State Of Washington, Respondent V. Peterson Barzie, Appellant

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON, 	) 	No. 73350-8-1 CD 	r i
Respondent,
v.
PETERSON BARZIE,
)
)
)
)
)
)
DIVISION ONE
UNPUBLISHED OPINION
en
V?
f T
Appellant. 	)
)
FILED: August 29, 2016 	r
Leach, J. — Peterson Barzie appeals the exceptional sentence imposed
by the trial court after a jury convicted Barzie of one count of harassment and two
counts of felony harassment. 	He makes three challenges.
First, he correctly claims that the trial court impermissibly commented on
the evidence with its instruction defining a "prolonged period of time." 	But the
record affirmatively shows that this error could not have prejudiced Barzie.
Second, he contends that double jeopardy bars an exceptional sentence
based 	on 	his 	earlier 	convictions 	because 	Barzie's 	offender 	score 	already
reflected those offenses. 	We disagree because the circumstances of Barzie's
earlier convictions, 	not the fact of those convictions, 	proved the aggravating
factor found by the jury and relied on by the trial court to justify its sentence.
Third, he argues that the trial court violated his right to a trial by jury when
it decided 	that 	the 	aggravating 	circumstance found 	by the 	jury 	provided 	a

No. 73350-8-1 / 2
"substantial and compelling reason" to impose an exceptional sentence. 	Our
state Supreme Court rejected this argument in State v. Suleiman.1
We affirm.
FACTS
Barzie and Amelia Sasu met in 2005 while Sasu was visiting Seattle from
New York City. 	She returned to New York, and Barzie came to stay with her.
They began a relationship. 	They remained in contact after Barzie left New York.
Sasu moved to Seattle in 2007, and Barzie moved in with her in 2008. 	They
argued and broke up frequently. 	They ended their relationship in 2013.
Sasu and Onoya Okonda began a relationship in the summer of 2014.
Barzie 	called 	Okonda, 	said 	that 	he 	saw 	Okonda 	with 	Barzie's 	"girl," 	and
threatened to shoot Okonda. 	Okonda did 	not think Barzie meant Sasu but
someone else. 	On October 18, Okonda approached 	Barzie 	at a 	party. 	He
started a fight by pushing Okonda. Friends kept the men apart. As Okonda left,
Barzie waved a gun and yelled, "Whenever I see you, see what I'm gonna do to
you."
On November 7, Barzie went to Sasu and Okonda's home and banged on
the door. 	Okonda called 911, and Sasu went outside. 	She told Barzie to leave.
Barzie lifted his shirt to show a gun in his waistband and said, "Well, I'm just
1 158 Wn.2d 280, 290, 143 P.3d 795 (2006).
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No. 73350-8-1 / 3
gonna let you know the next time I see you and your boyfriend around in my
territory, I'm gonna blow your head off." Sasu went inside and told Okonda about
this.
The State charged Barzie with three counts of felony harassment for what
he said to Okonda on October 18 (count 1) and what he said to Sasu about her
and Okonda on November 7 (count 2 and count 3). 	At trial, Sasu described
Barzie's harassment of and violence toward 	her from 	2008 to 2014. 	Police
responded to at least two of the incidences she described. 	Both Sasu and
Okonda believed Barzie would kill them. 	A jury convicted Barzie of harassment,
a lesser offense, for count 1, and as charged for count 2 and count 3.
The 	court 	then 	conducted 	an 	aggravator 	hearing, 	where 	the 	jury
considered if "[t]he offense was part of an ongoing 	pattern of psychological,
physical, or sexual abuse of a victim or multiple victims . . . over a prolonged
period 	of time."2 	To prove this, 	the State presented 	certified 	copies of six
judgments and sentences for earlier convictions involving Sasu. These included
three domestic violence felony violations of a court order resulting in protection
orders. 	Each 	counted 	toward 	Barzie's 	offender score.3 	The 	other earlier
convictions 	admitted 	at 	the 	hearing, 	but 	not 	used 	in 	the 	offender 	score
calculation, also involved Sasu. 	They were for domestic violence misdemeanor
2 RCW 9.94A.535(3)(h)(i).
3 See RCW 9.94A.525.
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No. 73350-8-1/4
of a court order resulting in a no-contact order, domestic violence assault in the
fourth degree, and violation of no-contact order and theft. 	Over objection, the
trial court admitted the convictions, concluding that "a violation of a No-Contact
order can be circumstantial evidence of that psychological component of that
issue." 	The State argued to the jury that Sasu's testimony at trial proved the
aggravating circumstance of domestic violence, confirmed 	by the 	conviction
documents. 	The trial court instructed the jury that a "'prolonged period of time'
means more than a few weeks." 	The jury returned a special verdict, finding that
count 2 was an aggravated domestic violence offense.
