HOUGHTON, C.J.
John Conlee appeals his conviction of second degree assault of a child, arguing insufficient evidence to convict and sentencing error. We affirm.
FACTS
In February 2004, eight-year-old AH lived with her mother and her mother's boyfriend, Conlee. She lived in an unfinished bedroom with exposed two-by-four posts in the wall, and her mother and Conlee lived in another room.
While AH lived with Conlee, he occasionally spanked her buttocks with his hand and with a belt. He spanked her with a belt more often than with his hand. On occasion, he would spank her up to 30 times with the belt. She became scared when he used the belt.
Conlee would also grab AH by the neck and pick her up. He would hold her off the ground "[f]or a little while" and as this was happening, she could "[h]ardly" breathe. Report of Proceedings (RP) (May 11, 2005) at 96. This made her feel like she "had no neck" and when he set her down, it made her neck feel "real hard." RP (May 11, 2005) at 97. Her neck would hurt for a "couple of seconds." RP (May 11, 2005) at 97. She described the marks that would occur after he picked her up by the neck as like "fingerprints, when you go like that and see white marks." RP (May 11, 2005) at 97. The marks did not last long.
On one occasion after Conlee picked her up by the neck, he put her down and flicked cigarette ashes on her. The ashes burned her right arm, leaving a scar.
On February 23, 2004, Conlee told AH's mother that AH was hurting herself. He said that she was banging her head against the walls. When her mother asked her why she was doing that, she said, "I don't know." RP (May 11, 2005) at 109.
The same day, AH's mother took her to the Kitsap Mental Health Adolescent Treatment Unit (ATU). When she arrived at the ATU, a therapist spoke with her. One of AH's ears was swollen and "very bruised[,] like purply black bruised." RP (May 11, 2005) at 153. She had some bruising underneath her eyes and over the bridge of her nose on one side of her head and some marks on her arm. The therapist discerned that the bruises were in different stages of healing because the shades of the bruising varied.
The current name of the facility is Kitsap Mental Health Services, but at the time of the event the name for the youth inpatient unit was Adolescent Treatment Unit.
Dr. Michael Burke, the ATU staff psychiatrist, felt it necessary to transport AH to the emergency room for a cranial CT scan. He noticed contusions and abrasions on her face and right ear and burn marks on her right forearm. He believed that her injuries were caused by multiple impacts and not self-inflicted.
When first admitted to the ATU, AH stated that she had caused her own injuries. Later, when a sheriff's deputy interviewed her, she stated that Conlee had caused the injuries by hitting her with a belt.
On May 10, 2005, the State charged Conlee with second degree assault of a child under alternative prongs set forth in RCW 9A.36.130(1), with special allegations that he committed the assault while using his position of trust and that he knew or should have known of AH's particularly vulnerability.
Before Conlee's trial, the United States Supreme Court issued its holding in Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004). In response, the Washington State legislature enacted new laws, effective April 15, 2005, providing guidelines for sentencing procedures that would comply with Blakely. RCW 9.94A.535, .537.
Trial before a jury began on May 10, 2005. AH testified that Conlee had whipped her with a belt. She said he hit her on the head with the strap of the belt, hitting her ear and eye, multiple times, although she could not recall the exact number. She did not tell her mother that he had hit her because "[he] said that if [she] ever [told] anyone, [she] would get it again." RP (May 11, 2005) at 109.
The trial court instructed the jury on two alternative methods of convicting Conlee of second degree assault of a child. The trial court also submitted special verdict forms to the jury on the issue of aggravating circumstances for sentencing purposes. The jury found Conlee guilty of second degree assault of a child and concluded that facts supported two aggravating circumstances, abuse of trust and particular vulnerability.
The presumptive sentencing range based on Conlee's offender score was 36 to 48 months, and the statutory maximum sentence for second degree assault of a child, a class B felony, was 10 years. RCW 9.92.010. After taking into consideration the jury's findings of fact as to the aggravating circumstances, the trial court imposed an exceptional sentence upward, sentencing Conlee to 60 months: 48 months based on the presumptive range and 6 months for each of the two aggravating circumstances the jury found.
Conlee appeals, challenging his conviction and sentence.
ANALYSIS Sufficiency of the Evidence
Conlee first contends that insufficient evidence shows that he committed second degree assault of a child under both alternatives set forth in RCW 9A.36.130(1). He asserts that the State did not prove the harm required under RCW 9A.36.130(1)(b).
Conlee does not raise a sufficiency claim as to RCW 9A.36.130(1)(a).
