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### FILED NOVEMBER9, 2017 In the Office ofthe Clerk ofCourt WA State Court ofAppeals, Division III

INTHE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE STATE OF WASHINGTON, ) ) No. 34230-1-111 Respondent, ) ) v . ) ) CRAIG SCOTTBURTON, ) UNPUBLISHED OPINION ) Appellant. ) FEARING, C.J.

- CraigBurtonwishedto die. Because ofhis father's background in law enforcement andhis ownbackground in the military, Burton soughtto commit suicide by cop. He successfullyprovokedpolice officers into shooting him, butnot into killing him. Burton appeals on numerous grounds his convictions for assault onthe officers. Because ofthetragic circumstances that ledtohis suicide attempt, he also pleadsthatthis court directthetrial courtto reduce his lengthy sentence. Like the trial court, we empathizewithBurton, but our empathywill ring hollowto him. Weprovide Burtonno relieffrom his convictions and only limitedrelieftohis sentence.No. 34230-1-111 State v. Burton

FACTS The trial court convicted Craig Burton ofthree counts ofsecond degree assault after a bench trial. Wepurlointhe facts from the trial court's thirty-fivepages offindings offact and conclusions oflaw. We startwith some background ofappellant Craig Burton. Burton's father served in the Air Force and as a police officer, sheriff, and corrections officer. CraigBurton learnedpolice work from his father. He laterjoinedthe United States Army. Burton served on active duty for four years andtwo years in the National Guard. He received extensive weapons and de-escalation ofhostility training. Craig Burton suffers from attention deficit hyperactivity disorder (ADHD). To combatADHD during military service, BurtontookAdderall XR. The medication successfully managedthe disorder's symptoms. Whenthe AirForce honorably discharged Burton, it advanced him a ninety-day supply ofAdderall. After leaving the military, Craig Burton obtained employment as an intermediate

care technician withthe Spokane Veteran's Affairs (VA) hospital. Burtonmarried Tiffany Shuskey, andthe couple bore children. In January 2015 whenthe marriage soured, Burton cohabitatedwith girlfriend Rebecca "Becca"Libby. Clerk'sPapers (CP) at 117.The Spokane VA hospital treated Craig Burton for ADHD. After one VA physician lowered Burton's dosage for Adderall, Burton's ADHD symptoms returned, 2No. 34230-1-111 State v. Burton

andhe requested an increase in the dosage. In February 2015, a VAphysician declined to increase the Adderall prescription and insteadprescribedPaxil, the trade name for Paroxetine. In March 2015, suicidal thoughts commencedto haunt Burton. When Burton told his physician about his suicidal ideation, the doctor counseledhimto await the medication's effect. In late April 2015, Burton attempted suicide by overdosing on prescription medications. BeccaLibby rushed Burtonto a hospital emergency room. After Craig Burton advisedthe VAhospital ofhis suicide attempt, a VAphysician doubled CraigBurton's Paxil prescription. Burton's suicidal deliberations continued nonetheless. The events leading to Craig Burton'sprosecution for assault ofpolice officers occurred on May 6, 2015. Onthat day, Burton felt overwhelmedby life's circumstances. His wife Tiffany Shuskey would soon finalize their divorce. Burton questioned his ability to afford child support, and he feared he may lose his home andvehicle. His relationship with girlfriendBeccaLibby deteriorated. As a result ofdesultory texts from Craig Burton during the early morning ofMay 6, BeccaLibby visited Burton's residence and attempted to cheerhim. Burton acted cold and withdrawn. Libby and Burton later wentto their respective workplaces. Duringthe workday, Burton and Libby exchanged text messages that increased Libby's alarm for Burton's welfare. Afterwork, Libby sought advice, from her mother Karen Christopher, about quieting Burton. Libby and Christopher chose to visit Burton at his North Ash 3No. 34230-1-III State v. Burton Street, Spokane, home. Ash Street functions as a majornorth-south arterial street in Spokane. Craig Burton's residence fronted the arterial, and his property included a back alley with a detached garage. The alley held an area for parking. An eight-foot high white vinyl privacy fence surrounded Burton'sbackyard. At 8:00 p.m., on May 6, Karen Christopher and BeccaLibby arrived at Craig Burton's Ash Streethome. Christopherparkedher carbehind Burton's Suburban in the alley parking area. Christopher and Libby entered Burton'sbackyard and sawhim sitting

on his backporch. A beerrested on the steps nextto Burton. BeccaLibby went inside Craig Burton'sresidence while Karen Christopher conversed with Burton in the backyard. Christopher found Burton quiet, and he appeared to have been sobbing. Christopher did not considerhim intoxicated. Burton continuously muttered,'"Life is not fair,"' while referencing his divorce andthepossible loss ofhis children, house, and truck. CP at 117. Burtonrepeatedly asked Christopherto "'call the police.'" CP at 118. When Burtonreached for a beer, Christophernoticed a handgun. She did not deem Burton as a threatto her, but she worriedthat Burton was suicidal. Christopher asked himto hand herthe gun. Burtonrefused. Unbeknownstto others, Craig Burton schemedto commit suicideby cop. He believedthat, ifhe engendered certain circumstances, experienced and skilled law enforcement officers would shoot and kill him. Burtonhad earlier loaded the gunthat 4No. 34230-1-III State v. Burton

rested on the backporch. Karen Christopher entered the residence and told her daughterthat Craig Burton possessed a gun. Christopher called 911 and reported Burton'sbehaviorto a dispatch operator. Dispatch advised Christopherto leave the residence. Christopher complied, butBeccaLibby remained in Burton's house. BeccaLibbyjudgedBurton as intoxicated and suicidal. Libby fleetingly exitedto the porch, grabbed a clip ofbullets, and hid the bullets in a purse. At 10:00 p.m. on May 6, 2015, Spokane Police Officers Christopher Benesch, Sean Wheeler, and Adam Potterrespectively answered dispatch's summons to Craig Burton's Ash Street residence to investigate an intoxicated, suicidal male with a gun. The three officers assembled in the alley behind and north ofBurton'sresidence. Officer Potter carried a Colt AR 15 semi-automatic rifle and a ballistic shield. OfficerWheeler bore a beanbag gun, and Officer Beneschheld a ballistic shield in one hand and his duty weapon in the other. Darkness, except for a lone spotlight, abounded in the alleyway. The officers formulated a plan to instigate a conversation with Craig Burton. Spokane Officers Blaine Kakuda, Troy Teigen, John Arredondo, Joseph Matt, Yeshua Matthew, Jake Jensen, Nicholas Spolski, and Lieutenant Dean Sprague also arrived near the Ash Streetresidence and assembled in the alley to the south ofBurton's home. Jensen wore a body camerathat filmed the coming drama. The State would charge Craig Burton with assaulting Officers ChristopherBenesch and Adam Potter, who 

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No. 34230-1-111 State v. Burton

stood north ofthe alley, and Officer Jake Jensen, who stood south ofthe alley. Therefore, these three officers' fears loom important. Craig Burton heard sirens, but saw no law enforcement officers in front ofhis home. He had expected thatpolice would first knock on his door. He wentto his backyard gate and noticed police in the alley north ofhis parked Suburban. While still inside his gatedbackyard, Craig Burton fired three rounds from his pistol into neighborhood trees. Burton aimed into the trees so he would nothit an officer

or a neighbor. He also did not wantpolice to shootneighbors orhis dog, who rested inside his home. Craig Burton assumed his shots would prompt law enforcement officers to retreat. All eleven assembled officers heard the pistol shots, butnone could see Burton inthe dark behind his backyard fence. Officer Christopher Benesch saw, overthe fence, Burton's pistol and a muzzle flash. Officers Adam Potter, Sean Wheeler, Blaine Kakuda, and Joseph Matt believed Burton shot at them and feared for their and other officers' safety. Some mustered law enforcement officers heard Craig Burtonrepeatedly yell: "'do it,"' "'justdo it,"' or "'come do it."' CP at 122, 124, 127-29. Burton fired more shots into the air to empty his magazine. He never intended to physically harmpolice officers and shot every round away from the officers. Burtonjudgedthat he frightened none of the officers. Officer Jake Jensenheard a total ofeleven shots and feared being shot. 6No. 34230-1-111 State v. Burton

