### FILED SEPTEMBER 1,2015 In the Office ofthe Clerk ofCourt W A State CourtofAppeals, Division III INTHE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISIONTHREE
I STATE OF WASHINGTON, ) ) No. 32088-0-111 

# j Respondent, ) I i ) 

### 1 v. ) 

# I CORYE. MESECHER, ) UNPUBLISHED OPINION 

# 1 ) ) Appellant. ) SIDDOWAY, C.J.

- Cory Mesecher appeals his conviction and sentence for trafficking in stolen property, alleging several instances ofinstructional error and insufficient evidence. Hedemonstrates, and the State concedes, that ajury finding that hecommitted a major economic offense supporting an increased sentence was potentially based on a factor thatthe Statehad excluded from its information or on factors that were not supported by substantial evidence. We find no othererror, however. We vacate the fmding ofan aggravating circumstance and otherwise affrrm. FACTS AND PROCEDURAL BACKGROUND Cory Mesecher and his two brothers were charged withtakingpower wire belonging toAvistaUtilities from an abandonedhouse in Stevens County. A project coordinator for Avistatestified that 3,300 feet ofwirewasremoved from thehouse. HeNo. 32088-0-111 State v. Mesecher
estimatedthe value ofthe wire itselfto bejustunder $2,500, butthat the cost to repair the house wouldbe more than $20,000. At

### Mr. Mesecher'sI trial, the State presented evidencethat one ormore ofthe brothers took wire from the house on several occasions, strippedthe wire, separated it, and sold it to a salvageyard in Chewelah. An operator atthe wrecking yard testified that she received almost 250 pounds ofwire materials from Mr. Mesecher and his brothers

overthe span ofabout a week. Herrecords reflected that she made two purchases from 

### Mr. Mesecherthat amounted to about 20 percent ofhertotal purchases from the brothers. 

### Mr. Mesecher was charged as a principal and an accomplice with one count of first degree theft and one count offirst degree trafficking in stolen property. The informationprovided notice ofthe State's intent to seek an aggravated sentence above the standardrange for the offenses based ontwo, but only two, ofthe four factors that can supportthe "major economic offense" aggravating circumstance, stating: [S]pecifically alleging, the current offense was a major economic offense or series ofoffenses, so identified by a consideration ofany ofthe following factors: (i) The current offense involved multiple victims ormultiple incidents pervictim; (ii) The current offense involved attempted or actual monetary loss substantially greaterthan typical for the offense (9.94A.535(3)(d)). Clerk'sPapers (CP) at 3.

I Sincethe opinion requires no discussion specific to either ofthe defendant's brothers, all references to "Mr. Mesecher" are to the defendant, CoryMesecher. 2No. 32088-0-III State v. Mesecher
At trial, thejury was provided with the pattern instruction on accomplice liability

over a defense objection thatthe instruction contained internally inconsistent language by stating that "more than merepresence and knowledge ofthe criminal activity ofanother must be shown to establish that a person present is an accomplice," and at the same time that "[a] person who is an accomplice in the commission ofa crime is guilty ofthat crime whether present at the scene or not." CP at 36 (Instruction 23). The defense did not object to the pattern definition instruction on the major economic offense aggravator, even though it had beenpreparedto include three ofthe factors that can support the aggravator rather than the two thathad been identifiedbythe information. The third factor included in the instruction was that proofbeyond a reasonable doubt that "[t]he crime involved a high degree ofsophistication orplanning or occurred over a lengthyperiod oftime" would support finding the aggravator. CP at 27 (Instruction 14). Thejuryfound Mr. Mesecher guilty offirst degree trafficking in stolen property as charged in count two, but was unable to reach a verdict on the theft charge, as to which the trial court declared a mistrial. Thejuryreturned a special verdict finding thatthe trafficking crime was a major economic offense. The court sentenced Mr. Mesecher to six months on the trafficking charge and six months for the aggravating circumstance. It imposed total legal financial obligations (LFOs) of$6,650, consisting of$4,800 in restitution, mandatory costs of$700, and 3No. 32088-0-111 State v. Mesecher discretionary costs of$1,150. Thejudgment and sentence contained boilerplate language stating the courthad considered the defendant's ability topay to which Mr. Mesecher madeno objection, despite the fact that the court had not inquired into Mr. Mesecher's financial resources orthe nature ofthe burden the LFOs wouldpresent. Mr. Mesecher's motions for a new trial and a stay ofhis sentence pending appeal