Barzie had an offender score of four and faced a standard range sentence
of 12 to 	16 months on each felony conviction. 	The 	trial court imposed an
exceptional sentence on count 2, concluding that the special verdict provided a
substantial and compelling reason to do so. 	The trial court imposed a sentence
of 364 days on count 1, an exceptional sentence of 40 months on count 2, and a
standard range sentence of 16 months on count 3.
Barzie appeals the exceptional sentence.
STANDARD OF REVIEW
This court reviews the legal sufficiency of jury instructions de novo.4 	We
review a claim based upon double jeopardy de novo.5 	And this court reverses a
4 State v. Walker, 182 Wn.2d 463, 481, 341 P.3d 976, cert, denied, 135 S.
Ct. 2844(2015).
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No. 73350-8-1 / 5
sentence outside the standard sentence range when it finds that (a) the record
does not support the reasons given by the sentencing court or those reasons do
not support a sentence outside the standard range or (b) the sentence imposed
was clearly too excessive or too lenient.6
ANALYSIS
Barzie 	asserts 	that 	the 	trial 	court 	impermissibly 	commented 	on 	the
evidence with its instruction defining a "prolonged period of time." 	In State v.
Brush.7 our Supreme Court held that the same instruction was an impermissible
comment on the evidence. 	The State properly concedes error.
Washington 	courts 	presume 	that 	judicial 	comment 	on 	the 	evidence
prejudices a defendant, and the State has the burden to affirmatively show that
the error could not have prejudiced the defendant.8 	Barzie argues that the record
does 	not 	affirmatively show the 	absence of prejudice and 	that this 	case 	is
analogous to Brush. 	In that case, the court decided that the State had failed to
show that the improper instruction did not prejudice Brush because the State
presented evidence that the abuse at issue occurred over a two-month period.9
The court concluded that "a straightforward application of the jury instruction
5 State v. Fuller, 185 Wn.2d 30, 33-34, 367 P.3d 1057 (2016).
6 RCW 9.94A.585(4).
7 183 Wn.2d 550, 558-59, 353 P.3d 213 (2015).
8 State v. Lew, 156 Wn.2d 709, 723, 132 P.3d 1076 (2006).
9 Brush. 183 Wn.2d at 558-59.
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No. 73350-8-1/6
would likely lead a jury to conclude that the abuse in this case met the given
definition of a 'prolonged period of time,'" relieving the State of its burden.10
Barzie notes that the State emphasized the improper instruction at the
aggravator hearing and the incident at issue happened only 11 months after
Barzie and Sasu's tumultuous relationship ended. 	During closing argument at
the aggravator hearing, the State argued to the jury, "It's essentially what I just
said in my opening. 	This has gone on for a long period of time. 	Your question is
whether or not this went on longer than a few weeks. 	She testified it's been
going on since 2007."
The State urges this court to find this case analogous to State v. Levy.11
where 	the 	Supreme 	Court 	held 	that 	a 	comment on 	the 	evidence 	was 	not
prejudicial. 	In Lew, the trial court instructed the jury on the elements of the crime
at issue, including references to a "building, to-wit: 	the building of Kenya White,"
to a "deadly weapon, to-wit: 	a .38 revolver or a crowbar," and 	to "personal
property to-wit: 	jewelry."'12 	The 	court 	concluded that the 	references to the
apartment as a building and the crowbar as a weapon constituted error because
it established those elements of the crime as a 	matter of law.13 	The court
concluded 	that 	because the 	defendant 	never challenged 	that the 	apartment
10 Brush, 183Wn.2dat559.
11 156 Wn.2d 709, 726, 132 P.3d 1076 (2006).