Jensen knew the shots originated from Burton'sbackyard, but could not identify the location ofthe shooter. Craig Burtonnext dropped the ammunition magazine and engaged his gun's safety. Officers Potter, Wheeler, Benesch, and Mattheard, based ontheirtraining, a soundthat resembled the reloading ofa gunratherthan engaging ofa safety. Craig Burton opened the backyard gate and, with his pistol pointedto the ground, stepped into the alley. He never aimed his weapon at law enforcement officers. He assumed officers would commandhim to drop his weapon, and, ifhe disobeyed, one or

more would shoot him. One ofthe officers standing in the south barked for Craig Burtonto "'showme yourhands, drop the gun, drop the gun."' CP at 129. WhenBurton defied the command, the officer shotBurton once in the abdomen. Officer Christopher Beneschhurriedto assist Burton, and an ambulance latertransported Burtonto the hospital. Atthe hospital, Officer Dale Wells spoke with Burton. Burtontold OfficerWells thathe wishedpolice officers had killed him and he was glad he injured no one. Afterthe transport ofCraig Burtonto the hospital, investigating SpokanePolice Department Detectives Michael Drapeau and James Dresbackreviewed CraigBurton's residenceproperty. The officers found multiple bullet casings in the backyard ofand alley behind Burton'sresidence. They did not locate any bulletholes or strikes. Although many ofBurton's neighbors heardthe gunfire, none found damage to their 7No. 34230-1-III State v. Burton property. At trial, Detective Drapeau testified that, from theposition where he located the bullet casings, Burton could view officers to the north ofhim but not officers to the south ofhim. Again, OfficerJake Jensen stood to the south ofBurton. Law enforcementjailed Craig Burton after Burton's hospital recovery. While resting injail, Burton discontinued taking Paxil, and the fateful suicidal ruminations ceased. PROCEDURE The State ofWashington charged Craig Burtonwiththree counts offirst degree assault under RCW 9A.36.011. To supportthe three charges, the State alleged Burton, with intent to inflict greatbodily harm, intentionally assaulted Officers AdamPotter, Christopher Benesch, and Jake Jensen while on duty. We do not know why the State chose and only chose Officers Potter, Benesch, and Jensen as the victims. The prosecution holds discretion in charging decisions. We complimentthe State for exercising its discretion in limitingthe charges to no more than three officers. The State accompanied each assault charge with a firearm sentence enhancement. Burton denied the charges and opted for a benchtrial. The State requestedthe opportunity to alternatively convictBurton on the lesser included offense ofsecond degree assault. Craig Burton never forwarded diminished capacity as a defense. The trial courtheard testimony from twenty-nine witnesses, including Craig Burton and Burton's expert witness, Dr. Matthew Layton. Craig Burton stated, during 8No. 34230-1-111 State v. Burton

his trial testimony: Q. Now, when you fired the shots to get the police to backup, was your intention to scare them away from the scene orwhat did youthink their thoughtprocess was? A. Honestly, I didn'tthinkthey wouldhave a thoughtprocess. I thoughtthey would do what I would do, which is revertbackto your training and react according to the situation. The situation atthe time dictated thatthey retreatto cover and determine where the gunfire is coming from and in what direction that gunfire is going. And after I could see that they had lefttheir first location and started moving further north in the alley, I sat for a minute andthat's when I was like-Iwaspreparingto go out into the alleyway but before I did that, I dida few quickpeeks to the south to see if there was anybody locatedthere. And I sawthe officer's position behindthis car (indicating) and I knew thatthe other officers were on the east side ofthe alley while these officers were onthe west side ofthe alley, so I knew that when I stepped out into the alleyway I neededto remain-I needed to hug the west-orthe east side ofthe alley sothat gunfire didn't come anywhere near here and I knew they had cordoned off the block so there shouldbe no traffic eitherway. Report ofProceedings (RP) at 678-79 (emphasis added). Burton further declared: Q. Youknew you were in trouble, Mr. Burton, correct? A. I can't explain my thoughtprocess. Everything that I did in the situation, from the time I saw the police, from thattime forward, everything I did, the way I did it makes sense. The fact that I did it, doesn't make sense. Everything I did priorto that doesn't make sense to me. The fact that Karen [Christopher] reached for the gun and I didn'thand herthe gun doesn't make sense to me. The fact that I wouldtumBecca away doesn't make sense to me. Under a clear mind with a clear head, not in some druginduced whateveryou wantto call it, I would-none ofthis wouldhave happened. Q. Okay. So you're sittingthere. You're confused. You're-you know you're in trouble but you never call 911 for help, correct? A. Correct. Q. Andwhen you see the officers, you assume that youhave no opportunity to talkto them. Did you actually ask them for help? A. It's like a trigger went offin my head like I was no longer in a 9No. 34230-1-III State v. Burton

civilian setting. I was-this was now a tactical environment. Q. Butyou've neverbeen diagnosedwithposttraumatic stress disorder, have you? A. Thathas nothingto do withreverting backto-- Q. Have you? A. No. RP at 705-06. On cross-examination, Craig Burton answered: A. Yes, sir. Q. All right. Now, youtestifiedthatthe officers responded perfectly according to whatyou predictedthey would? A. Yes. Q. All right. That didn't scare you? A. No. That's what I wanted. I wanted to die. Why would I be scared to get shot? Q. Okay. Butyou didn't decide that you wanted to die immediately, correct? A. No, not until I saw that formation I felt like they made my mind up for me, and that's when the trigger kind ofwent off, and I no longerfelt like I wasjust sitting in my backyard. It was now a tactical environment. Q. Okay. A. I felt like I was-I was the defender from aggressors, in a sense. My sole purpose from thatpoint forward, like I said, I felt like my mind was made up for me. I felt like they made my mind up for me. I was going to get shot. Atthatpoint it was my responsibility to make surethat that happened in the safest way possible and I know that doesn't make a lot of sense. Like I said, the way I did things makes senseto me. The fact that I did them makes absolutely no sense. I don't knowwhy I didwhat I did, but I do know that the actions I took were specifically taken to ensurethat I was killed in the safest fashion possible. Q. Were you scared? A. No. I was scared for the people I cared about. I was scared about my neighbors. I was scaredthat ifthe policehad shot at me where I was standing a bullet couldhave gone somewhere andhurt somebody. I was scared for thepeople around me but I was not scared for my own 10No. 34230-1-III State v. Burton

person. Q. You intended to be killed, correct? A. Yes. Q. All you had to do then, based upon your ownknowledge and training, was to walk out into that alley with a pistol and tum and they would have shotyou, correct? A. Again, I would not point my weapon at apolice officer so that was not an option. Q. Thatwasn'tthe question, Mr. Burton. The question was youknewA. Yes. Q. -ifyou did that, they would shootyou, correct? A. Yes, ifI did that I most likely would have been shot. Q. Mr. Burton, you testified that you fired the shots to force themto retreat, correct? A. Right, to move them back. RP at 713, 715-16. Dr. Matthew Layton, a board certifiedpsychiatristwith a doctorate in pharmacology, testified regarding thepossible impact ofBurton's medication on Burton's actions. Layton noted that Paxil contains a black boxwarning that advises that the medication may cause suicidal ideation in some patients. The warning recommends that apatient immediately report to a physician ifthe patient experiences suicidal thoughts. A black box warning appears on the prescriptionpackage insert and acquires its name from the United States Food and Drug Administration (FDA) rule that demands

a black border around the text. The blackboxwarning constitutes the strongest warning that the FDArequires and signifies that medical studies indicate thatthe drug carries a 11No. 34230-1-III State v. Burton significantrisk ofserious or even life-threatening adverse effects. Dr. MatthewLaytontestified that Craig Burton's suicide attempts were consistent with his use ofPaxil. Layton emphasized thatBurton's suicidal ideation ceased when he ended taking Paxil injail. Dr. Layton declared that a patient should not consume alcohol while taking Paxil and that apatient using the drug may display disinhibition, impulsivity, weight loss, insomnia, and paranoia. The trial court convicted Craig Burton ofthree counts ofsecond degree assault under RCW 9A.36.021 and found that Burtonperformed each count while armed with a firearm. In the court's extensive findings and conclusions, it wrote: 90. Officer Jensen testified the situation was extremely dangerous and highly dynamic. 

