WPIC 300.34 Aggravating Circumstance—Level of Bodily Harm [RCW 9.94A.535(3)(y)]

For the aggravating circumstance involving the level of bodily harm, use the applicable bracketed clause in WPIC 300.02 (Aggravating Circumstance Procedure—Factors Alleged—Unitary Trial) or WPIC 300.06 (Aggravating Circumstance Procedure—Factors Alleged—Bifurcated Trial or Stand-Alone Sentencing Proceeding). Within that clause, identify the applicable level of bodily harm. If not already defined, use WPIC 2.03 (Bodily Harm—Definition), WPIC 2.04.01 (Great Bodily Harm—Definition), or WPIC 2.03.01 (Substantial Bodily Harm), as applicable.

Use the second sentence if there is evidence that the victim's injuries fell within a higher statutory category than necessary to constitute the crime. That is, if the crime requires infliction of “bodily harm,” use this sentence if there is evidence that the defendant inflicted “substantial bodily harm.” If the crime requires infliction of “substantial bodily harm,” use this sentence if there is evidence that the defendant inflicted “great bodily harm.”

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

This aggravating circumstance was added to the Sentencing Reform Act in 2005. The accompanying legislative history indicates that the statutory language was designed to codify existing common law aggravating circumstances. Laws of 2005, Chapter 68, § 1 (effective April 15, 2005). This instruction was cited with approval in State v. Perry, 6 Wn.App.2d 544, 431 P.3d 543 (2018) (hit and run—injury).

This aggravating circumstance is not an exception to the real facts doctrine contained in RCW 9.94A.530(2). RCW 9.94A.535(3)(y). This judicially-created aggravating circumstance, however, has been found to be appropriate in assault and vehicular assault cases. See, e.g., State v. Wilson, 96 Wn.App. 382, 387–88, 980 P.2d 244 (1999) (second degree assault case); State v. Quiros, 78 Wn.App. 134, 896 P.2d 91 (1995) (vehicular assault case); State v. McClure, 64 Wn.App. 528, 827 P.2d 290 (1992) (second degree assault case).

In determining whether this aggravating circumstance exists, the jury should compare the victim's injuries against the minimum injury necessary to establish the charged crime. This circumstance necessarily exists if the victim's injuries fall into a higher statutory category. For example, if the crime requires infliction of substantial bodily harm, the aggravating circumstance exists if the victim suffered great bodily harm. Even if the harm fell short of “great bodily harm,” the jury could still find that the victim's injury substantially exceeded the minimum injury necessary to constitute “substantial bodily harm.” State v. Pappas, 176 Wn.2d 188, 289 P.3d 634 (2012).

This aggravating circumstance is inapplicable to first degree assault because no injury can “substantially exceed” the level of bodily harm necessary to satisfy the element of “great bodily harm.” State v. Stubbs, 170 Wn.2d 117, 131, 240 P.3d 143, 149 (2010). The statutory presumption is that this aggravating circumstance will be presented to the jury during the trial of the alleged crime. RCW 9.94A.537(4). The aggravating circumstance does apply to crimes that require infliction of “bodily harm.” State v. Perry, 6 Wn.App.2d 544, 431 P.3d 543 (2018) (hit and run—injury).

For further discussion of this aggravating circumstance, see Fine, 13B Washington Practice, Criminal Law and Sentencing, section 47:27 (3d ed.).