IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON,

Respondent,

v.

CHRISTOPHER SEAN BURRUS,

Appellant.

No. 80849-4-I

DIVISION ONE

PUBLISHED OPINION

CHUN, J. — Christopher Burrus poured gasoline on Kasey Busch and 

threw a lit flare at him, causing him to catch fire. Busch suffered second and 

third degree burns on 30 percent of his body. The State charged Burrus with 

attempted first degree murder with the aggravating factor that his conduct 

manifested deliberate cruelty. The jury found Burrus guilty as charged. Based 

on the jury’s finding of deliberate cruelty, the trial court imposed an exceptional 

sentence. Burrus challenges the to-convict instruction and the exceptional 

sentence. We affirm.

I. BACKGROUND

Burrus spent time at an industrial warehouse referred to as “the shop,” 

where he would occasionally work, salvaging materials and electronics, and 

sleep. Joe Colella, whose family owned the shop, and Ryan Moore lived there

and Burrus had known them for years. Busch occasionally looked for welding 

work at the shop and knew Burrus, Colella, and Moore.
No. 80849-4-I/2

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During the summer of 2017, following a dispute, Colella told Burrus he 

was not welcome in the shop. By November, Burrus was staying with his thengirlfriend Chantal Lotorto and was not sleeping at the shop. Burrus claims that 

Lotorto dated Busch before dating him, but the State disputes this. Busch 

testified that he and Lotorto never got along and that he suspected that she had 

stolen some of his work tools.

In November 2017, Busch lost his home and began sleeping at the shop. 

A few days later, Lotorto went to the shop to remove her belongings upon 

Colella’s request. Burrus went with her. Because he was unwelcome in the 

shop, Burrus waited outside by Lotorto’s van. Busch noticed that Lotorto was 

carrying a specialized wrench that he suspected she had stolen from him. He 

accused her of stealing it and grabbed it. The two struggled over the wrench and 

then Busch released it, causing Lotorto to fall backwards. Busch testified that 

Lotorto then raised the wrench as if to strike him, he picked up a tool to defend 

himself, and she turned and left the shop. Lotorto told Burrus that she had fought 

with Busch and showed him a small mark on her face that she indicated that 

Busch caused. Burrus said he was “a little hurt and frustrated” as a result.

Busch went outside to speak with Burrus and offered him $50 to get the 

wrench back from Lotorto. Busch testified that during this conversation he saw 

no indication that Burrus was angry with him.

Busch and Moore then left the shop to go to a scrapyard; they were gone 

for about an hour. When they returned, Moore saw Burrus poke his head around 

the corner of the building and then duck back into the alley where Lotorto’s van 
No. 80849-4-I/3

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was parked. Burrus emerged from the alley holding a “Big Gulp” cup. As Burrus 

approached the car, Busch saw something in Burrus’s sleeve, which he thought 

might be his stolen wrench. Burrus spoke briefly with Moore and then 

approached Busch. He called out to Busch and threw the contents of the cup on 

Busch. Busch immediately realized that the cup contained gasoline and began 

to flee. Burrus then lit a roadside flare and threw it at Busch, causing him to 

catch fire. Busch rolled into the street desperately trying to extinguish the flames. 

Burrus fled the scene. Moore tried to put out the fire but caught himself on fire as 

well. Colella dragged a hose from the shop and extinguished the flames. 

Multiple passersby called 911. When first responders arrived, Busch was in 

extreme pain. Busch suffered second and third degree burns on over 30 percent 

of his body. Busch underwent skin grafts and remained in the hospital for almost 

two months to recover.

The State charged Burrus with attempted first degree murder with the 

aggravating factor that his conduct manifested deliberate cruelty.

During trial, Burrus admitted to dumping gasoline on Busch and throwing a 

lit flare at him. But he denied intending to kill Busch. Burrus testified that his 

intention was to intimidate Busch and look like he was standing up for Lotorto in 

front of the others by causing a quick burst of flames. Burrus said he expected 

that lighting gasoline would result in a similar flame as lighting lighter fluid and 

was horrified by what actually happened. Burrus said he had not decided to 

engage in this conduct until he was approaching Busch and that he had the 
No. 80849-4-I/4

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gasoline in a cup because he had been “huffing”

1

it. He also said that he had the 

flare because he had picked it up and put it in his pocket earlier that day.