### It was dark and the backyardwhere the unknown male was located was enclosed by a vinyl privacy fence. OfficerJensen heard three shots and then additional shots followed. He heard a voice yell "come do it." 91. Officer Jensen testified he had his ballistic shield, service revolver, and non lethal beanbag rifle with him. He heard more shots fired for an eventual total of 11 shots. 92. OfficerJensen testified he was scared ofbeing shot and that officers could not specifically identify the threat and where it was coming from. 93. Officer Jensen testified he could not tell where the shots fired were directed or aimed

... only that he could tell the shots were coming from the backyard of5527 North Ash. CP at 129 (alteration in original). The trial court entered the following conclusions of law: 28. Here, Officers Potter, Benesch, and Jensen all testified that they were fearful ofbeing shot by the Defendant and could nottell where the 12No. 34230-1-111 State v. Burton

Defendantwas and whathe may have been specifically shooting at. However, the focus, pursuantto WPIC 35.50 is not solely directed towards the question ofwhether officers were in apprehension or fear ofbodily injury. (All testified they clearly were.) The analysis must also inquire as to whetherthe actor (in this case, Mr. Craig Burton) intended to create in the named law enforcement officers apprehension and fear ofbodily injury. 29. Here, the facts clearly demonstrate beyond a reasonable doubt that, while the Defendant, Mr. CraigBurtondid not intend to inflict great bodily harm on law enforcement officers, he did in fact intend to create in those same law enforcement officers reasonable apprehension and imminent fear ofbodily injury. 30. Indeed, Mr. Burton's owntestimony was illustrative regarding his intentions onMay 6, 2015. While Mr. Burton did not intend to inflict great bodily injury upon the officers, he nevertheless planned and carried out a confrontation with law enforcement that was clearly designed to impose upon those law enforcement officers apprehension and fear, which would cause them to then shoot Mr. Burton and kill him. 31. 

### It goes without saying, even in a highly trained and skilled law enforcement officer or member ofthe military, an unknown individual firing 11 shots in the dark, in close proximity to yourperson, is goingto cause apprehension and fear. Mr. Burton knew and understood that by creating apprehension and fear in officers, they wouldthen hopefully fall backupontheirtraining and experience and shoot him. Indeed, Mr. Burton testified that his plan "went offto a T." WhetherMr. Burton was aware of it or not, his intention in imposing apprehension and imminent fear of bodily injury upon law enforcement officers was an action thatdirectly constitutes assault in the second degree. CP at 143-44. Craig Burton sought reconsideration ofthe third count charginghim ofassault of OfficerJake Jensen. He argued that, since he never saw orknew ofOfficerJensen's presence, he lacked the requisite intent for assault. The trial court denied the motion for reconsideration.

13No. 34230-1-III State v. Burton Craig Burtonrequested an exceptional sentencebased onRCW 9.94A.535(1)(e), which applies when the defendant suffers from an impaired capacity to appreciate the wrongfulness ofhis conduct orto conformhis conductto lawful requirements. Burton asked that the exceptional sentence include zero days onthe base sentence for assault and

no more than two months for each firearm enhancement. The trial court sentenced Craig Burton at the bottom ofthe standardrange for a first-time offenderby ordering concurrent fifteen months' confinement on each assault. In addition, the trial court imposed the mandatory thirty-six-month firearm enhancement for each count, with each sentencerunning consecutively. Intotal, the trial court sentenced CraigBurtonto 123 months ofprisontime and eighteen months ofcommunity custody. During sentencing the trial court sympathetically and lamentedlyremarked: I don'tthink going toprison is goingto rehabilitate Mr. Burton. Rehabilitate him so he won't do what? He doesn't needrehabilitation. I don'tthink it's going to protect society because I'mnot satisfiedthat society is necessarily atrisk with Mr. Burton inthe community. Ifhe's back in the community, well, puttingthat aside, itjust strikes the Court when I'm in a situation like this that it's a significantwaste ofthe taxpayer's resources for a gentleman like Mr. Burtonto be incarcerated for years. Butuntil the legislature sees fit to granttojudges discretionto craft an appropriate sentence, the Court's hands are tied. Now, here Mr. Burtonhas requested that the Courtprovide for an exceptional sentence downward. What isproblematic with that request is that the mitigating factors thatMr. Burton references, allwhich the Court frankly absolutely agrees with, butnevertheless they are already contemplatedwithin the [SentencingReformAct(SRA)}. And sentencing judges, as counsel may be aware, and as I discovered again in my research independently, have consistently beenreversed inthis state whenthey 14No. 34230-1-III State v. Burton impose an exceptional sentence downward, or frankly it could be upward, but here, downward for factors that are already included in the standard sentencing range. Some ofthe arguments consistently advanced that you read about in case law in this state are deviate downward for lack ofcriminal history or low risk to reoffend orprotection ofthe public is not necessary or a defendant's clear concern for others that was displayed throughout the trial, all clearmitigating factors. Butthese are all things applicable to Mr. Burton, which are already inclusive in the SRA, and there are a number of cases that havepointedthis out over and over in the [State v. Pasal, 108 Wn.2d 125, 736 P.2d 1065 (1987)] case, [State v. Fowler, 145 Wn.2d 400, 38 P.3d 335 (2002)] case, [State v. Freitag, 127 Wn.2d 141, 896 P.2d 1254 1995)] case are examples ofwhat happens when a court sidelines the mitigating factors already built into the SRA and decides to deviate downwards, frankly because they're looking for an opportunity to accomplish an end result that they think fits. I'm confidentI don't have any reasonable basis that's been offered to mitigate below the standardrange. Ijustdon'thave that in front ofme. And doing so, I am confident would be absolute reversible errorby the Court. So putting that aside for a minute, turning to the issue ofthe firearm enhancement, I've said this before, I'm going to say it again, I am very saddened by this situation that Mr. Burton finds himselfin and I return to my earlier comments that not only am I saddened, I'm incredibly frustrated by a mandatory firearm enhancement in the State ofWashington that Ihave no ability to deviate from. RP at 900, 902-03 (emphasis added). LAWAND ANALYSIS Convictions Craig Burtonrequests this court reverse his three convictions, and, ifnot, reduce his sentence. In sum, he argues that the State failed to prove any ofthe three counts of second degree assault because the State failed to show an intentto inflict fear or apprehension in any law enforcement officer, an element ofsecond degree assault. He 15No. 34230-1-111 State v. Burton

further contends that, atthe least, the State's evidence unsuccessfully showed any intent to harm OfficerJake Jensen, one ofthe officers standing in the south ofthe alley. Ifwe do not accepthis argument that the State failed to sustain all three charges, he seeks a

new trial on the basis ofineffective assistance ofcounsel for failure to present a diminished capacity defense. We later outline his assignments oferrorregarding his sentence. Burton's numerous, but legitimate, arguments prolong our opinion. Issue 1: Whether the Statepresentedsufficientevidence to convict CraigBurton of any of the three chargesfor seconddegree assault? Answer 1: Yes. Craig Burton contends the trial court erred in convicting him ofsecond degree assault because the State failed to prove he had the specific intent to create a fear of bodily injury in any ofthe victims when he harmlessly fired his weapon. We agree that Burton did not physically injure anyone, butwe disagree thathe intended no fear of harm. We recite familiar principles ofappellate review ofevidence in a criminal prosecution. The State mustprove every element ofthe crime chargedbeyond a reasonable doubt. CONST. art. I, § 3; U.S. CONST. amend. 

### XIV; In re Winship, 397 U.S. 358,364, 90 S. Ct. 1068, 25 L. Ed. 2d 368 (1970). Evidence suffices ifa rational trier of fact could find each element ofthe crime beyond a reasonable doubt. State v. Green, 94 Wn.2d 216, 221-22, 616 P.2d 628 (1980). Both direct and indirect evidence may support 16No. 34230-1-111 State v. Burton

averdict. State v. Brooks, 45 Wn. App. 824, 826, 727 P.2d 988 (1986). This court draws all reasonable inferences in favor ofthe State. State v. Partin, 88 Wn.2d 899, 906-07, 567 P.2d 1136 (1977). Nevertheless, inferences based on circumstantial evidence must be reasonable and cannotbe based on speculation. State v. Vasquez, 178 Wn.2d 1, 16, 309 P.3d 318 (2013). Only the trier offact weighs the evidence andjudgesthe credibility ofwitnesses. State v. Carver, 113 Wn.2d 591, 604, 781 P.2d 1308, 789 P.2d 306 (1990). RCW 9A.36.021 defines the crime ofsecond degree assault. The statute reads, in relevant part:

. (1) A person is guilty ofassault in the second degree ifhe or she, under circumstances not amounting to assault in the first degree: (a) Intentionally assaults another and thereby recklessly inflicts substantial bodily harm; or (c) Assaults another with a deadly weapon; or (e) With intent to commit a felony, assaults another. Craig Burton's shots caused no one bodily harm. The State relies solely on subsection (c) since Burton employed a deadly weapon. None ofthe assault statutes define "assault." Thus, courts resort to the common law definition ofthe statutoryterm. State v. Byrd, 125 Wn.2d 707, 712, 887 P.2d 396 (1995). Washington recognizes three definitions ofassault: (1) an unlawful touching (actual battery), (2) an attempt with unlawful force to inflictbodily injury upon another, tending but failing to accomplish it (attempted battery), and (3) putting another in