Sufficient evidence supports a conviction if, when viewed in the light most favorable to the State, it allows any reasonable person to find each element of a crime beyond a reasonable doubt. State v. DeVries, 149 Wn.2d 842, 849, 72 P.3d 748 (2003). An insufficiency claim admits the truth of the State's evidence and any reasonable inferences from it. State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992). We defer to the trier of fact on issues of conflicting testimony, credibility of witnesses, and the persuasiveness of the evidence. State v. Thomas, 150 Wn.2d 821, 874-75, 83 P.3d 970 (2004).
In an alternative means case, where a defendant may commit a single offense in more than one way, there must be jury unanimity as to guilt for the single crime charged. State v. Rivas, 97 Wn. App. 349, 351-52, 984 P.2d 432 (1999). Unanimity is not required, however, as to which means the defendant used to commit the crime so long as substantial evidence supports each alternative means. Rivas, 97 Wn. App. at 351.
To convict Conlee of second degree assault of a child, the State had to prove, beyond a reasonable doubt, that he intentionally assaulted a child and thereby recklessly inflicted substantial bodily harm on her. RCW 9A.36.130(1)(a). Alternatively, the State could have convicted him by proving he intentionally assaulted a child and caused bodily harm that was greater than transient physical pain or minor temporary marks and that he had previously engaged in a pattern or practice either of (i) assaulting the child, resulting in bodily harm that is greater than transient pain or minor temporary marks, or (ii) caused the child physical pain or agony equivalent to that produced by torture. RCW 9A.36.130(1)(b).
The jury heard evidence that Conlee had previously assaulted AH by lifting her from the floor by her neck until she could "[h]ardly" breathe. RP (May 11, 2005) at 96. A therapist described extensive facial bruising, both recent and old. Dr. Burke testified that he ordered a cranial CT scan because of severe injuries. Both AH and Dr. Burke testified that the burn scarred her forearm. AH also testified that Conlee inflicted the burn by flicking cigarette ashes on her after picking her up by the neck.
Reviewing the evidence in a light most favorable to the State, sufficient evidence shows that Conlee assaulted AH in the past in a manner that either resulted in bodily harm greater than transient pain or minor temporary marks or caused her physical pain equivalent to torture. Conlee's sufficiency argument fails.
Sentencing Applying RCW 9.94A.535
Conlee next contends that the trial court erred in applying the version of RCW 9.94A.535, effective April 15, 2005, and the procedures outlined in RCW 9.94A.537 at sentencing. We review questions of law de novo. State v. Beaver, 148 Wn.2d 338, 344, 60 P.3d 586 (2002).
Conlee argues that because new sentencing guidelines took effect after he committed the alleged assault, the trial court should have used the pre-Blakely procedures in effect when he committed the crime. Conlee asserts that the saving clause statute, RCW 10.01.040, bars retroactive application of RCW 9.94A.535. He submits, arguendo, that if the saving clause statute does not apply, we cannot consider RCW 9.94A.535 remedial, and therefore retroactive, because it altered his sentencing expectations and increased the scope and nature of evidence presented at trial.
Saving Clause Statute — RCW 10.01.040
The saving clause statute, RCW 10.01.040, preserves a potential or pending prosecution from being abated, perhaps inadvertently, by the legislature's later act of repealing or amending the substantive law defining the offense or fixing its penalty. State v. Kane, 101 Wn. App. 607, 611, 5 P.3d 741 (2000). By its terms, however, this statute saves only substantive rights and liabilities of a repealed statute. State v. Hodgson, 108 Wn.2d 662, 669-70, 740 P.2d 848 (1987). Because this statute is in derogation of the common law, we strictly construe it. Kane, 101 Wn. App. at 612.
According to Conlee, the saving clause statute required the trial court to sentence him based on the law in effect at the time he committed the crime. Essentially, he is claiming that in the wake of Blakely, the saving clause statute precludes him from receiving a sentence outside the presumptive sentencing range.
But Blakely did not declare former RCW 9.94A.535 facially unconstitutional. 542 U.S. at 308. State v. Hughes, 154 Wn.2d 118, 134, 110 P.3d 192 (2005), overruled on other grounds by Washington v. Recuenco, ___ U.S. ___, 126 S. Ct. 2546, 165 L. Ed. 2d 466 (2006). Instead, Blakely required a jury to find any fact that increases the penalty for a crime, other than a prior conviction or stipulated facts, beyond a reasonable doubt before a judge imposed an exceptional sentence outside the presumptive range, undermining the validity of our former procedure for issuing exceptional sentences. Blakely, 542 U.S. 303-04; Hughes, 154 Wn.2d at 132.
