State of Washington v. Bryan Lee Wing
37311-8
| Wash. Ct. App. | Jul 13, 2021Background
- On October 22, 2019, the owner of a Lincoln County residence discovered the front door jamb split, scratches and a dent to the door, and a stolen DeWalt compound miter saw missing from the construction site.
- The owner had purchased the front door two weeks earlier for $1,057.33; she made a temporary repair to the jamb, continued using the door, and had not obtained repair estimates or replacement yet.
- A PayPal debit card bearing the name "Bryan Wing" was found at the scene; deputies executed a search warrant at Wing’s home and found sawdust in his car, matching shoe tread impressions, and the miter saw in his trunk; the owner identified the saw as hers.
- Wing was tried and convicted by a jury of second-degree burglary, second-degree malicious mischief, and third-degree theft; he had 18 prior convictions and the court imposed an exceptional sentence totaling 97 months.
- At sentencing Wing disputed how eight prior July 18, 2014 convictions should be scored (argued many were the same criminal conduct) and requested a Drug Offender Sentencing Alternative (DOSA); the court denied DOSA and counted the prior convictions separately.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the State proved damages exceeding $750 for second-degree malicious mischief | The door’s invoice ($1,057.33) shows the door’s value exceeds $750, satisfying the element | Replacement/retail price alone is not proof of damages; no repair estimate or diminution-of-value evidence; door was not a total loss and was still usable | Vacated second-degree malicious mischief conviction; evidence did not show damages >$750; enter judgment for third-degree malicious mischief and remand for resentencing |
| Whether eight prior July 18, 2014 convictions should be scored as one offense (same criminal conduct) | The five identity-theft convictions involved different victims/locations/times (uses of cards) and thus count separately | All convictions arose from theft of a single wallet/were a continuous episode and thus should be scored together as one point | Affirmed trial court: identity-theft counts were separate (different places/times/victims); offender score calculation upheld |
| Whether denial of DOSA was impermissibly based on Wing’s decision to go to trial (chilling right to jury trial) | Denial was discretionary and based on permissible factors (prior DOSA failures, lack of drug nexus, multiple property victims); comments addressed Wing’s inconsistent statements, not punishment for trial | Court’s comments punished him for forcing trial and imposed a penalty for exercising the right to a jury trial | Court found some sentencing remarks impermissible; remand for resentencing to reconsider DOSA without influence of defendant’s insistence on trial (resentencing also required by reduction of offense level) |
Key Cases Cited
- State v. Thomas, 150 Wn.2d 821 (sufficiency-of-the-evidence standard for convictions)
- State v. Newcomb, 160 Wn. App. 184 (damages include reasonable repair costs or diminution in value)
- State v. Longshore, 141 Wn.2d 414 ("value" as market value in theft contexts)
- State v. Tili, 139 Wn.2d 107 (same criminal conduct test: same time, place, and objective intent)
- State v. Grayson, 154 Wn.2d 333 (DOSA is discretionary and normally not appealable absent constitutional claim)
- In re Personal Restraint of Goodwin, 146 Wn.2d 861 (miscalculated offender score is without statutory authority)
- United States v. Stockwell, 472 F.2d 1186 (sentencing remarks can create an inference of punishment for exercising trial rights; may require remand)