The trial court instructed the jury on attempted first degree murder. The 

to-convict instruction for attempted first degree murder did not contain the 

element of premeditation. After the jury had begun its deliberation, Burrus 

requested that the trial court instruct the jury on the lesser included count of

attempted second degree murder. The court did so. The parties gave 

supplemental closing arguments based on the added instruction.

The jury found Burrus guilty of attempted first degree murder and found 

that the State proved the aggravating factor of deliberate cruelty.

The State sought an exceptional sentence of 300 months. The standard 

sentence range for the crime is 180–240 months. During the sentencing hearing, 

Busch asked the court to give Burrus the lowest sentence possible. Burrus 

requested a mid-range sentence of 210 months and apologized to Busch. The 

trial court found that the aggravating factor of deliberate cruelty was a compelling 

reason to justify an exceptional sentence and imposed a sentence of 300 

months.

II. ANALYSIS

A. Instructional Error 

Burrus says that the trial court erred by omitting the element of 

premeditation in its to-convict instruction for attempted first degree murder.2 The 

 

1

“Huffing” refers to inhaling fumes to achieve a high.

2 Though Burrus did not object on this ground below, “[t]he issue of omission of 

an element from that instruction is of sufficient constitutional magnitude to warrant
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State responds that the court was not required to do so. We agree with the 

State. 

“[W]e review the challenged instructions de novo in the context of the 

instructions as a whole.” State v. Imokawa, 194 Wn.2d 391, 396, 450 P.3d 159 

(2019).

“Jury instructions satisfy due process ‘when, taken as a whole, they 

properly inform the jury of the applicable law, are not misleading, and permit the 

defendant to argue his theory of the case.’” State v. Orn, No. 98056-0, slip op. at 

21–22 (Wash. Mar. 18, 2021) https://www.courts.wa.gov/opinions.pdf/980560.pdf

(quoting State v. Tili, 139 Wn.2d 107, 126, 985 P.2d 365 (1999)); U.S. CONST.

amend. XIV; CONST. art. I, § 3. A to-convict instruction must “‘contain all of the 

elements of the crime because it serves as a ‘yardstick’ by which the jury 

measures the evidence to determine guilt or innocence.’” Orn, slip op. at 22 

(quoting State v. Smith, 131 Wn.2d 258, 263, 930 P.2d 917 (1997)).

“The statutory crime of attempt ‘contains two essential elements the State 

has to prove to secure a conviction: (1) intent to commit a specific crime and 

(2) any act constituting a substantial step toward the commission of that crime.’” 

Id. (quoting State v. Nelson, 191 Wn.2d 61, 71, 419 P.3d 410 (2018)). A toconvict instruction for an attempt crime “need not also set out the elements of the 

substantive crime attempted,” those elements “may be contained in a separate, 

 

review when raised for the first time on appeal.” State v. Mills, 154 Wn.2d 1, 6, 109 P.3d 

415 (2005); see RAP 2.5(a)(3). 
No. 80849-4-I/6

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definitional jury instruction.” Id. (citing State v. DeRyke, 149 Wn.2d 906, 911, 73 

P.3d 1000 (2003); State v. Nelson, 191 Wn.2d 61, 72, 419 P.3d 410 (2018)).

Our Supreme Court held in Orn that a to-convict instruction for attempted

first degree murder need not include the element of premeditation. Id. at 22–24. 

In Orn, the trial court instructed the jury on attempted first degree murder based 

on WPIC 100.02. Id. at 23. The instruction provided

To convict the defendant of the crime of attempted murder in 

the first degree . . . each of the following elements of the crime must 

be proved beyond a reasonable doubt: 

(1) That on or about August 2, 2016, the defendant did an act 

that was a substantial step toward the commission of murder in the 

first degree; 

(2) That the act was done with the intent to commit murder in 

the first degree; and

(3) That the act occurred in the State of Washington.