were denied. He appeals. ANALYSIS Mr. Mesechercontends on appeal that (1) the trial court erred in giving a nonunanimity special verdict instruction, (2) the evidence did not support the "major economic offense" aggravating circumstance, (3) the accomplice liability instruction contained internally inconsistent language, and (4) the record does not supportthe finding thatMr. Mesecherhas the current or future ability to paythe LFOs that were imposed. We address the asserted errors in tum. Non-unanimity special verdict instruction Mr. Mesecher contends that the trial court erred in instructing thejury that it did not need to be unanimous to answer no to the special verdict on the major economic offense aggravator. The instruction given by the court stated: In order to answer the special verdict forms "yes,"you must unanimously be satisfied beyond a reasonable doubt that "yes" is the correct answer. If you unanimously agree that the answer to the question is "no," orifafter

4No. 32088-0-III State v. Mesecher
full and fair consideration ofthe evidence you are not in agreement as to the answer, you must fill in the blankwith the answer "no." CP at 45 (Instruction 31). This type ofinstruction was properly in use for the 23 months that transpired between the Washington Supreme Court's July 2010 decision in State v. Bashaw, 169 Wn.2d 133, 146,234 P.3d 195 (2010) and its June 2012 decision in State v. Guzman Nunez, 174 Wn.2d 707, 285 P.3d 21 (2012), which overruled Bashaw. It was no longer correct and should not have been used when Mr. Mesecher was tried in October 2013. ButMr. Mesecher did not objectto the instruction in the trial court. He contends that the error in giving the instruction was a manifest constitutional error that may be raised for the first time onappeal. RAP 2.5(a)(3). InBashaw, our Supreme Courtruled that for purposes ofa special verdict addressing an aggravating circumstance-and contrary to the pattern instruction then in use-"aunanimousjury decision is not required to find that the State has failed to prove the presence ofa special finding increasing the defendant's maximum allowable sentence." 169 Wn.2d at 146. Relying on its earlier decision in State v. Goldberg, 149 Wn.2d 888, 72 P.3d 1083. (2003), overruledbyState v. Guzman Nunez, 174 Wn.2d 707, 285 P3d21 (2012), it reasoned that while "unanimity is required to find thepresence ofa special finding increasing the maximumpenalty, it is notrequired to find the absence of such a special finding." Bashaw, 169 Wn.2d at 147 (citation omitted). The court

5No. 32088-0-111 

# 1 State 

### v. Mesecher 

# i 

# I therefore held thejury instruction stating that all 12jurors must agree on an answerto the 

# I special verdict "was an incorrect statement ofthe law." 

### ld. 

# I Less than two years later, the court overruledBashaw's non-unanimity rule in Guzman Nunez, having concludedthat it "conflicts with statutory authority, causes needless confusion, does not serve the policies that gave rise to it, and frustrates the purpose of juryunanimity." 174 Wn.2d at 709-10. Mr. Mesecher is correctthat the instruction given in his case was improper in light ofGuzman Nunez, although as we have commentedbefore when the same error has been raised by a criminal defendant, the error operates to a criminal defendant's advantage. 2 But

### Mr. Mesecher is wrong in contending that the error was a manifest constitutional

error or, for that matter, constitutional error. Mr. Mesecherpoints out that article I, section 21 ofthe Washington Constitution guarantees a rightto a unanimousjury verdict in orderto convict, and that the Sixth Amendment to the United States Constitution requires that ajury must unanimously find beyond a reasonable doubt any aggravating circumstance that increases a defendant's sentence. Br. ofAppellant at 11. But as our Supreme Courtpointed out in Guzman

2 If jurors are required to deliberate to unanimity to answer yes, but not to answer no, then a criminal defendant will always be the beneficiary where thejurors give up their deliberation short ofunanimity.