Conlee bases his argument on the classification of RCW 9.94A.535 as a penal statute, silent as to legislative intent for retroactivity. He likens his case to Kane. In Kane, an amendment to sentencing laws allowed Kane to be eligible for a different sentence not available to him at the time he committed his crime. 101 Wn. App. 609. But unlike Kane, Conlee was eligible for the exceptional sentence before and after the amendment of RCW 9.94A.535. The sentencing guideline amendments do not alter the possible sentences available to him. Rather, the amendments alter the procedure in which the trial court decides if aggravating factors exist. This procedure inures to Conlee's benefit. As the saving clause statute saves only substantive rights and liabilities of a repealed statute, it does not apply to the procedural change outlined in RCW 9.94A.535.
Instead, Conlee's situation is more like that in Hodgson. In Hodgson, we held that when the legislature extended a criminal statute of limitation, the new limitation period applied to offenses pending and not already time-barred when the new enactment became effective. 108 Wn.2d at 666-67. In its holding, the Hodgson court noted that the saving clause statute did not affect its determination because it saves "only substantive rights and liabilities of a repealed statute." 108 Wn.2d at 669-70.
Based on the holdings in these cases, the saving clause statute does not apply to this procedural change in the law. RCW 9.94A.535 did not alter Conlee's substantive rights. At the time he committed the act charged, he was subject to an exceptional sentence based on aggravating circumstances. The only difference in RCW 9.94A.535 is a procedural one and, notably, one that inures to his benefit. Because the saving clause statute does not apply to the procedural change outlined in RCW 9.94A.535, Conlee's argument is not persuasive. The trial court did not err in applying the sentencing procedures required in RCW 9.94A.535.
Moreover, even if we accepted Conlee's claim that the saving clause statute required the trial court to apply the law in effect at the time he committed the assault, the trial court properly exercised its discretion in imposing his exceptional sentence by providing him with greater procedural process in light of the Blakely holding.
Remedial Nature of Post-Blakely Amendments
Alternatively, Conlee suggests that RCW 9.94A.535 is not remedial and therefore is not retroactive. He also suggests the trial court violated his due process rights by applying the procedural guidelines outlined in RCW 9.94A.535 and .537.
We generally presume statutes to apply prospectively, absent some legislative indication to the contrary. State v. McClendon, 131 Wn.2d 853, 861, 935 P.2d 1334 (1997). In criminal cases, "[p]rospective application of criminal statutes generally means application to offenses committed on or after the effective date of the statute." State v. Humphrey, 139 Wn.2d 53, 55, 983 P.2d 1118 (1999).
But if the statute is remedial in nature, we favor a presumption of retroactivity. State v. Blank, 131 Wn.2d 230, 248, 930 P.2d 1213 (1997). As a general rule, we will retroactively apply a statutory amendment if it is clearly curative or remedial, even though it is silent as to legislative intent for retroactive application. Kane, 101 Wn. App. at 613.
We deem a statute remedial when it relates to practice, procedure or remedies, and does not affect a substantive or vested right. Humphrey, 139 Wn.2d at 62. We apply an amendment retroactively only when doing so would further the remedial purpose. Humphrey, 139 Wn.2d at 62. We look to the effect, not the form of the law, when deciding if the amendment is remedial. Humphrey, 139 Wn.2d at 63.
Here, the amendments to RCW 9.94A.535 and the addition of RCW 9.94A.537 were procedural. They did not impose an additional penalty or increase the quantum of punishment the State could impose on violators of the law. The amendments merely changed the method for determining a defendant's sentence. The amendments relate to the procedure by which a trial court imposes an exceptional sentence outside the presumptive sentencing range. Therefore, the statute is remedial. Based on the presumption that courts should apply a remedial statute retroactively when it does not affect a substantive right, the trial court did not err in applying the guidelines of RCW 9.94A.535.
Timing Statute — RCW 9.94A.345
In further support of his claim that the trial court erred in applying RCW 9.94A.535 and the procedures outlined in RCW 9.94A.537, Conlee argues that the timing statute, RCW 9.94A.345, applies. He asserts that the timing statute prohibited the trial court from applying the procedural guidelines outlined in RCW 9.94A.535 and .537.
When a statute is ambiguous, we resort to principles of statutory construction, legislative history, and relevant case law to assist in interpretation. State v. Watson, 146 Wn.2d 947, 955, 51 P.3d 66 (2002). An ambiguous statute is one which different parties can reasonably interpret in more than one way. State v. Roggenkamp, 153 Wn.2d 614, 621, 106 P.3d 196 (2005). In construing statutes, we must discern and give effect to the legislature's intent. Watson, 146 Wn.2d at 954.