Id. (alteration in original). A separate instruction defined first degree murder as 

follows: “A person commits the crime of murder in the first degree when, with a 

premeditated intent to cause the death of another person, he or she causes the 

death of such person.” Id. (emphasis added). The court determined that the “toconvict instruction did not omit any essential element of the crime of attempt, and 

‘taken as a whole’ the jury instructions ‘properly inform[ed] the jury of the 

applicable law.’” Id. at 24 (quoting Tili, 139 Wn.2d at 126). 

Here, the trial court gave this to-convict instruction to the jury:

To convict the defendant of the crime of attempted murder in the 

first degree, each of the following elements of the crime must be 

proved beyond a reasonable doubt:

(1) That on or about November 7, 2017, the defendant did an act 

that was a substantial step toward the commission of murder in the 

first degree;
No. 80849-4-I/7

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(2) That the act was done with the intent to commit murder in the

first degree; and

(3) That the act occurred in the State of Washington.

As in Orn, this instruction is based on WPIC 100.02. A separate instruction 

provided, “A person commits the crime of murder in the first degree when, with a 

premeditated intent to cause the death of another person, he or she causes the 

death of such person or of a third person.” (Emphasis added.) And the trial court 

defined premeditation in another instruction.

The instructions given here are nearly identical to those given in Orn. Our 

Supreme Court has held that a trial court does not err by giving such instructions. 

We conclude that the trial court did not err in omitting premeditation from the toconvict instruction for attempted first degree murder. 

B. Exceptional Sentence 

Burrus says that for several reasons, the trial court erred in imposing an 

exceptional sentence based on the jury’s finding of deliberate cruelty.3 We 

disagree with his arguments. 

Under the Sentencing Reform Act, generally, a court must impose a 

sentence within the standard range. RCW 9.94A.505. A court may impose a 

sentence outside the standard range if it finds “substantial and compelling 

reasons justifying an exceptional sentence.” RCW 9.94A.535. The existence of 

an aggravating factor may support an exceptional sentence. RCW 9.94A.535(3).

Aside from limited exceptions, the facts supporting an aggravating factor must be 

 

3 Because we conclude that the trial court did not improperly instruct the jury, we 

do not address Burrus’s contention that improper instruction resulted in an improper 

exceptional sentence.
No. 80849-4-I/8

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found by a unanimous jury. RCW 9.94A.535; RCW 9.94A.537(3). One such 

aggravating factor is when “[t]he defendant’s conduct during the commission of 

the current offense manifested deliberate cruelty to the victim.”

RCW 9.94A.535(3)(a).

The trial court instructed the jury that it must determine “[w]hether the 

defendant’s conduct during the commission of the crime manifested deliberate 

cruelty to the victim.” The instructions defined deliberate cruelty as “gratuitous 

violence or other conduct that inflicts physical, psychological, or emotional pain 

as an end in itself, and which goes beyond what is inherent in the elements of the 

crime.” The jury returned a special verdict form finding that Burrus’s conduct 

manifested deliberate cruelty. The trial court imposed an exceptional sentence 

based on the jury’s finding.

1. Sufficiency of the evidence 

Burrus says insufficient evidence supports the jury’s finding of deliberate 

cruelty. He contends that because the State failed to provide comparative 

evidence of typical attempted first degree murders, the jury had insufficient 

evidence to determine whether the facts here were atypical. The State responds

that it was not required to provide examples of typical attempted first degree 

murders and that the jury was able to use its common experience to determine 

whether Burrus’s actions were deliberately cruel. We agree with the State. 