17No. 34230-1-111 State v. Burton apprehension ofharm. State v. Elmi, 166 Wn.2d 209, 215, 207 P.3d 439 (2009). The State only relies onthe third definition. Assault by an attempt to cause fear and apprehension ofinjury requires proofthat, with intent to cause a reasonable apprehension ofimmediate bodily harm, though notto inflict such harm, the accused performs some act that causes such apprehension. State v. Byrd, 125 Wn.2d at 713. The accused must actually intend to cause apprehension orto

cause bodily harm. State v. Byrd, 125 Wn.2d at 713. Thus, specific intent is an essential element ofassault in the second degree. State v. Byrd, 125 Wn.2d at 713. Specific intent

means intent to produce a specific result, as opposed to intenttoperformthephysical act thatproduces the result. State v. Elmi, 166 Wn.2d at 215. Therefore, the State neededto prove that Craig Burton intended to cause reasonable fear and apprehension in each ofthe three alleged victims, Officers AdamPotter, Christopher Benesch, and Jake Jensen. We

now address the three victims in general and later focus on the unique circumstances involving OfficerJensen. Craig Burton asserts thatthe evidence failed to showhe acted with the specific intent to cause officers to reasonably fear injury. He maintains thatthe evidence showed he fired a volley ofshots to encourage officers to follow theirtraining and retreat. By encouraging theirretreat, he could better orchestrate his suicide attempt without endangering anyone else. Thenhe fired his remaining bullets to unload his pistol.

18No. 34230-1-III State v. Burton

The natural extension ofCraig Burton's contention defeats his argument. Law enforcement officers receive training to respond with deadly force when they or some third person fear death or grievous injury. IfBurton wantedto commit suicide by cop, he needed to engender fear and apprehension ofharm in the officers. Therefore, we hold that the trial court, based on substantial evidence, correctly concluded that Burtonknew and understood that, by creating apprehension and fear in officers, they would fall back

on their training and experience and shoot him. This finding supports the conclusion that Burton specifically intendedto create fear and apprehension and committedthe crime of second degree assault. To support his argumentthat his conduct did not establish second degree assault, Craig Burton compares his actions to the unlawful display ofa gun and the harmless discharge ofa gun in a public place, both ofwhich are only misdemeanor offenses. Both examples, however, fall short ofan apt analogy. Burton did not merely display a gun. He fired shots from the cover ofdark without warningpolice thatthey were nothis targets. Many officers surmised that Burton shot at them, and the trial courtjudiciously found that Burton wished the officers to fear injury. Issue 2: Whether the Statepresentedsufficientevidence to convict CraigBurton of assaulting OfficerJake Jensen? Answer2: Yes, under the concept of transferred intent.

19No. 34230-1-III State v. Burton Craig Burtonpresented testimony that he did not know any officers approached from the south in the alleyway and that OfficerJake Jensen, one ofthe three alleged victims, approached from the south. Craig Burton therefore argues that insufficient evidence supported his alleged assault on Officer Jake Jensen because he knew not ofthe presence ofJensen when he fired his pistol. According to Burton, the State could not establish specific intentto cause fear in Jensen. In response, the State argues both the facts and the law. The State first claims that some evidence supported a finding that Burton knew ofofficers in the south. We agree with Craig Burton that the undisputed evidence established that Burton knew not ofOfficer Jake Jensen'spresence when he intended to cause fear in officers to the north. An examination ofthe trial testimony confirms Burton's factual contention. Burtontestified that, as he prepared to enter the alleyway, he looked to the south and saw

no one. Detective Drapeau collaborated Burton's account. Detective Drapeautestified that, from the position where he located the bullet casings, Burton could see officers to the north, but not officers to the south. In his testimony, Burton acknowledged knowing that police cordoned offthe block, butthis testimony only demonstrated his general knowledge ofofficers in the area and not specific knowledge ofany officerto the south. Even ifweview the evidence in the light most favorable to the State, no evidence supports a finding that Burton knew ofthe presence ofOfficer Jensen before or during the discharge ofhis firearm. The trial court never found that Burton knew ofthe 20

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presence ofJensen. The absence ofa finding on a material fact in effect is a finding that

no such fact exists. McCutcheon v. Brownfield, 2 Wn. App. 348,356,467 P.2d 868 (1970). The State also contends that the intent to create fear in the officers to the north was sufficientto sustain a conviction for all other officers at the scene, including those to the south. Burton denies that transferred intent applies to second degree assault based onthe creation ofan apprehension or fear ofbodily injury. We agree with the State. To obtain convictions for second degree assault, the State was required to prove Craig Burton committed assault by apprehension with a deadly weapon. Assaultby apprehension has two elements: (1) intent to create apprehension and fear ofbodily injury in anotherperson, and (2) the creation ofreasonable apprehension and imminent fear in fact in a specificperson. State v. Toscano, 166 Wn. App. 546,551,271 P.3d 912 (2012). The defendant's intent is relevant to the first element, but notthe second. Therefore, if the defendant intends to create a fear ofapprehension ofharm in someone, anyone who actually suffers a reasonable fear ofharm by virtue ofthe defendant's actions qualifies as

a victim. The concept oftransferred intent inheres in the very elements ofassault by apprehension. Once the State establishes the defendant's specific intentto create an apprehension and fear ofbodily injury, he or she may be prosecuted for the psychological harm caused to any victims, intended or not. Although, in ourreported decisions, the 21 

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State has often limited assault by apprehension prosecutions to intended victims, it need not do so. Craig Burton advances State v. Abuan, 161 Wn. App. 135, 257 P.3d 1 (2011), to support his contention that the State may not establish specific intent by transferred intent in aprosecution for second degree assault. We find State v. Abuanproblematic for many

reasons. In State v. Abuan, the State alleged Kevin Abuan fired multiple shots at an occupied garage while passing in a vehicle. Three individuals were inthe garage with the garage door open and one person, Fomai Leoso, inside the adjoining house. The State charged Abuan with, among other crimes, second degree assault ofone ofthe individuals in the garage and ofLeoso. Thejury convicted Abuan on both assault charges. On appeal, the State advanced the theory oftransferred intent from aperson in the garage to Leoso. This courtreversed Abuan's conviction for the assault ofLeoso. We decline to follow State v. Abuan for several reasons. First, in analyzing the issue oftransferred intent for a second degree assault, theAbuan court observed that the State never offered an instruction ontransferred intent. Therefore, the court observed under the law ofthe case that "there is no room for a transferred intent analysis without a transferred intentjury instruction." 161 Wn. App. at 156. Although theAbuan court later addressed transferred intent, the court should have declined to entertain the State's theory, and we could consider any analysis as dicta. Second, the State neverpresented

.**~** 22No. 34230-1-III State v. Burton testimony from Fomai Leoso that Leoso feared harm from the shots fired by Abuan. The Statepresented testimony thatJake Jensen feared injury as a result ofCraig Burton's discharges. Third, although theAbuan court did not wish to extend transferred intent to second degree assault, the court also held that Leoso, because ofhis position inside the house, "couldnot have been placed in reasonable apprehension and imminent fear of bodily injury." 161 Wn. App. at 154. Craig Burton's trial court, based on substantial evidence, found that Burton's shots placed OfficerJensen in reasonable apprehension and imminent fear ofbodily injury. TheAbuan court reasonably worried about an accused being charged with unlimited counts ofassault whenthe accused fires a shot intended to scare only one victim, but the shot caused apprehension in a throng ofbystanders or gaggle ofneighbors. We trust the requirement that a victim's apprehension ofharm be reasonable, coupled with a fair exercise ofprosecutorial discretion, will prevent such an outcome. Issue 3: Whether CraigBurton received ineffective assistance of counselwhen his trial counseldidnotpresenta diminished capacitydefense? Answer3: No. Since we conclude sufficient evidence supports Craig Burton'sthree convictions,

we must address whetherBurton should receive a newtrial. Burton contends the evidence and law supported a diminished capacity defense and his counsel performed deficiently by failing to raise the defense. He further asserts thatthejudgewouldhave 23No. 34230-1-III State v. Burton acquitted him ifhis counsel raised the defense especially because his specific intent surfaced as the central issue in the prosecution. The State responds that Burton's trial counsel performed adequately because no evidence supported the theory that Burton's suicidality and medication affected his ability to form the intent necessary to commit second degree assault. We agree with the State. The Sixth Amendmentto the United States Constitution guarantees defendants the right to legal counsel in criminal trials. Like the federal constitution, Washington's Constitution also grants an accused, in a criminal prosecution, the rightto appearby counsel. CONST. art. I, 

### § 22. Washington's protections are coextensive with their federal counterpart. To meaningfullyprotect an accused's right to counsel, the United States Supreme Court held an accused is entitledto "effective assistance ofcounsel." Stricklandv. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). An accused is entitled to more than an attorney sitting next to him at counsel table. UnderStrickland, courts apply a two-pronged test: whether (1) counsel'sperformance failed to meet a standard ofreasonableness, and (2) actual prejudice resulted from counsel's failures. Strickland, 466 U.S. at 690-92. Toprevail on his orher claim, a defendantmust satisfy bothprongs ofthe ineffective assistance ofcounsel test. State v. Hendrickson, 129 Wn.2d 61, 78, 917 P.2d 563 (1996). Ifa defendant fails to establish oneprong ofthe test,

24 

## f 

## I 

# INo. 34230-1-111 State v. Burton

this court need not address the remaining prong. State v. Hendrickson, 129 Wn.2d at 78. We address only the performanceprong. To satisfy the first prong, the defendant must show that, after considering all the circumstances, counsel'sperformance fell below an objective standard ofreasonableness. State v. McFarland, 127 Wn.2d 322, 334-35, 899 P.2d 1251 (1995). The burden is onthe defendant to show deficient performance. State v. Grier, 171 Wn.2d 17, 33, 246 P.3d 1260 (2011). This court starts with the strong presumption that counsel's representation

was effective. State v. Studd, 137 Wn.2d 533,551,973 P.2d 1049 (1999). Washington does notpunish defendants with a diminished capacity thatprecludes the formation ofthe crime's identified intent. State v. Eaton, 168 Wn.2d 476, 482 n.2, 229 P.3d 704 (2010). An accused may utilize diminished capacity when substantial evidence reasonably connects the defendant's alleged mental condition withthe inability to possess the required level ofculpability to committhe crime charged. State v. Cienfuegos, 144 Wn.2d 222,227, 25 P.3d 1011 (2001). The trier offact may consider evidence ofa mental illness or disorder when determining whetherthe defendant had the capacity to form specific intent. State v. Cienfuegos, 144 Wn.2d at 227. No case directly addresses ineffective assistance ofcounsel for failure to raise a diminished capacity defense during a bench trial. Twojury cases focus, in part, on counsel's failure to request a diminished capacityjury instruction. State v. Cienfuegos, 144 Wn.2d 222 (2001); State v. Thomas, 109 Wn.2d 222, 228, 743 P.2d 816 (1987). 25No. 34230-1-111 State v. Burton

Under this and other settings, the question ofineffective assistance ofcounsel does not lend itselfto per se rules, butrequires a case by case analysis. State v. Cienfuegos, 144 Wn.2d at 229. The failure to request a diminished capacity instruction is not ineffective assistance ofcounsel per se. State v. Cienfuegos, 144 Wn.2d at 229. As we have already discussed, the State, to prove second degree assault, needed to show that Craig Burton, by use ofa deadly weapon, intendedto cause fear and apprehension ofimmediate bodily harm. We holdthat defense counsel did notperform inadequately because the overwhelming evidence, ifnot undisputed evidence, established that Burton intended to cause fear in the law enforcement officers. Although Burton suffered from suicidal ideation and perhaps intoxication, no expert opined that either condition interfered in his ability to fonn an intentto cause fear in the police officers. Therefore, the evidence did not support a diminished capacity defense. Craig Burton testified that, ifhe possessed a clearmind and hadnot entered a drug induced state ofmind, the shootings would not have transpired. Nevertheless, this argument holds no relevance as to whether he could form the intentto frighten others. Burton also testified thathe wished to commit suicide and the steps he tookadvancedthis wish. We might debate whether suicide is an irrational act, but, in light ofBurton's goal, he rationally planned to trigger his death byplanting fear in the minds oflaw enforcement officers. Burton confirmed that he intended for the officers to retreat. No evidence supported a finding that he could not form this intent. Dr. MatthewLayton 

### 26No. 34230-1-III State v. Burton

testified that Craig Burton's suicide attempts were consistentwith use ofPaxil. Nevertheless, Layton nevertestified that the medication or alcohol prevented Burton from forming the intent to affect apprehension ofimmediate bodily harm in the minds of the police officers. Craig Burton advances State v. Thomas, in whichthe Washington Supreme Court found trial counsel performed deficiently by failing to request a diminished capacity instruction when the defendant committed felony flight while intoxicated. Nevertheless, evidence supported extreme intoxication and possible blackouts. Thus, thejury could have concluded that the extreme intoxication negated the required wantonness or willfulness mental state for the crime. The lack ofa diminished capacity instruction allowed the prosecutorto argue that Thomas' drunkenness caused hermental state and herreckless driving. In response, defense counsel argued that Thomas' drunkenness negated any guilty mental state. Nevertheless, counsel neverproposed an instruction supporting the defense. We perceive Thomas as inapposite because ofthe differences in the evidence supporting diminished capacity. Defense counsel's withholding ofa diminished capacity defense strategically benefited Craig Burton in addition to being reasonable. The State charged Burtonwith first degree assault. By introducing evidence thatBurton carefullyplannednotto harm law enforcement officers, Burton and his counsel successfully defeated the first degree assault charges. By employing this effective tactic, counsel eliminatedthe possibility of 27No. 34230-1-111 State v. Burton

a diminished capacity defense. Careful planning and diminished capacity do not coexist. Sentencing We move to the assignments oferrorraised by Craig Burton as to his sentence. First, Burtonrequests resentencing because the firearm enhancements purportedly, as applied to him, violate his equal protection rights. Second, Burton contends the trial court erred in denying his request for an exceptional sentence because the trial court believed it lacked authority to impose an exceptional sentence. Third, Burton asks this courtto find his sentence often years to be unconstitutionally cruel punishment. Issue 4: Should this courtaddress the merits of CraigBurton's "as applied" equal protection challenge to the imposition of firearm enhancements to his sentence when he omittedthe challenge before the trial court? Answer4: No. The trial court added a firearm enhancementto each ofCraig Burton's convictions for second degree assault. Burton contends the enhancements violated his constitutional rights to equal protection. RCW 9.94A.533(3)(f), which creates the enhancements, declares: · The firearm enhancements in this section shall apply to all felony crimes except the following: Possession ofa machine gun, possessing a stolen firearm, drive-by shooting, theft ofa firearm, unlawful possession of a firearm in the first and second degree, and use ofa machine gun in a felony. (Emphasis added.) Craig Burton complains that RCW 9.94A.533(3)(f) exempts drive-by 

### 28No. 34230-1-III State v. Burton shootings butnot second degree assaults despite his conduct ofshooting against trees creating less ofa danger and the crime ofsecond degree assault by creating fear in another being less morally culpable. Burton claims no legitimate reason supports the legislature's exempting drive-by shooting from firearm enhancements butnot his second degree assault convictions. The State observes that Craig Burton omitted any equal protection argument before the trial court. The State asks that we therefore ignore the merits ofBurton's equal protection argument. We agree and hold that Burton did notpreserve the claimed

error for appeal and the assigned error does not fit the manifest constitutional error exception. RAP 2.5(a) formalizes a fundamental principle ofappellate review. The first sentence ofthe rule reads: Errors Raised for First Time on Review. The appellate court may refuse to review any claim oferrorwhich was notraised in the trial court. No procedural principle is more familiar than that a constitutional right, or a right ofany other sort, may be forfeited by the failure to timely assert the right before a tribunal havingjurisdiction to determine it. UnitedStates v. Olano, 507 U.S. 725, 731, 113 S. Ct. 1770, 123 L. Ed. 2d 508 (1993). The prerequisite affords the trial court an opportunity to rule correctly on an issue before it can be presented on appeal. State v. Strine, 176 Wn.2d 742, 749, 293 P.3d 1177 (2013).

29 

# fNo. 34230-1-III State v. Burton

RAP 2.5(a) contains a number ofexceptions. RAP 2.5(a) allows an appellant to raise for the first time "manifest error affecting a constitutional right." Constitutional

errors are treated specially under RAP 2.5(a) because they often result in serious injustice and may adversely affect public perceptions ofthe fairness and integrity of judicial proceedings. State v. Scott, 110 Wn.2d 682, 686-87, 757 P.2d 492 (1998). Nevertheless, permitting everypossible constitutional errorto be raised for the first time on appeal undermines the trial process, generates unnecessary appeals, creates undesirable retrials, and wastes resources. State v. Lynn, 67 Wn. App. 339,344,835 P.2d 251 (1992). Craig Burton's equal protection argument implicates a constitutional right. Thus, we mustjudge ifthe argument addresses manifest error. Washington courts and even decisions internally have announced differing formulations for "manifest error." For purposes ofBurton's appeal, we apply the rule thatthe assigned errormusttruly be one ofconstitutional magnitude. State v. Scott, 110 Wn.2d at 688. The constitutional violation must patently appear. To determine whether Craig Burton's assignment oferror implicates a manifest constitutional error we must briefly peruse the merits ofthe assignment. Washington Constitution article I, section 12, and the FourteenthAmendmentto the United States Constitution guarantee that persons similarly situated with respect to the legitimate purpose ofthe law mustreceive like treatment. Equal protection does not require that the government treat all persons identically, butthat a distinction made in law bear some 30 

# I

fNo. 34230-1-III State v. Burton

relevance to the purpose behind the classification. In re Detention of Dydasco, 135 Wn.2d 943,951,959P.2d 1111 (1998). We compare the elements ofthe respective crimes ofsecond degree assault and drive-by shooting. To repeat, Craig Burton's crime involved creating reasonable fear and apprehension ofimmediate bodily harm in another through use ofa deadly weapon. RCW 9A.36.021; State v. Byrd, 125 Wn.2d at 712 (1995). The drive-by shooting statute, RCW 9A.36.045(1), declares: A person is guilty ofdrive-by shooting when he or she recklessly discharges a firearm as defined in RCW 9.41.010 in a mannerwhich creates a substantial riskof death orseriousphysical injuryto another person and the discharge is either from a motor vehicle or from the immediate area ofa motor vehicle that was used to transport the shooter or the firearm, orboth, to the scene ofthe discharge. (Emphasis added.) The elements ofthe latter crime include (1) discharging a firearm, (2) from a motorvehicle or the immediate area ofa motor vehicle thattransported the discharger, and (3) creating a substantial risk ofdeath or serious injury to another. The crime ofdrive-by shooting necessarily requires use ofa firearm, whereas assault does not. All crimes exempted from the firearm enhancement entail use ofa firearm, whichjustifies the exclusion ofthe offenses enumerated in RCW 9.94A.533(3). The firearm enhancement statute would redundantly impose a firearm enhancement on a crime that necessarily includes the use ofa firearm. Thepurpose ofthe initiative was to punish armed offenders more harshly to discourage the use offirearms. State v. Berrier,

31No. 34230-1-111 State v. Burton

110 Wn. App. 639, 649-50, 41 P.3d 1198 (2002). The crime, under which the trial court convicted Craig Burton, required a deadly weapon, but not a firearm. Craig Burton cites no authority to support a conclusion that distinguishing between second degree assault when use ofa gun creates fear and apprehension in others and a drive-by shooting lacks any rational basis. The lack ofauthority alone bolsters a conclusion that Burton's assignment does not rise to manifest constitutional error. Craig Burton advances State v. Berrier, 110 Wn. App. 639, which also involved an equal protection challenge similarto RCW 9.94A.533(3). Nevertheless, the trial court convicted Shannon Berrier ofpossession ofa short-barreled shotgun. This court held that

none ofthe legislature's purposes were furthered by differentiating between shortbarreled shotgunpossessors and machine gun possessors. Possession ofa short-barreled shotgun and possession ofa machine gun are both criminalized underthe same statute, RCW 9.41.190(1). Again, the statutory elements ofsecond degree assault do not require possession ofa firearm. Issue 5: Whether the trial courthadauthority to grantan exceptionalsentence by modifying the length of thefirearm enhancements? Answer 5: No. Craig Burton contends the trial court erred in denying his request for an exceptional sentence for two reasons. First, he contends the trial court erred when not allowing areduction in the firearm enhancements. Second, the trial court erred when 32No. 34230-1-III State v. Burton concluding it lacked authority to impose an exceptional sentence with regard to the portion ofthe sentence attributedto the second degree assault convictions. We address the two assignments oferror in such order. We observe thatthe firearm enhancements contributed disproportionately to Burton's lengthy sentence. Thetdal court's sentence imposed nine years for the firearm enhancements. The sentence imposed one year and three months for the second degree assault convictions. The enhancements nearly subsume the sentence. Craig Burtonrequestedthe trial court grant an exceptional sentence so thathe served no more than two months on each ofhis three firearm enhancements. The court denied the request onthe ground that it lacked discretion to modify the confinement imposed from a firearm enhancement. Burton assigns errorto the trial court's ruling. The State responds that the Washington Supreme Courtpreviously addressed this issue and rejected Burton's argument. We agree withthe State. Underthe firearm enhancements statute, RCW 9.94A.533, a defendantreceives three years ofadditional incarceration for each qualifying conviction. The statute declares: (3) The following additional times shall be added to the standard sentence range for felony crimes committed afterJuly 23, 1995, ifthe offender or an accomplice was armed with a firearm as defined in RCW 9.41.0IO and the offender is being sentenced for one ofthe crimes listed in this subsection as eligible for any firearm enhancements based onthe classification ofthe completed felony crime. Ifthe offenderis being sentenced for more than one offense, the firearm enhancement or 33 

# [No. 34230-1-III State v. Burton

enhancements must be added to the total period ofconfinement for all offenses, regardless ofwhich underlying offense is subject to a firearm enhancement.

... (b) Three years for any felony defined under any law as a class B felony or with a statutory maximum sentence often years, orboth, and not covered under (t) ofthis subsection; (e) Notwithstanding any otherprovision oflaw, all firearm enhancements under this section are mandatory, shall be served in total confinement, andshall run consecutively to allothersentencingprovisions, including other firearm or deadly weapon enhancements,for alloffenses sentencedunder this chapter. RCW 9.94A.533 (emphasis added). Craig Burton acknowledges that the firearm enhancement statute is mandatory, must be served in total confinement, and must run consecutively with all other sentences. He argues, however, that the statute never proscribed modification ofa firearm enhancement as an exceptional sentence under RCW 9.94A.535. To supportthis argument, he emphasizes language regarding mandatory minimum sentences, RCW 9.94A.540(1), which specifically notes the "minimumterms oftotal confinement are mandatory and shall notbe varied or modified under RCW 9.94A.535." Burton observes that RCW 9.94A.533, the firearm enhancement statute, lacks the language "and shall not be varied or modified under RCW 9.94A.535." Because ofthis omission in the latter statute, Burton contends that the firearm enhancement language demonstrates the legislature's intent to allow reduction in confinementthrough exceptional sentences for firearm enhancements. 34No. 34230-1-III State v. Burton

To rebuffCraig Burton's analytical line, the State relies on State v. Brown, 139 Wn.2d 20, 983 P.2d 608 (1999), overruledon othergrounds byState v. HoustonSconiers, 188 Wn.2d 1,391 P.3d 409 (2017). In State v. Brown, ajury convicted Natalie Brown ofsecond degree assault with a deadly weapon because she sliced a man's nose with a knife. The standardrange sentence on her assault conviction was three to nine months, but she was also subjectto a twelve-month deadly weapon enhancement under RCW 9.94A.3I0(4)(b), now RCW 9.94A.533(4). The sentencing court imposed an exceptional, mitigated sentence ofseven months and the State appealed. Although Brown involved a deadly weapon enhancement instead ofa firearm enhancement, Brown and the State raised the same arguments. State v. Brown, 139 Wn.2d at 26-28. In rejecting Brown's argument, our Supreme Courtreasoned: RCW 9.94A.310(4) begins byproviding that deadly weapon enhancements "shall be added to the presumptive sentence[.]" The more specific language within RCW 9.94A.310(4)(e) requires that "[n]otwithstanding any otherprovision oflaw, any and all deadly weapon enhancements under this section are mandatory, [and] shall be served in total confinement." This language clearly dictates areading by the average informed lay voter that deadly weapon enhancements are mandatory and must be served. [J]udicial discretion to impose an exceptional sentence does not extend to a deadly weapon enhancement in light ofthe absolute language of RCW 9.94A.3I0(4)(e). State v. Brown, 139 Wn.2d at 28-29 (some alterations in original). The language ofthe deadly weapon enhancement statute, RCW 9.94A.533(4), nearly repeats the language of

35No. 34230-1-111 State v. Burton

the firearm enhancement statute, RCW 9.94A.533(3). Our Supreme Court recently overruledthe holding ofBrown as it applies to juveniles. State v. Houston-Sconiers, 188 Wn.2d 1 (2017). This recent decision, however, does not undermine the applicability ofBrown for an adult. TheHoustonSconiers court based its rejection ofBrown entirely on the Eighth Amendment prohibitions against cruel punishment. Craig Burton was twenty-five years old at the time ofhis offenses, thus thejuvenilerule does not apply to him. The court's holding in Brown controls this appeal. Issue No. 6: Whether the trial courterredby ruling it lackedauthority to grantan exceptionalsentence downwardon the base sentencingrange? Answer 6: Yes. We now address the trial court's refusal to grant a downward sentence for that portion ofthe sentence attributed to the second degree assault convictions. Craig Burton contends the trial court erred during sentencing when it determined it had no authority or discretion to grant an exceptional, mitigated sentence based on RCW 9.94A.535(1). The State responds, as it did at sentencing, that the court lacked a basis for a downward departure because the factors Burtonrelies on were inherent in the standardrange sentence. We agree with Burton and holdthat the trial court erred in deciding it hadno discretion to impose an exceptional, mitigated sentence since RCW 9.94A.535(1) provides a ground for a downward departure based on factors distinct from those 36 

# INo. 34230-1-III State v. Burton implanted in the standardrange. Wejuxtapose subsections oftwo important statutes withinthe SentencingReform Act of 1981, chapter 9.94A RCW. First, RCW 9.94A.585 declares, in part: (1) A sentence within the standard sentence range, under RCW 9.94A.510 or 9.94A.517, for an offense shall not be appealed. Second, RCW 9.94A.535 reads, in relevantpart: The court may impose a sentence outside the standard sentence range for an offense ifit finds, considering the purpose ofthis chapter, that there are substantial and compelling reasonsjustifying an exceptional sentence.... (1) Mitigating Circumstances-Courtto Consider The court may impose an exceptional sentence belowthe standard range ifit finds that mitigating circumstances are established by a preponderance ofthe evidence. The following are illustrative only and are not intended to be exclusive reasons for exceptional sentences. (e) The defendant's capacity to appreciate the wrongfulness of his or her conduct, or to conform his or her conduct to the requirements of the law, was significantly impaired. Voluntary use of drugs or alcohol is excluded. (Emphasis added.) The trial court sentenced Craig Burton within the standard sentence range for each assault. Therefore, within the confines ofthese two statutes, wepose the following interrelated questions. First, does the former statute disqualify Burton from appealing his sentence? Second, ifnot, was the trial courtprecluded from ordering an exceptional sentence because the factor, on which Burton sought

# adownward sentence, inhered in the standard range sentence? 37No. 34230-1-III State v. Burton Despite the uncompromising language ofRCW 9.94A.585, a defendant may appeal the procedure the trial court followed when imposing a standard range sentence. State v. Knight, 176 Wn. App. 936, 957, 309 P.3d 776 (2013). While no defendant is entitled to an exceptional sentence below the standard range, every defendant is entitled to ask the trial courtto consider such a sentence and to have the alternative actually considered. State v. Grayson, 154 Wn.2d 333, 342, 111 P.3d 1183 (2005). Failure to consider an exceptional sentence is reversible error. State v. Grayson, 154 Wn.2d at 342. When a defendant requested an exceptional sentence, this court may review whetherthe trial court refused to exercise discretion at all orrelied on an impermissible basis for refusing to impose an exceptional sentence below the standard range. State v. GarciaMartinez, 88 Wn. App. 322, 330, 944 P.2d 1104 (1997). Also, when the sentencing court acts outside the structure set by the Sentencing Reform Actthe appellate court may review any such departure. State v. Parker, 132 Wn.2d 182, 188, 937 P.2d 575 (1997). The State correctly argues that the trial court's reasons must be substantial and compelling and may notreflect factors already considered in computingthepresumptive range for the offense. State v. Pascal, 108 Wn.2d 125, 135-36, 736 P.2d 1065 (1987). Nevertheless, Burton requested a mitigated sentence based on one ofthe enumerated circumstances thatjustify an exceptional sentence, not an unlisted substantial and compelling reason. The trial court committed error in believing Burton failed to raise one ofthe enumerated mitigating circumstances asjustification for a downward departure. 38No. 34230-1-111 State v. Burton Craig Burton'strial courtunconditionally refused to exercise its discretion when sentencing Burton withinthe standard range. We must now address two questions that arise under the language ofRCW 9.94A.535. First, did Craig Burton present evidence ofsignificant impairment ofhis capacity to appreciate the wrongfulness ofconduct orto conform to the requirements of the law when, as we previously ruled, he presented no evidence ofan inability to form the intentto cause fear and apprehension ofimmediate bodily injury in others? Second, did Craig Burton "voluntarilyuse" drugs or alcohol such as to disqualify him from the reduced sentence? To qualify for a downward departure under RCW 9.94A.535(l)(e), the record must establish not only the existence ofthe mental condition, but also a connection between the condition and significant impairment ofthe defendant's ability to appreciate the wrongfulness ofhis conduct or to conform his conductto the requirement ofthe law. State v. Schloredt, 97 Wn. App. 789, 802, 987 P.2d 647 (1999). In Schloredt, the trial courtproperly denied the request because, although the defendant suffered from a depressive disorder, the defendant's mental disorder did not compromise his ability to control his actions on the dates ofthe offenses. In answer to our first question, we note that RCW 9.94A.535(l)(f) requires the defendant to show by a preponderance ofevidence thathis mental conditionprevented him from appreciating the wrongfulness ofhis conduct. The statute does notrequire that 39No. 34230-1-III State v. Burton

the defendant show that his mental capacity precluded him from committingthe charged crime or from forming the intent to commit a specific intent crime. We previously held that Craig Burton failed to present evidence thathe could not form the intent to cause fear and apprehension in the minds ofthe law enforcement officers. Nevertheless, ourreview ofthe record shows Burtonprovided some evidence that he did not, because ofmental impairment, grasp the wrongfulness ofhis conduct. Testimony showed Burton suffered from ADHD, the impetus ofBurton's crime was suicide by police, and Burton suffered suicidal ideations as a result ofhis Paxil medication. Alternatively, Burton presented evidence thathe could not conform his conduct to the requirements ofthe law. Although the trial court may still deny Burton's request for a downward departure from the standard range, sufficient evidence allows the trial court to consider a mitigated sentence. We must still inquire whether Craig Burton's use ofPaxil and imbibing ofalcohol disqualifies him from a downward sentence when RCW 9.94A.535 disallows mitigation when the crime results from voluntary use ofdrugs or alcohol. Craig Burton alleges Paxil, aprescription drug, debilitated him. We find no decision that addresses whether

use ofaprescription drug constitutes "voluntary use" such as to debar one from an exceptional sentence. Society does not considerthe use ofprescription drugs morally wrong. Therefore,

we assume that the legislature, when excluding mental incapacity resulting from 40

### No. 34230-1-111 State v. Burton voluntary use ofdrugs, referred to drug abuse or unlawful consumption ofcontrolled substances. Use ofa prescription drug is involuntary in the sense that the patient did not choose to take the drug for recreational purposes, but rather a licensed physician directed the patientto ingestthe drug because ofan involuntary physical ormental condition. To the extentthat the trial court finds that Craig Burton committedhis crimes as a result ofthe use ofPaxil and the Paxil interfered in Burton's ability to comprehend the wrongfulness ofhis conduct, the trial court may reduce Burton's sentence for second degree assaults. To the extentthat the trial court finds that Craig Burton's use ofPaxil led to his imbibing alcohol and the alcohol use contributedto Burton's inability to appreciate the error in his conduct, the trial court may lowerBurton's sentence for assault. To the extentthe trial court finds that Craig Burton's imbibing ofalcohol by itselfwas voluntary and the influence ofalcohol was the only factor reducing Burton's mental capacity, the trial court may not diminish Burton's sentence. Issue 7: Was sentencing CraigBurton to tenyears andthree months of imprisonmentcruelandunusual because he lackeda criminalhistoryandhe discharged

a

firearm during a mentalbreakdown andwithoutphysically harminganother? Answer 7: No. The trial court sentenced Craig Burton for 

### 123 months' confinement for three counts ofsecond degree assault with three firearm weapons enhancements. Burton contends his sentence constitutes cruel and unusual punishment as prohibited by the 