### 6No. 32088-0-111 State v. Mesecher Nunez, whether unanimity is required to reject an aggravating circumstance presents a different issue. 174 Wn.2d at 712 (citing Bashaw, 169 Wn.2d at 146). The Supreme Court did not hold in Guzman Nunez that its decision in Bashaw had violated the federal or state constitutions. ItoverruledBashaw instead because Bashaw had been based on a rule announced in Goldberg, which it concluded, as noted earlier, "conflicts with statutory authority, causes needless confusion, does not serve the policies that gave rise to it, and frustrates the purpose of jury unanimity." Guzman Nunez, 174 Wn.2d at 709-10. In the context ofajury's decision to acquit, the purpose of jury unanimity is not compliance with a constitutional mandate but, as explained by the court in Guzman Nunez, "to promote thejurors' full discussion and well-considered determinations before returning a verdict." Id. at 718 (citing State v. Cross, 156 Wn.2d 580, 616, 132 P.3d 80 (2006) ("We wantjuries to deliberate, not merely vote their initial impulses and move on.")). By failing to object, Mr. Mesecher failed to preserve an error that was not constitutional, let alone a manifest constitutional error. We will not entertain it for the first time on appeal. RAP 2.5(a). Dueprocess andsuffiCiency challenges to the aggravated circumstance instruction Mr. Mesecher next contends that the special verdict must be vacated because two ofthree alternative factors identified to thejury as supporting the finding ofa major

7No. 32088-0-III State v. Mesecher
economic offense were not supported by substantial evidence and one ofthe factors had not been identified in the information. Although the prosecutor focused his attention on the first factor in closing argument, the State concedes trial court error on both counts and states that "the Special Verdict should be stricken, on this ground." Br. ofResp't at 6. The State nonetheless argues that the sentence itselfcannot be appealed because "a Standard Range sentence is not appealable, unless there was an error in determining the StandardRange." Id. at 4. The standard range for Mr. Mesecher's trafficking in stolen property offense, based on his offender score of"1,"was 6 to 12 months. Thejudgment and sentenceprovides for a total of 12 months ofconfinement-"6 months onthe base charge ofTrafficking in Stolen Property, plus an additional 6 months for the aggravating circumstances, for a total of 12 months." CP at 60. The sentence is anomalous, in that the use ofan aggravator finding contemplated by RCW 9.94A.535(3) is to "support a sentence above the standard range," and here, the total period ofconfinement imposed was within the standard range. Nonetheless, we will not ignore the fact that the courtbased sixmonths ofthe sentence on thejury's finding of the aggravating circumstance. This was especially clearwhen the court announced the sentence: And I think that thejuryhas found that aggravator in this case, and so ofcourse I would not question their verdict, here; I think there's evidence to support it as to the aggravator.

8

### No. 32088-0-III State 

### v. Mesecher 

### Now, whatto do about it, though, in the end I agree with [defense counsel] here on this penalty. And it would be six months on the underlying trafficking in stolen property, and thenjust shy ofanother six months, so one day shy ofayear on the-thetotal sentence, and give [five] months and 29 days ofthat would be the aggravator. Report ofProceedings (RP) at 283-84. The reliefrequested by Mr. Mesecher in connection with this error is only thatthe "special verdict
...be stricken." Br. ofAppellant at 16. Having filed the opening brief in late June 2014, appellate counsel undoubtedly realized that Mr. Mesecher, who was ordered to begin servinghis 12-month sentence on orbefore November 5, 2013, would complete the sentence before his appeal was even set for argument. While the sentence imposed onthe basis ofthe aggravator may be moot, we nonetheless address itto reject the State's argument that the fact that the total sentence imposed fell within the standard range wouldprevent Mr. Mesecher from appealing the six months imposed for the aggravating circumstance. RCW 9.94A.585(1) provides that "[a] sentence within the standard sentence range