12 Lew. 156Wn.2dat716.
13 Lew. 156 Wn.2d at 721-22.
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No. 73350-8-1 / 7
constituted a building and because common sense permitted the conclusion, the
jury could 	have concluded only that the 	apartment constituted a building and
nothing else.14 And because it found that Levy did not possess the crowbar, the
record showed that he could not have been prejudiced if the jury erroneously
concluded that the crowbar was a deadly weapon.15
The State claims that the 	record shows that no 	prejudice could 	have
occurred. 	During the aggravator hearing, Barzie did not argue that the period of
time in question was not a prolonged period of time. 	Instead, he argued that
"[y]ou don't know the circumstances of how those violations of the No-Contact
Order 	took 	place. . . . And 	so, 	you 	don't 	actually 	know 	that 	any 	of 	these
convictions really in fact prove the pattern of ongoing psychological or physical
abuse." 	He 	argued 	that 	the 	on-again-off-again 	nature 	of their 	relationship
indicated that Sasu may have invited the contact and thus the violations of no-
contact orders did not show abuse:
The other thing I should note is the dates of a lot of these. 	You're
gonna find a lot are from 2008. 	And then you're gonna find one for
2009 and I think there are two very close in time—or sorry—2009
and 2011. 	One from 2011. 	So, essentially then there's this stop
gap from 	2011 	onward. ... So, 	[the 	no-contact 	orders] 	are 	not
always necessarily something that she wished or desired . . . [or]
actual indications that she did not want to have contact with Mr.
Barzie.
14 Lew. 156Wn.2dat726.
15 Lew. 156Wn.2dat726.
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No. 73350-8-1 / 8
And he also argued that a pattern of abuse did not exist:
The second thing that I wanted to raise is that there's been a
break and there's been a break in the pattern. 	2011 is when the
convictions—the 	last 	conviction 	that 	you 	will 	receive .... Then
there's a break, right? And so, we know from Ms. Sasu's testimony
that yes there was some contact that she had—what was it, July
26, 2013. 	And then after that what we have is basically phone calls
and then it stops as soon as she says, "If you call me again, I'll put
you in jail."... So, the defense submits that this is not an ongoing
pattern of psychological and physical abuse because there's been
a break in the relationship and in the circumstances.
Barzie based his defense to the aggravator charge on his characterization
of the type of contact between 	Barzie 	and 	Sasu and a 	claimed absence of
evidence of a 	pattern of abuse. 	As 	in Levy, Barzie made no claim that his
conduct did not occur over a prolonged period of time. 	Because evidence of the
abuse 	dated 	back 	several 	years 	and 	because 	Barzie 	did 	not 	contest 	the
prolonged period of time element of the alleged aggravating circumstance, when
the jury found 	that Barzie's earlier contact with Sasu was domestic abuse, it
could only have found that it was for a prolonged period of time. 	Thus, the trial
court's comment could not have prejudiced Barzie.
Barzie next argues that the trial court placed him in double jeopardy when
it imposed an exceptional sentence based on the same earlier domestic violence
convictions used to calculate his offender score to determine his standard range
sentence.
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No. 73350-8-1 / 9
The 	state 	and 	federal 	constitutions 	prohibit 	placing 	an 	individual 	in
jeopardy twice for the same offense.16 	A trial court imposing an exceptional
sentence must justify that sentence with factors different than those necessarily
considered when computing a defendant's offender score.17 	"Prior convictions
are already accounted for in calculating the offender score and should not be
counted a second time in imposing a sentence outside the standard range."18
But the 	trial 	court 	may 	impose 	an 	exceptional 	sentence 	when 	it uses 	the
circumstances of the earlier conviction and not the fact of the conviction itself as
its justification.19
The imposition of an exceptional sentence involves a two-step process. 	A
jury must first find beyond a reasonable doubt the existence of an aggravating
factor. 	The trial court must then decide a legal question: 	does the factor found
by the jury provide a substantial and compelling 	reason to depart from 	the
standard sentence range?20
In State v. Bartlett.21 the trial court imposed an exceptional sentence after
convicting Bartlett of murder in the second degree based upon second degree
16 State v. Kier. 164 Wn.2d 798, 803-04, 194 P.3d 212 (2008); Whalen v.
United States. 445 U.S. 684, 688, 	100 S. Ct. 1432, 63 L. Ed. 2d 715 (1980);
Wash. Const, art. I, § 9; U.S. Const, amend. V.
17 State v. Barnes. 117 Wn.2d 701, 706, 818 P.2d 1088 (1991).
18 State v. Bartlett. 128 Wn.2d 323, 333, 907 P.2d 1196 (1995).
19 Bartlett. 128 Wn.2d at 336-37.
20 RCW 9.94A.537(4)-(6).
21 128 Wn.2d 323, 327-28, 907 P.2d 1196 (1995).