RCW 9.94A.345 states: "Any sentence imposed under this chapter shall be determined in accordance with the law in effect when the current offense was committed." The legislative intent behind this statute shows that the basis for it is inapposite to his claim. According to the statutory note, the legislature intended RCW 9.94A.345 to cure any ambiguity as to what law to use when calculating a convicted defendant's offender score for purposes of sentencing. See Laws of 2000, ch. 26, A § 1. Conlee's assertion that this statute should preclude the trial court from complying with a procedural statute to cure constitutional defects in sentencing is misplaced. Vagueness Challenge of RCW 9.94A.535(3)(b) and (n) Next, Conlee asserts that his exceptional sentence resulted from jury findings based on vague criteria. We presume a statute is constitutional unless the challenging party shows it unconstitutional beyond a reasonable doubt. State v. Aver, 109 Wn.2d 303, 306-07, 745 P.2d 479 (1987).
Because the statute is procedural and applies retroactively, we do not address Conlee's ex post facto argument. Dobbert v. Florida, 432 U.S. 282, 293, 97 S. Ct. 2290, 53 L. Ed. 2d 344 (1977).
A vagueness analysis encompasses two due process concerns. State v. Baldwin, 150 Wn.2d 448, 458, 78 P.3d 1005 (2003). First, criminal statutes must be specific enough that citizens have fair notice of what conduct the legislature proscribes. Baldwin, 150 Wn.2d at 458. Second, laws must provide ascertainable standards of guilt to protect against arbitrary arrest and prosecution. Baldwin, 150 Wn.2d at 458.
Sentencing guideline statutes do not define conduct nor do they allow for arbitrary arrest and criminal prosecution by the State. Baldwin, 150 Wn.2d at 459. They do not inform the public of the penalties attached to criminal conduct nor do they vary the statutory maximum and minimum penalties assigned to illegal conduct by the legislature. Baldwin, 150 Wn.2d at 459. Laws that dictate particular decisions given particular facts can create a liberty interest, but laws granting a significant degree of discretion cannot. Baldwin, 150 Wn.2d at 460. Thus, the due process considerations that underlie the void-for-vagueness doctrine have no application in the context of sentencing guidelines. Baldwin, 150 Wn.2d at 459.
Conlee first requests that we overrule Baldwin due to inconsistencies with Blakely. We decline is invitation as our state Supreme Court holdings constitute binding authority that we may not overrule. State v. Williams, 93 Wn. App. 340, 344, 968 P.2d 106 (1988).
The sentencing factors presented to the jury outlined in RCW 9.94A.535(3)(b) and (n) do not create a liberty interest subject to a void-for-vagueness review. In light of Blakely, the trial court still maintains discretion to impose an exceptional sentence. Because nothing in the challenged guidelines required a certain outcome, they did not create a protected liberty interest. Void-for-vagueness review does not apply to them, and Conlee's argument fails.
Judicial Fact finding
Finally, Conlee contends that the trial court made an independent finding that aggravating factors existed, violating the principles outlined in Blakely. He bases his claim on an inaccurate reading of the record.
Conlee misinterprets the trial court's explanation of its exercise of discretion as an independent finding. The jury returned special verdicts, unanimously finding beyond a reasonable doubt that he abused a position of trust in assaulting AH and that she was particularly vulnerable. After the jury found these aggravating circumstances present, the trial court explained:
Because the jury found abuse of trust and that she was a particularly vulnerable victim, the court may, and I believe in this case should, impose an exceptional sentence, given the nature of the offense I find substantial and compelling reasons in the fact that defendant did have a position a position of trust, allowing him to live with the victim, and this position of trust gave him ready access to her and that made the commission of the crime easier.
Also, she was vulnerable in that she's not just a normal 8 year old child. She had significant mental health issues and was heavily medicated and was suicidal. I find that those factors made the victim more vulnerable and allowed the defendant to take advantage of those. And the jury having found the commission of the offense, and the fact that the child initially denied the offense and tried to put the blame on herself, as she was told to do by defendant, indicates that defendant had control and power over her.
RP (June 17, 2005) at 12-13.
The trial court did not substitute its judgment for the jury's. It sentenced Conlee to an exceptional sentence after the jury found aggravating circumstances existed and properly exercised its discretion according to RCW 9.94A.535 and Blakely.
Affirmed.
A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.06.040, it is so ordered.
We concur:
Houghton, C.J.
Hunt, J.
Van Deren, J.