... for an offense shall notbe appealed." As explained in State 

### v. Williams, 

### 149 Wn.2d 143, 146-47, 65 P.3d 1214 (2003), the general rule is that "the length 

### ofa criminal sentence imposed
... is not subject to appellate review, so long as the punishment falls within the correct standard sentencing range," aprecept "aris[ing] from the notion that, so long as the sentence falls within the properpresumptive sentencingranges set by the legislature, there can be no abuse ofdiscretion as a matter oflaw as to the sentence's 9

### No. 32088-0-III State 

### v. Mesecher length." 

### (Emphasis added.) "[I]t is well established," however, "that appellate review is still available for the correction oflegal errors or abuses ofdiscretion in the determination ofwhat sentence applies." Id. 

### at 147. Mr. Mesecher's challenge was notto the length ofhis sentenceper se, butto the sentencing court's imposition ofa sentence that it extendedbased on ajury finding ofan aggravating circumstancethat the State concedes cannot stand. As a practical matter there is nothing to be done about the sentence in this case. But contrary to the argument ofthe State, different circumstances would support not only vacating the finding ofthe aggravating circumstance, but also remanding for resentencing and the possibility ofa
new trial onthe aggravator. We acceptthe State's concessions and vacate the aggravating circumstance. Accomplice liability instruction 

### Mr. Mesecher next argues that his conviction must be reversed becausethe accomplice liability instruction contained internally inconsistent language. Where a defendant alleges an error oflaw in ajury instruction, we review the instruction de novo. State 

### v. Willis, 

### 153 Wn.2d 366,370,103 P.3d 1213 (2005). The Washington pattern instruction on accomplice liability given by the trial court informedthe jury: A person is guilty ofa crime ifit is committed by the conduct of anotherperson for which he or she is legally accountable. A person is

10No. 32088-0-111 State v. Mesecher legally accountable for the conduct ofanotherperson whenhe or she is an accomplice ofsuch otherperson in the commission ofthe crime. A person is an accomplice in the commission ofa crime if, with knowledge that it will promote orfacilitate the commission ofthe crime, he or she either: (1) solicits, commands, encourages, orrequests anotherperson to committhe crime; or (2) aids or agrees to aid anotherperson in planning orcommittingthe cnme. The word "aid" means all assistance whether given by words, acts, encouragement, support, orpresence. A person who is present at the scene and ready to assist by his orher presence is aiding in the commission ofthe crime. However, more than mere presence and knowledge ofthe criminal activity ofanother must be shown to establish that a personpresent is an accomplice. A person who is an accomplice in the commission ofa crime is guilty ofthat crime whetherpresent at the scene ornot. CP at 36 (Instruction 23); 11 WASHINGTON PRACTICE: WASHINGTON PATTERN JURY INSTRUCTIONS: CRIMINAL 10.51, at 217 (3rd ed. 2008) (WPIC). As noted inState v. Hoffman, WPIC 10.51 "is drawn directly from the accomplice statute." 116 Wn.2d 51,102-04,804 P.2d 577 (1991) (finding no error in the instruction insofar as it correctly states the mental state required for an accomplice). Thepattern instruction largely mirrors the language ofthe accomplice statute, adding a definition of the term "aid." State v. Williams, 28 Wn. App. 209, 211, 622 P.2d 885 (1981). Its definition of"aid" as requiring assistance or readiness to assist is consistent with Washington case law. Id.; In re Wilson, 91 Wn.2d 487, 491,588 P.2d 1161 (1979); State

v. Aiken, 72 Wn.2d 306, 349, 434 P.2d 10 (1967), vacatedon othergrounds by Wheat v. Washington, 392 U.S. 652, 88 S. Ct. 2302,20 L. Ed. 2d 1357 (1968). 11i

### .~ 

# 1 

# I 1 No. 32088-0-111 1 State v. Mesecher 

### J 

# I Mr. Mesecher nonetheless argues that the last two sentences ofthe instruction are inconsistent insofar as they require "morethan mere presence"to establish that aperson 