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No. 73350-8-1/10
assault and second degree criminal mistreatment of his infant child. 	The trial
court concluded Bartlett's earlier conviction for second degree assault of another
infant son supported a sentence above the standard range due to his enhanced
culpability.22 	Bartlett challenged the exceptional sentence on the grounds that
the trial court already used his criminal history to compute his offender score for
sentencing purposes and so may not consider it to impose a sentence outside
the presumptive range.23 	The Supreme Court affirmed Bartlett's conviction. 	It
held 	that 	the 	trial 	court 	did 	not 	base 	its 	exceptional 	sentence 	upon 	its
consideration of the earlier conviction itself but upon the particularized knowledge
Bartlett had 	from 	the circumstances of the earlier conviction.24 	The earlier
conviction, the court concluded, "put him on special notice of the serious risk to
infants which he disregarded when he shook his younger son, 	Brandon, with
violent force."25 	The Supreme Court held that the trial court did not err when it
imposed an exceptional sentence based on Bartlett's especially culpable mental
state.26
Barzie argues that unlike Bartlett, here the judgments and sentences do
not 	contain 	underlying 	facts 	that 	the 	jury 	could 	use 	to 	find 	a 	"pattern 	of
22 Bartlett. 128 Wn.2d at 328-29.
23 Bartlett, 128 Wn.2d at 331.
24 Bartlett. 128 Wn.2d at 336-37.
25 Bartlett. 128 Wn.2d at 333.
26 Bartlett. 128 Wn.2d at 336-37.
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No. 73350-8-1/11
psychological, 	physical, 	or 	sexual 	abuse" 	in 	order 	to 	find 	the 	aggravating
circumstance of domestic violence.27
To calculate Barzie's offender score, the trial court had to count Barzie's
earlier felony convictions.28 	But the records of Barzie's earlier convictions for
both 	felonies 	and 	misdemeanors 	provided 	different 	information 	for 	the jury.
Because the earlier convictions all involved domestic violence against Sasu and
spanned several years, from 2008 to 2011, they provided evidence that Barzie
had engaged in an "ongoing pattern of psychological, physical, or sexual abuse
over a prolonged period of time."29
Similar to 	Bartlett. 	where 	the 	earlier conviction 	provided 	evidence 	of
Bartlett's mental state in order to prove the aggravating circumstance, here, the
convictions 	provided 	evidence 	of 	Barzie's 	protracted 	abuse 	of 	Sasu 	and
corroborated her testimony. 	Allowing the jury to consider the circumstances of
the earlier offenses to find that Barzie had engaged in a pattern of abuse toward
Sasu did not put Barzie in double jeopardy.
Finally, Barzie contends that the trial court engaged in judicial fact-finding
when 	it 	determined 	that 	substantial 	and 	compelling 	reasons 	justified 	the
exceptional sentence. 	The Sixth Amendment to the United States Constitution
27 RCW 9.94A.535(3)(h)(i).
28 RCW 9.94A.525.
29 RCW 9.94A.535(3)(h)(i).
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No. 73350-8-1/12
provides the accused with the right to a trial by an impartial jury. 	"This right, in
conjunction with the Due Process Clause, requires that each element of a crime
be proved to the jury beyond a reasonable doubt."30 	Any fact that increases the
penalty for a criminal conviction beyond the statutory maximum must be proved
to a jury beyond a reasonable doubt.31
In this case, the trial court followed the two-step process approved by the
Washington Supreme Court in Suleiman.32 We are bound by Suleiman. 	Barzie
acknowledges this precedent but argues that it reflects an incorrect interpretation
of dicta in Blakely v. Washington.33 	As the State asserts, Barzie presents an
argument controlled by Supreme Court authority that this court must follow.34
CONCLUSION
Although the trial court instruction defining "a prolonged period of time"
improperly commented on the evidence, this error could not have prejudiced
Barzie. 	Because the jury considered different information about Barzie's prior
convictions than the trial court considered when calculating his offender score,
the trial court did not place Barzie in double jeopardy. 	Finally, binding Supreme
30 Allevne v. United States. 	U.S. 	, 133 S. Ct. 2151, 2156, 186 L
Ed. 2d 314 (2013).
31 Hurst v. Florida. 	U.S. 	, 136 S. Ct. 616, 621, 193 L. Ed. 2d 504
(2016) (quoting Apprendi v. New Jersey. 530 U.S. 466, 494, 120 S. Ct. 2348, 147
L. Ed. 2d 435 (2000)).
32 Suleiman, 158 Wn.2d at 290.
33 542 U.S. 296, 305, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004).
34 State v. Gore. 101 Wn.2d 481, 487, 681 P.2d 227 (1984).
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No. 73350-8-1/13
Court precedent holds that the trial court did not violate Barzie's right to a trial by
jury when it decided that the aggravating circumstance found by the jury provided
a "substantial and compelling reason" to impose an exceptional sentence. 	We
affirm.
WE CONCUR:
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