The State must prove the facts supporting an aggravating factor to a jury 

beyond a reasonable doubt. RCW 9.94A.537(3). We review the sufficiency of 

the evidence for an aggravating factor in the same way as we review it for the 
No. 80849-4-I/9

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elements of a crime. State v. Zigan, 166 Wn. App. 597, 601, 270 P.3d 625 

(2012). “Under this standard, we review the evidence in the light most favorable 

to the State to determine whether any rational trier of fact could have found the 

presence of the aggravating circumstances beyond a reasonable doubt.” Id. at 

601–02.

Burrus cites State v. Suleiman, 158 Wn. 2d 280, 143 P.3d 795 (2006), to 

support his contention that the State is required to provide comparative evidence 

of typical attempted first degree murders. But Suleiman is distinguishable. The 

case concerns whether the defendant’s stipulation of facts sufficed to waive the 

requirement that a jury find facts supporting an aggravating factor beyond a 

reasonable doubt. Id. at 294. The court held that the aggravating factors the 

sentencing court relied upon necessarily involved judicial fact finding, which ran 

afoul of Blakely’s4requirement that a jury find those facts. Id. at 294 n.5. Burrus 

relies on this language in Suleiman: “a determination of whether this crime was 

far more egregious than the typical vehicular assault also necessarily requires a 

factual comparison.” Id. But that language concerns whether the sentencing 

court exercised judicial fact finding, it does not create a requirement that the 

State must provide comparative evidence. Burrus does not cite any case 

imposing such a requirement. It is within a jury’s capability, based on their 

common sense and common experience, to determine that dousing a person in 

gasoline, lighting them on fire, and then leaving them to burn is deliberately cruel.

See State v. Boyle, 183 Wn. App. 1, 13, 335 P.3d 954 (2014) (“A juror properly 

 

4 Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 2533 (2004).
No. 80849-4-I/10

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brings his or her opinions, insights, common sense, and everyday life experience 

into deliberations.”). We conclude that the lack of comparative evidence does 

not mean that insufficient evidence supported the jury’s finding of deliberate 

cruelty. 

2. Vagueness

Burrus says the aggravating factor of deliberate cruelty is 

unconstitutionally vague. He contends that aggravating factors are elements of 

the charged crime and are thus subject to a vagueness challenge. The State 

responds that the vagueness doctrine does not apply to the deliberate cruelty 

aggravating factor, and even if it did, the factor is not unconstitutionally vague. 

We conclude that the vagueness doctrine does not apply to the aggravating 

factor of deliberate cruelty. 

“We review the constitutionality of a statute de novo.” State v. Eckblad, 

152 Wn.2d 515, 518, 98 P.3d 1184 (2004). “Vagueness challenges ‘are 

evaluated in light of the particular facts of each case,’ unless the First 

Amendment is implicated.” Id. (quoting City of Bremerton v. Spears, 134 Wn.2d 

141, 159, 949 P.2d 347 (1998)).

Under the due process clauses of the Washington and United States 

constitutions, a legal prohibition is “‘unconstitutionally vague if (1) it does not 

sufficiently define the proscribed conduct so an ordinary person can understand 

the prohibition or (2) it does not provide sufficiently ascertainable standards to 

protect against arbitrary enforcement.’” State v. Wallmuller, 194 Wn.2d 234, 239, 

449 P.3d 619 (2019) (quoting State v. Padilla, 190 Wn.2d 672, 677, 416 P.3d 
No. 80849-4-I/11

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712 (2018)); U.S. CONST. amend. XIV; CONST. art. I, § 3. “For purposes of the 

vagueness doctrine, our cases do not distinguish between state and federal 

protections.” Wallmuller, 194 Wn.2d at 239.

a. State v. Baldwin

Our Supreme Court held in State v. Baldwin, 150 Wn.2d 448, 459, 78 P.3d 

1005 (2003), that the vagueness doctrine did not apply to the then-existing 

aggravating factors in the Sentencing Reform Act. Under former 

RCW 9.94A.120 (2000), the trial court was permitted to impose an exceptional 

sentence upon finding substantial and compelling reasons to do so. Id. at 458–

59. Former RCW 9.94A.3905listed aggravating factors, including deliberate 

cruelty, that the trial court could use to justify an exceptional sentence, but it was 

not required that a jury find the facts underlying the factors. Id. at 459. The 

defendant challenged those provisions as unconstitutionally vague. Id. at 457.

