court disagreed, 

concluding that, despite the statute’s imprecise word choice, 

[t]he only permissible “finding of fact” by a sentencing judge on 

an exceptional sentence is to confirm that the jury has entered by 

special verdict its finding that an aggravating circumstance has 

been prove[d] beyond a reasonable doubt. Then it is up to the 

judge to make the legal, not factual, determination whether those 

aggravating circumstances are sufficiently substantial and 

compelling to warrant an exceptional sentence.

1 Wn. App. 2d at 709 (emphasis added) (footnote omitted).

Johnson’s argument that the SRA is akin to the Florida sentencing 

scheme deemed unconstitutional by the Supreme Court in Hurst is also rejected 

in Sage:

But the Florida statute at issue expressly state[d] that the jury 

findings were “advisory.” [Former] FLA. STAT. § 921.141 (2010). By 

contrast, under Washington procedure here, the jury exclusively 

resolves the factual question whether the aggravating 

circumstances have been prove[d] beyond a reasonable doubt.

1 Wn. App. 2d at 710 n.86. 

We reject Johnson’s constitutional argument and conclude that the court 

did not engage in impermissible fact finding by determining the jury’s findings 

supported an exceptional sentence. 
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No-Contact Order Sentence

Johnson argues the court erred by sentencing him to more time than 

statutorily permitted on the no-contact order violation. The State concedes that 

the court erred. We agree that the court erred and remand for the court to 

correct the sentence.

RCW 9.94A.505(5) provides that, except in limited circumstances, the 

court may not impose a sentence that exceeds the statutory maximum for a 

given crime. Here, the statutory maximum on Johnson’s no-contact order 

violation was 60 months. RCW 7.105.450(5) (no-contact order violation is a 

class C felony); RCW 9A.20.021(1)(c) (statutory maximum for class C felony is 5

years). Despite this, the court sentenced Johnson to 60 months of confinement 

and 12 months of community custody. This sentence clearly exceeds the 

statutory maximum and remand is warranted.

We affirm Johnson’s convictions but remand for the court to resentence

Johnson on the no-contact order violation conviction.

WE CONCUR: