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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON STATE OF WASHINGTON, ) ) Respondent, ) ) v. ) ) BRIAN LEROY SIERS, ) ) Appellant. ) ________________________________)

No. 63697-9-I DIVISION ONE

PUBLISHED OPINION FILED: November 29, 2010

Becker, J. -- After State v. Powell,1 the State must include in the information any aggravating factor it intends to prove for purposes of seeking an exceptional sentence above the standard range. The question in this case is: what remedy is available to a defendant when the State presents an uncharged aggravator to the jury--is it merely to strike the exceptional sentence if one is imposed? Or must the aggravating factor be treated as an essential element of the underlying crime, so that the charge on that count is viewed as fatally deficient for omitting it? We agree with appellant that he is entitled to the usual remedy for a deficient information: dismissal of the underlying criminal charge, without prejudice to the State's ability to refile.

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167 Wn.2d 672, 223 P.3d 493 (2009).

No. 63697-9-I/2 The uncommon procedural issue presented here arises from that most common of crimes, a bar fight. On the night of June 20, 2008, appellant Brian LeRoy Siers got into an argument with Jesse Hoover at a restaurant and bar in north Seattle for reasons neither could specify at trial. Later, when they were outside smoking, a fight erupted between the two. Another patron, Daniel Whitten, allegedly tried to break up Siers and Hoover, aided by the bartender's girl friend. According to Whitten's testimony at trial, Siers pulled out a small pocket knife. Whitten tried to get the bartender's girl friend out of the way and grabbed Siers from behind. Siers reportedly turned toward Whitten and stabbed him in the abdomen. Hoover testified that he did not see a knife, but realized after the fight that he had been stabbed in the arm and forehead. Siers fled the scene. Whitten and Hoover were taken to a hospital for treatment. The State charged Siers with two counts of assault in the second degree with a deadly weapon enhancement alleged as to each count. Neither the original nor the amended information alleged the existence of an aggravating circumstance. Among the statutory factors a court may consider as a basis for imposing an exceptional sentence outside the standard range is the "good Samaritan" aggravator. RCW 9.94A.535(3)(w) ("The defendant committed the offense against a victim who was acting as a good samaritan."). The statute codifies a common law aggravating circumstance recognized in State v. Hillman, 66 Wn. App. 770, 832 P.2d 1369, review denied, 120 Wn.2d 1011 (1992). A

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No. 63697-9-I/3 recommended pattern instruction defines a good Samaritan as "a person who comes to the aid of an injured, stranded, or otherwise imperiled person." 11A Washington Practice Pattern Jury Instructions: Criminal 300.32 at 745 (3d ed. 2008) (WPIC). This aggravating circumstance is to be presented to the jury during the trial of the alleged crime. WPIC 300.32, note on use at 745 (3d ed. 2008). The State claims that in early April 2009, it notified Siers in writing of its intention to seek a jury finding on the good Samaritan aggravating factor with respect to count 2, the alleged assault involving Whitten. On the first day of trial, April 20, 2009, the State also advised the court. Siers testified at trial he acted in self-defense and denied using a knife. After both sides rested, the trial court discussed jury instructions with the parties. The proposed instructions reflected the State's intention to seek a finding on the good Samaritan aggravating factor with respect to count 2. Siers objected to the characterization of Whitten as a good Samaritan on insufficiency of the evidence grounds. The court rejected this argument. Siers then raised a second objection: the aggravating factor could not be submitted to the jury because it was not alleged in the information. During the instructions conference, Siers acknowledged receiving notice in advance of trial,2 but argued the State should have amended the information to include the aggravating factor if the State actually intended to put the aggravator before the jury. The State took the position that an aggravating circumstance does not
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Our record does not include any written notice of the aggravator.

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No. 63697-9-I/4 have to be included in the information. Nevertheless, the State moved to amend the information. The trial court denied the motion to amend because both sides had already rested. After taking time to research the issue, the trial court agreed tentatively with the prosecution that the aggravator need not be in the information. See State v. Berrier, 143 Wn. App. 547, 549, 178 P.3d 1064 (2008), now superseded by Powell. The court gave three instructions related to the aggravator. Instruction 26 stated, "If you find the defendant guilty of Assault in the Second Degree as charged in Count 2 or the crime of Assault in the Third Degree as a lesser offense of Count 2, then you must determine if the following aggravating circumstance exists: Whether the defendant committed the crime against a victim who was acting as a good Samaritan." Instruction 27 stated, "A good Samaritan is a person who voluntarily comes to one's aid." Instruction 28 explained that it was the State's burden to prove the aggravating circumstance beyond a reasonable doubt and the jury had to unanimously agree on the aggravator. Before closing arguments, Siers renewed his objection to the jury instructions and the special verdict form involving the good Samaritan aggravator: First of all, it was not alleged in the pleadings that this aggravating circumstance was being urged by the State. I did receive advance notice. There was no question about that. That's what they were intending on doing, but in my judgment they never got around to doing it. They did not amend the information to charge that, and in the absence of a specific allegation in the information I believe that the instruction should not be given. 4

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The trial court overruled the objection and submitted the aggravating factor to the jury. The State concluded its closing argument by urging jurors to remember that, "Nobody asked [Whitten] to jump in and help stop the defendant from a further attack. . . . He did it because he was trying to get the defendant to stop attacking Jesse Hoover. . . . I ask you to hold the defendant accountable for the choices that he made on that night." The jury found Siers guilty on both counts of assault in the second degree. By special verdicts, the jury found Siers was armed with a deadly weapon on each count. The jury also answered "yes" on a "Special Verdict Form On Aggravating Circumstance for Count 2 Only": We, the jury, having found the defendant Brian Siers guilty in Count 2 of the crime of Assault in the Second Degree or the lesser included offense of Assault in the Third Degree, return a special verdict as follows: Question: Did the defendant Brian Siers commit the crime charged in Count 2 or the lesser included offense in Count 2 against Dan Whitten while Whitten was acting as a good Samaritan? Answer: Yes. At sentencing on June 5, 2009, the State did not request an exceptional sentence.3 And the trial court did not impose an exceptional sentence. But the court did consider the aggravator in deciding to sentence Siers to 38 months, which was at the high end of the standard range: I could impose an exceptional sentence because of the good Samaritan aggravator. I think the State's taking the right position in
At oral argument before this court, counsel for the State said the prosecutor probably introduced the good Samaritan aggravator as a "backup" in case the jury did not make a deadly weapon finding, to ensure the State would be able to ask for a sentence that would be longer than a standard range sentence.
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No. 63697-9-I/6 this case in not requesting an exceptional sentence given the facts, but I do think in order to give some weight to the jury's finding of a good Samaritan aggravator that I will impose the high end of the range. Siers appeals. He contends aggravating factors are essential elements of the underlying offense and therefore must be included in the information if they are to be submitted to the jury. He argues that since his constitutional right to notice of the good Samaritan aggravator was violated, he is entitled to reversal of the conviction on count 2. All essential elements of a crime, statutory or nonstatutory, must be included in the charging document in order to give the accused notice of the nature of the allegations so that a defense can be properly prepared. State v. Kjorsvik, 117 Wn.2d 93, 97-102, 812 P.2d 86 (1991). The essential elements rule is of constitutional origin and is also embodied in a court rule. Const. art. I,

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