The court determined that the vagueness doctrine focuses on two 

concerns: fair notice of proscribed conduct and preventing arbitrary application of 

the law. Id. at 458. The court said the doctrine “focus[es] on laws that prohibit or 

require conduct,” and because the sentencing guidelines did not define conduct 

or allow for arbitrary application, the “due process considerations that underlie 

the void-for-vagueness doctrine have no application in the context of sentencing 

guidelines.” Id. at 459. 

 

5

“The statutes’ present equivalents lie in RCW 9.94A.535.” State v. DeVore, 2 

Wn. App. 2d 651, 661, 413 P.3d 58 (2018).
No. 80849-4-I/12

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In reaching its holding, the court noted that the sentencing guidelines “do 

not inform the public of the penalties attached to a criminal conduct nor do they 

vary the statutory maximum and minimum penalties assigned to illegal conduct 

by the legislature.” Id. The court also emphasized, “[f]undamental to both 

statutes being challenged is the notion that a court is free to exercise discretion 

in fashioning a sentence.” Id. at 460. The court said, “[t]he guidelines are 

intended only to structure discretionary decisions affecting sentences; they do 

not specify that a particular sentence must be imposed. Since nothing in these 

guideline statutes requires a certain outcome, the statutes create no 

constitutionally protectable liberty interest.” Id. at 461.

b. Whether Baldwin controls

Burrus says that Blakely invalidates Baldwin’s holding. In Blakely, the 

United States Supreme Court held that under the Sixth Amendment, the facts 

supporting an exceptional sentence beyond the standard range must be found by 

a jury. Id. at 296. The Court explained that a court may impose a sentence 

above the standard range only if a jury finding of an aggravating factor supports 

an exceptional sentence. Id. In light of Blakely, the legislature amended the

Sentencing Reform Act to require that a jury find the underlying facts for an

aggravating factor unless limited exceptions apply. See RCW 9.94A.535; 

RCW 9.94A.537(3). Thus, Burrus contends, the trial court’s sentencing decision 

is no longer discretionary in the way that it was when the court decided Baldwin

and its reasoning no longer applies.
No. 80849-4-I/13

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Yet this court has rejected the contention that Baldwin no longer applies 

after Blakely. See State v. DeVore, 2 Wn. App. 2d 651, 665, 413 P.3d 58 (2018)

(“we hold that challenges to the destructive impact factor and other aggravating 

factors under RCW 9.94A.535(3) do not merit review under the void for 

vagueness doctrine.”); State v. Brush, 5 Wn. App. 2d 40, 63, 425 P.3d 545 

(2018) (“We hold that Baldwin remains good law. Accordingly, we apply Baldwin

and hold that Brush cannot assert a vagueness challenge to

RCW 9.94A.535(3)(h)(i).”).

Burrus says that Brush and DeVore incorrectly rely on a determination that 

a jury’s finding of an aggravating factor does not alter the sentencing range. 

Burrus contends that because a jury’s finding of an aggravator allows a court to 

impose an exceptional sentence up to the statutory maximum, rather than within 

the standard range, the existence of an aggravating factor does alter the 

sentencing range. Burrus recognizes that the aggravating factors here do not 

change the minimum sentence but says that the increase in the allowable 

sentence length renders the reasoning in Brush and DeVore flawed. 

We disagree. As this court noted in Brush, “the aggravating factors in 

RCW 9.94A.535(3) do not fix sentences or the ranges of sentences for any crime 

and do not vary any statutory minimum or maximum sentence.” 5 Wn. App. 2d at 

61; see also DeVore, 2 Wn. App. 2d at 665 (“The trial court must still sentence 

the defendant within the statutory maximum of the crime”). A jury’s finding of 

deliberate cruelty does “not specify that a particular sentence must be imposed” 

or “require[ ] a certain outcome.” Baldwin, 150 Wn.2d at 461. “RCW 9.94A.535
No. 80849-4-I/14

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still provides the trial court with discretionary authority to impose or not to impose 

an exceptional sentence even when the jury finds an aggravating factor.” Brush, 

5 Wn. App. 2d at 62.

Burrus also says that the two United States Supreme Court cases that

DeVore and Brush cite—Johnson v. United States, 576 U.S. 591, 135 S. Ct. 