# I I is an accomplice but then states that aperson may be an accomplice "whetherpresent at 

# i the scene or not." CP at 36. The instruction would be internally inconsistent ifits r definition ofaccomplice required "morethan merepresence"-"presence-plus"-andyet 

# I the instruction elsewhere stated thatpresence was not required. Butthe language that i concerns Mr. Mesecher is notpart ofthe definition ofaccomplice. The definition is found in the instruction's language, "Aperson is an accomplice in the commission ofa crime if, with knowledge that it will promote or facilitate the commission ofthe crime, he or she either: (1) solicits, commands, encourages, or requests another person to committhe crime; or (2) aids or agrees to aid another person in planning or committing the crime." ld. That definition can be satisfiedby circumstances in which aperson is present at the crime, or circumstances in which a person is not present-itdepends on what else the person does in the way ofsoliciting, commanding, encouraging, requesting, aiding or agreeing to aid another person in planning or committing the crime. There is nothing contradictory, then, in saying that an accomplice mightbe present at the crime, ormight not be. The lasttwo sentences ofthe instruction simply clarify that as a factor, a person'spresence at the crime is neither necessary nor sufficient to establish his orher status as an accessory.



### 12No. 32088-0-III State v. Mesecher
The trial court correctly overruled Mr. Mesecher's objection when it observed, "Youcan be an accomplice ifyou'represent, and do something in addition, and then you
can be an accomplice when you're not even present ifyou orchestrate or command or solicit, set up the whole affair." RP at 196. The instruction is not internally inconsistent. Allegedfailure to consider ability topayLFOs 

### Mr. Mesecher's final challenge is to the trial court's imposition ofLFOs. He contends that the court failed to take into account his present or future ability to pay, as required by RCW 10.01.160. While the felonyjudgment and sentence form used by the court contains a printed finding that the court consideredMr. Mesecher's ability to pay,3 the record does not otherwise reflect such consideration. Evidence ofability to pay was unnecessary to support the mandatory financial obligations imposedby the court. The $500 victim assessment, $200 criminal filing fee, and $100 DNA collection fee are each required by statute, irrespective ofthe defendant's ability to pay. State v. Lundy, 176 Wn. App. 96, 102,308P.3d 755 (2013) (noting that,
3The felonyjudgmentand sentence form employedby the court includes the following language: 

### 2.5 Legal Financial Obligations/Restitution. The court has considered the total amount owing, the defendant'spresent and future ability to pay legal financial obligations, including the defendant's financial resources and the likelihoodthatthe defendant's status will change. (RCW 10.01.160). CP at 60. 13No. 32088-0-III State 

### v. Mesecher
for these costs, "the legislature has directed expressly that a defendant's ability to pay should not be taken into account"); RCW 7.68.035(l)(a); RCW 36.18.020(2)(h); RCW 43.43.7541. Restitution is also required by statute, without regard to ability to pay. RCW 9.94A.753(4), (5) ("Restitution shallbe ordered wheneverthe offender is convicted ofan offense whichresults in injuryto any person or damage to orloss ofproperty" and "[t]he court may not reduce the total amount ofrestitution ordered because the offender may lack the ability to paythe total amount.") (emphasis added). With respect to the financial obligations that were discretionary, Mr. Mesecher made no objection at the sentencing hearing and thereby failed to preserve a claim of

error. RAP 2.5(a); State v. Blazina, 182 Wn.2d 827, 833, 344 P.3d 680, (2015); State v. Duncan, 180 Wn. App. 245, 253, 327 P.3d 699 (2014), reviewgranted, P.3d

__ (2015). We will not consider the issue for the first time on appeal. We vacate the aggravated circumstance finding and otherwise affinn. A majority ofthepanel has detenninedthis opinion will not be printed in the Washington Appellate Reports, butit will be filed for public record pursuantto RCW 2.06.040.

WE CONCUR:

Brown, J.

# l~~-----t--'---\- Lawrence-Berrey, J. 14