The opinion
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON,
No. 82997-1-I
Respondent,
DIVISION ONE
v.
UNPUBLISHED OPINION
JESSE CHRISTIAN ENGERSETH,
Appellant.
HAZELRIGG, J. — Jesse Engerseth appeals his convictions for murder in the
second degree and vehicular homicide, as well as the sentence imposed.
Engerseth assigns error to the trial court’s admission of an out-of-court statement
as a recorded recollection under ER 803(a)(5), and asserts the court failed to
properly consider the potentially mitigating factors of youthfulness at sentencing.
Finding no abuse of discretion in either the trial court’s decision to admit the
recorded recollection, or its imposition of a standard range sentence after
considering Engerseth’s youth, we affirm the convictions and sentence.
FACTS
On June 27, 2019, Jesse Engerseth parked his car outside the residence
of Michael Smith and Ashley McGinley in Everett. Smith asked Engerseth to leave
with his passengers, but he refused. Smith went back inside the residence,
retrieved a power drill, and pushed it into the driver’s door of Engerseth’s car.
Engerseth claimed he thought the object in Smith’s hand was a gun and drove
No. 82997-1-I/2
away. On the following day, June 28, Engerseth and Smith had another encounter
behind a store where Engerseth had been napping in his car. Engerseth later
testified he felt threatened by that interaction, and that he returned to Smith’s home
that night and threw a metal car jack at Smith’s car. After investigating the noise
caused by the car jack incident, Smith grabbed a stick from their home and left it
in his car, telling McGinley that he knew who had done it.
About 30 minutes after throwing the car jack, Engerseth returned to an area
near Smith’s residence. Shortly thereafter, Engerseth’s passenger alerted him that
Smith’s car was coming towards them. Engerseth later testified that Smith parked
his car, opened the driver’s door, and grabbed something off of the floorboard of
his car. Engerseth said he was frightened and quickly started his car before turning
his wheel hard to the left to avoid Smith’s vehicle. Engerseth testified that one of
the last things he remembered was accelerating and hearing a thud as Smith
swung a “baseball bat” at his car. Subsequently, the passenger told Engerseth he
had struck Smith with his car, but Engerseth stated he “was in denial” at the time
and did not stop driving. As a result of the collision, Smith suffered multiple severe
injuries including blunt force trauma to his head, which led to his death.
Engerseth went to Brooke Wilson’s house after the incident. Wilson
recalled Engerseth was “really upset and frantic and said he had got into an
accident and that he was really scared.” Sometime between 3:20 a.m. and 4:00
a.m. on June 29, police officers contacted Wilson. She provided a written
statement of her encounter with Engerseth. Engerseth was arrested and charged
with murder in the second degree, and vehicular homicide. He proceeded to trial
-2-
No. 82997-1-I/3
and testified in his own defense, claiming that he neither intended to scare nor hit
Smith. According to Engerseth, he “just wanted to get the hell out of there”
because he was scared of Smith.
Wilson’s written police statement was ultimately read to the jury as a
recorded recollection. At trial, Wilson was unable to recall writing the statement as
she had been under the influence of methamphetamine when she provided it to
police. In proceedings outside the presence of the jury, Wilson was shown the
statement and confirmed it was in her handwriting and contained her signature on
both pages. Wilson further noted the biographical information and email address
on her statement were accurate. She also reviewed the penalty-of-perjury
language included in the statement, which she attested to understanding.
The jury found Engerseth guilty on both counts. Based on his offender
score, the standard range sentence was determined to be 123-220 months for
murder in the second degree, and 15-20 months for vehicular homicide. Engerseth
requested an exceptional downward sentence of 60 months. He urged the court
to consider the potentially mitigating factors of youth in supporting a downward
departure from the standard range. While the court acknowledged its discretion to
impose a sentence below the standard range, and considered the 22-year-old
defendant’s youthfulness as a possible mitigating circumstance, the judge
determined the mitigation evidence did not warrant an exceptional sentence.
Accordingly, the court imposed a standard range sentence of 147 months for
murder in the second degree and 17 months for vehicular homicide.
Engerseth timely appealed.
-3-
No. 82997-1-I/4
ANALYSIS
I. Admission of Recorded Recollection
Engerseth first assigns error to the trial court’s decision admitting Wilson’s
written statement as a recorded recollection. He argues the statement was not
admissible because it failed to meet the reliability requirements of ER 803(a)(5).
The State responds that the trial court’s decision to admit Wilson’s statement was
not error because it was based on tenable grounds and supported by substantial
evidence.
We review evidentiary decisions, including the admission of statements
under ER 803(a)(5), for an abuse of discretion. State v. Alvarado, 89 Wn. App.
543, 548, 949 P.2d 831 (1998). An abuse of discretion occurs “when the trial
court's decision is manifestly unreasonable or based on untenable grounds or
reasons.” State v. Gonzales, 1 Wn. App. 2d 809, 819, 408 P.3d 376 (2017). “A
recorded statement given to police is inadmissible hearsay unless it qualifies for
an exception to the hearsay rule.” State v. Nava, 177 Wn. App. 272, 290, 311 P.3d
83 (2013). The exception for a “recorded recollection” is defined as:
A memorandum or record concerning a matter about which a witness
once had knowledge but now has insufficient recollection to enable
the witness to testify fully and accurately, shown to have been made
or adopted by the witness when the matter was fresh in the witness'
memory and to reflect that knowledge correctly. If admitted, the
memorandum or record may be read into evidence but may not itself
be received as an exhibit unless offered by an adverse party.
ER 803(a)(5).
