267 P.3d 528
Wash. Ct. App.2011Background
- Cham assaulted his wife on July 5, 2008, leading to a conviction for second degree assault—domestic violence and a 10-year no-contact order.
- After early 2009 releases, Cham violated the no-contact order on March 31, 2009 by returning to the home with Thi and attacking her with witnesses present.
- The attack lasted about three hours, injuring Thi and witnessed by their two children and a bystander who interrupted the assault.
- Cham was charged with multiple offenses and two aggravating factors: family/household member offense with minor present and rapid recidivism.
- During trial, prior domestic violence evidence was admitted under ER 404(b) without a limiting instruction; defense did not request one.
- Defense counsel represented, without a written waiver, that Cham waived jury consideration of the rapid recidivism aggravator; the jury convicted and an exceptional sentence was imposed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| ER 404(b) limiting instruction duty | Cham argues trial court erred in admitting ER 404(b) evidence without a limiting instruction. | Cham contends counsel's failure to request a limiting instruction was ineffective assistance. | No error; instruction not required absent a request, and no prejudice shown. |
| Waiver of jury trial on rapid recidivism | Cham argues the record lacks constitutionally sufficient waiver for jury trial on rapid recidivism. | State maintains waiver occurred via informed acquiescence given counsel and Cham’s conduct. | Waiver valid; Cham waived jury consideration of rapid recidivism. |
| Sufficiency of findings for rapid recidivism | Cham asserts the court must show a pattern of similar offenses beyond ‘shortly after release.’ | State contends statutory rapid recidivism requires only offense within a short time after release. | Findings support rapid recidivism as a standalone basis for the exception; sufficient. |
| Unanimity requirement for aggravating factor verdict | Cham claims the unanimity requirement for the state's failure to prove the aggravating factor was misapplied. | State argues issue was waived but the court should still apply Bashaw/Ryan standards. | Unanimity required for the verdict on the aggravating factor; exceptional sentence reversed and remanded. |
Key Cases Cited
- State v. Bashaw, 169 Wn.2d 147 (WA Supreme Court 1991) (unanimity not required to prove failure of aggravator under certain statutes)
- State v. Wicke, 91 Wn.2d 638 (WA Supreme Court 1979) (written waiver not required; on-record express waiver or informed acquiescence needed)
- State v. Stegall, 124 Wn.2d 719 (WA Supreme Court 1994) (requires either written waiver or on-record personal expression or informed acquiescence)
- State v. Ryan, 160 Wn. App. 944 (WA Court of Appeals 2011) (constitutional magnitude error; can be raised on appeal; unanimity issues on aggravating facts)