2551, 192 L. Ed. 2d 569 (2015) and Beckles v. United States, 137 S. Ct. 886, 

197 L. Ed. 2d 145 (2017)—support his position. 

In Johnson, the Court applied the vagueness doctrine to a provision of the 

Armed Career Criminal Act, which increased the applicable sentence from a 

maximum of 10 years to a minimum of 15 years. 576 U.S. at 593, 596. The

Court stated that the vagueness doctrine applies “not only to statutes defining 

elements of crimes, but also to statutes fixing sentences.” Id. at 596.

In Beckles, the Court held that a provision containing almost identical 

language to the provision at issue in Johnson was not subject to the vagueness 

doctrine specifically because the provision was an advisory sentencing guideline.

137 S. Ct. at 892. The Court noted “the advisory Guidelines do not fix the 

permissible range of sentences. To the contrary, they merely guide the exercise 

of a court’s discretion in choosing an appropriate sentence within the statutory 

range.” Id. The Court also said that the guidelines “advise sentencing courts 

how to exercise their discretion within the bounds established by Congress.” Id.

at 895.

Burrus contends that the aggravating factors in this case are

distinguishable from the advisory guidelines in Beckles and therefore are subject 
No. 80849-4-I/15

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to the vagueness doctrine. Burrus emphasizes that, unlike in Beckles, the 

“existence of an aggravator is necessary to impose” an exceptional sentence. 

But Burrus confuses a necessary factor with a sufficient once. Though the jury’s 

finding of deliberate cruelty increases the permissible sentence to the statutory 

maximum, it does not require an exceptional sentence. As in Beckles, the trial 

court is still free to exercise its discretion in determining the appropriate 

sentence.

Burrus also says that because Beckles holds that the vagueness doctrine 

applies to laws that permit a jury to “prescribe the sentences or sentencing range 

available,” it applies to aggravating factors. Id. at 894–95. Burrus contends that 

RCW 9.94A.535 is a law permitting the jury to prescribe the sentencing range 

because it allows the trial court to impose a sentence up to the statutory 

maximum. But as discussed above, the jury’s finding of deliberate cruelty 

permits but does not require a sentence up to the statutory maximum, which 

remains unchanged. 

In light of the foregoing, we conclude that Baldwin controls here. The trial 

court’s sentencing decision remains discretionary despite Blakely’s requirement 

that a jury find the facts supporting the aggravating factors. Because the jury’s 

finding of deliberate cruelty does not change the statutory minimum or maximum 

sentence, and does not require a specific sentence, it does not affect a person’s 

ability to know the penalty for certain conduct. See Baldwin, 150 Wn.2d at 459

(noting that the former aggravating factors do not “inform the public of the 

penalties attached to a criminal conduct nor do they vary the statutory maximum 
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and minimum penalties assigned to illegal conduct by the legislature.”). We 

conclude that the vagueness doctrine does not apply to the aggravating factor of 

deliberate cruelty.6

We affirm.

WE CONCUR:

 

6 Burrus also relies on State v. Allen to say that because aggravating factors are 

considered elements of a crime, they should be subject to the vagueness doctrine. 192 

Wn.2d 526, 544, 431 P.3d 117 (2018) (“The aggravating circumstances therefore no 

longer meet the definition of “sentencing factors” for Sixth Amendment purposes. They 

are elements.”). But the Allen court determined that aggravating circumstances in a 

different statutory provision from RCW 9.94A.535, which increased the minimum 

sentence, were elements for purposes of the double jeopardy analysis. Id. at 533, 544. 

Allen does not address the vagueness doctrine or the RCW 9.94A.535 aggravators.