### 41No. 34230-1-III State v. Burton

federal and Washington State Constitutions. He alleges his sentence is unconstitutionally excessive because no legitimate penological interestjustifies its length. The State responds that Burton's sentence is constitutional because it is withinthe statutory maximum and is not grossly disproportionate to the crimes he committed. We agree with the State. The Eighth Amendmentto the United States Constitution proscribes infliction of "cruel and unusual punishment," while Washington Constitution article I, section 14 proscribes infliction of"cruelpunishment." State v. Manussier, 129 Wn.2d 652, 674, 921 P.2d 473 (1996). The state constitutional proscription against cruel punishment provides greaterprotection than the Eighth Amendment. State v. Manussier, 129 Wn.2d at 674. Therefore, we limit our analysis to decisions under the state constitution. A sentence is unconstitutionally cruel when it is grossly disproportionate to the crime for which it is imposed. State v. Whitfield, 132 Wn. App. 878, 901, 134 P.3d 1203 (2006). A punishment is grossly disproportionate only ifthe conduct should never be proscribed or ifthe punishment is clearly arbitrary and shockingto the sense of justice. State v. Smith, 93 Wn.2d 329, 344-45, 610 P.2d 869 (1980). To determine whether a sentence is grossly disproportionate to the crime, an appellate court considers four factors, known as the Fain factors: (1) the nature ofthe offense, (2) the legislative purpose behindthe criminal statute, (3) the punishment defendant would have received in otherjurisdictions for the same offense, and (4) the punishment meted out for other 42 

# INo. 34230-1-111 State v. Burton

offenses in the samejurisdiction. State v. Witherspoon, 180 Wn.2d 875,887,329 P.3d 888 (2014); State v. Fain, 94 Wn.2d 387, 397, 617 P.2d 720 (1980). In addition to the Fain factors, Craig Burton argues the court should considerthe penologicaljustifications for sentencing when determining ifa sentence is excessive, namely retribution, deterrence, incapacitation, and rehabilitation. The only case Burton cites to support this additional set ofconsiderations is Graham v. Florida, 560 U.S. 48, 130 S. Ct. 2011, 176 

### L. Ed. 2d 825 (2010). No Washington decisions expressly review these factors, and we decline to adopt the factors without direction from our state high court. We surmise that the Fain factors indirectly subsume the Graham factors. Nature of the Offense. We now address the Fain factors. Craig Burton argues the first factor weighs in his favor because the nature ofsecond degree assault in the abstract may sound serious, butthe specific facts in his prosecutionprove otherwise. Although Burton discharged eleven shots while officers stood nearby, he fired in a harmless direction and without any intention ofhurting anyone. He argues this conduct echoes the misdemeanorunlawful discharge ofa firearm, excluding the finding that Burton intended to cause the officers fear ofbodily injury. Unfortunately for Burton, we cannot ignore his intent to cause imminent fear ofdeath and the consequential culpability. Burton created a tense environment with multiple police who felt ambushed by an armed man from the

cover ofdark.

43 

# [No. 34230-1-III State v. Burton Legislative Purpose. Craig Burton argues that severelypunishing him does not

serve the firearm enhancement legislative purpose to stigmatize the use ofdeadly weapons by criminals. The firearm enhancement arises from a larger statute passed as the "HardTime for Armed Crime" initiative in recognition that criminals carrying firearms pose a more serious threat than other criminals. State v. Berrier, 110 Wn. App. at 649-50 (2002). The initiative soughtto punish armed offenders more harshly to discourage the use offirearms. State v. Berrier, 110 Wn. App. at 649-50. Burton acknowledges the concern about the use ofguns as being legitimate, but claims those

concerns fail tojustify his ten-year sentence. We disagree. Burton's sentence fulfills the legislative purposes because ofhis use ofa gun. Also, the deterrent effect ofhis sentence could discourage others from using a firearm while engaging in reckless criminal activity. Despite Burton aiming into trees where he believed no one to be present, a bullet could have injured or killed an unknown person nearby. We find this factor weighs against Burton. OtherJurisdictions. Measuringthe punishment a defendant would have received in otherjurisdictions for the same offense allows this courtto discern the normality of Washington's punishment. We briefly review the respective recommended sentences if Burton committed the same conduct in the northwestern states ofAlaska, Idaho, and Oregon. In Alaska, a person commits assault in the third degree when one recklesslyplaces 44No. 34230-1-111 State v. Burton

anotherperson in fear ofimminent serious physical injury by means ofa dangerous instrument. AS 11.41.220(a)(l)(A). Third degree assault represents a class C felony with a maximum term offive years and apresumptive sentencing range ofzero to 18 months. AS 12.55.125(e)(l). Use ofa dangerous instrument in furtherance ofan offense may increase one's sentence in Alaska. Nevertheless, under Alaskan law, the court could not aggravate Craig Burton's sentence because the aggravating factor is a necessary element ofthe crime ofthird degree assault. AS 12.55.155(e);Nedv. State, 119 P.3d 438,445 (Alaska Ct. App. 2005). In Idaho, assault is "[a]n intentional, unlawful threat by word or act to do violence to the person ofanother, coupled with an apparent ability to do so, and doing some act which creates awell-founded fear in such otherperson that such violence is imminent." IC 18-901. Aggravated assault includes assault with a deadly weapon or instrument without intent to kill. IC 18-905(a). An aggravated assault carries a maximum term of imprisonment offive years. IC 18-906. Aggravated assault against a police officer doubles the punishmentto ten years. IC 18-915; State v. Alsanea, 138 Idaho 733, 745, 69 P.3d 153 (Ct. App. 2003). Under IC 19-2520, an offender is subjectto an extended sentence by committing aggravated assault with a firearm. The extended sentence increases the maximum sentence authorized for a crime by fifteen years. IC 19-2520; State v. Farwell, 144 Idaho 732, 736, 170 P.3d 397 (2007). Thus, Craig Burtonwould have faced a maximum sentence oftwenty-five years in Idaho. 45No. 34230-1-III State v. Burton

In Oregon, second degree assault, a class B felony, requires actual physical injury to another. ORS 163.175. In fact, all forms ofassault in Oregon require actual infliction ofphysical injury. ORS 163.160-185. In contrast, the Oregon crime of"menacing"

occurs when, "ifby word or conductthe person, [ the accused] intentionally attempts to · place another person in fear ofimminent serious physical injury." ORS 163.190(1). Menacing constitutes a class A misdemeanor. ORS 163.190(2). Oregon requires a sentencing courtto impose a five-year minimumterm ofimprisonment ifthe defendant used or threatened to use the firearm during the commission ofa felony. ORS 161.61O; State v. Stelijes, 84 Or. App. 637, 639-40, 735 P.2d 24 (1987). This statute would not apply to Craig Burtonbecause he would only be convicted ofa misdemeanorunder Oregon law. The statutory maximum for a class A misdemeanor in Oregon is one year. ORS 161.615. The third Fain factor neitherbenefits nor harms Craig Burton's claim ofcruel punishment since sentences in otherjurisdictions range from as low as thirty days to as high as twenty-five years. The comparisons also fall shortbecause ofthe possible effects ofcharging decisions. Other Washington Offenses. In the final Fain factor, Craig Burton contends he will suffer more punishmentthan others who committed more serious orharmful offenses. He highlights first degree assault or first degree rape when a person may only

serve five years ofincarceration. 46No. 34230-1-III State v. Burton

We encounter difficulty in assessing this last factor. Even our Supreme Courthas struggled with this factor: There is no logical or practical basis for comparison ofpunishment appellant mightreceive for other crimes committed in Washington. Sentences under the Sentencing Reform Act vary with each defendant's criminal history and the presence or absence ofaggravating or mitigating factors. State v. Manussier, 129 Wn.2d at 678 (1996). Considering our analysis with regard to a comparison with drive-by shooting, we conclude that this factor does not assist Craig Burton. Burton's high sentence results not from the second degree assault convictions, but from the firearm enhancements. Ifsomeone committedrape or first degree assault with the use ofa firearm, the person's sentence would also significantly increase. CONCLUSION We affirm Craig Burton's convictions for second degree assault. We remand to the trial court for resentencing. On resentencing, the trial court should determine whether to grant Burton an exceptional downward sentence for the sentencing resulting from the second degree assault convictions. Otherwise, we also affirm the trial court's sentence. We deny the State costs on appeal.

47No. 34230-1-111 State v. Burton

A majority ofthe panel has determinedthis opinion will notbeprinted inthe WashingtonAppellate Reports, butit will be filed for public recordpursuantto RCW 2.06.040.

Fearing, CJ. WE CONCUR:



### j Pennell, J.

48