For the evidence to be admissible under ER 803(a)(5), the following four
factors must be satisfied:
-4-
No. 82997-1-I/5
(1) the record pertains to a matter about which the witness once had
knowledge; (2) the witness has an insufficient recollection of the
matter to provide truthful and accurate trial testimony; (3) the record
was made or adopted by the witness when the matter was fresh in
the witness' memory; and (4) the record reflects the witness' prior
knowledge accurately.
Alvarado, 89 Wn. App. at 548 (citing State v. Mathes, 47 Wn. App. 863, 867-68,
737 P.2d 700 (1987)). The proponent of the evidence has the burden to establish
these foundational factors by a preponderance of the evidence. Nava, 177 Wn.
App. at 289-90. “The trial court’s preliminary finding,” as to whether the required
evidentiary foundation has been established, “will be upheld if supported by
substantial evidence.” State v. Benn, 120 Wn.2d 631, 653, 845 P.2d 289 (1993).
Substantial evidence is a “sufficient quantity of evidence in the record to persuade
a fair-minded, rational person of the truth of the finding.” State v. Hill, 123 Wn.2d
641, 644, 870 P.2d 313 (1994).
The first three foundational factors of ER 803(a)(5) are plainly supported by
substantial evidence. First, Wilson’s written statement addresses her experience
with Engerseth on the night of the incident. The statement shows that, at the time
it was written, Wilson attested to personal knowledge of her interaction with
Engerseth, and recalled what he had told her about hitting a man with his car.
Second, Wilson testified that she only vaguely recalled the incident with Engerseth
and, at the time of trial, her memory of the event was poor because she was “under
a lot of narcotics at the time.” While Wilson remembered Engerseth coming up to
her on the night of the incident and telling her that he was scared, she could not
remember writing the statement for police or the substance of what he said to her
about the incident. Third, Engerseth hit Smith with his car on June 28, 2019, and
-5-
No. 82997-1-I/6
Wilson’s written statement is dated June 29, 2019. Wilson confirmed on the record
that the date on her statement reflected it was written the “day after”1 she saw
Engerseth. Accordingly, this establishes she wrote the statement while the
interaction with Engerseth was fresh in her memory.
The fourth factor requires deeper analysis. As ER 803(a)(5) provides no
specific method to establish the accuracy of the witness’s prior knowledge, courts
examine the totality of the circumstances. Alvarado, 89 Wn. App. at 551. The
pertinent considerations include:
(1) whether the witness disavows accuracy; (2) whether the witness
averred accuracy at the time of making the statement; (3) whether
the recording process is reliable; and (4) whether other indicia of
reliability establish the trustworthiness of the statement.
Id. at 552. A recorded recollection may still be shown to accurately reflect the
witness's knowledge “without the witness'[s] direct averment of accuracy at trial.”
Id. at 551. If other reliable evidence shows that a statement accurately reflects the
witness’s prior knowledge, and the court articulates a reason, supported by the
record, for not believing the present disavowal, a recorded statement may still be
admissible even after a declarant directly disavows it. Nava, 177 Wn. App. at 294-
95.
Here, the trial court engaged in the proper analysis to determine whether
Wilson’s statement was admissible as a recorded recollection. First, the judge
noted Wilson did not specifically disavow the accuracy of the statement. While
Wilson testified that she would be concerned as to the accuracy of her statement,
she confirmed there was “absolutely” no other reason for this concern besides her
1 Wilson’s statement was given to police officers in the early morning hours of June 29.
-6-
No. 82997-1-I/7
intoxication at the time the statement was written and subsequent lack of memory.
The trial court stated that those considerations were “material for cross-
examination and may be gone into significantly.” Essentially, the jury could
consider those factors when making credibility determinations and deciding what
weight to give the statement.
Second, the trial court found that Wilson conceded the authenticity of the
statement, based on her testimony that she recognized her handwriting and
signature on both pages. Further, Wilson’s signatures were “below the declaration
portion on each of the two pages declaring facts contained in the two pages as
true.” Although Wilson also testified that the phone number listed on the statement
was incorrect, she confirmed the information regarding her date of birth, height,
weight, and email was accurate. She also verified her understanding of the
penalty-of-perjury language above her signature at the bottom of each page.
Third, because Wilson testified this was her own handwriting, the trial court found
the recording process reliable, explaining, “she wrote it out in her own hand, so
whatever she wrote, it's accurate as to how she wrote it.” Finally, the court
concluded the surrounding circumstances indicated the statement was generally
trustworthy, based in large part on testimony of one of the officers who noted that
they did not observe signs of impairment during their contact with Wilson. That
officer specifically said that Wilson appeared to be in control of her person,
understood why she was being contacted, was able to answer questions, and her
responses to the questions were appropriate.
-7-
No. 82997-1-I/8
Engerseth argues Wilson’s statement was unreliable due to her
methamphetamine use, which affected her memory. He provides a number of
articles in briefing regarding the impact of methamphetamine use on memory
function, but no such studies were presented to the trial court. Further, he appears
to aver that Wilson’s methamphetamine use at the time of the incident impacted
her ability to comprehend or recall what Engerseth purportedly conveyed to her
that night, such that the content of her statement is unreliable, and does not focus
on her ability at trial to recall the events.
Engerseth urges this court to follow State v. Keohokapu as persuasive
authority for considering the admissibility of recorded recollections made by those
with substance abuse problems. 127 Haw. 91, 107, 276 P.3d 660 (2012).
However, the case is factually distinguishable and unpersuasive here. In
Keohokapu, the State called a declarant to testify at sentencing about an incident
which took place over a decade before the offense. Id. at 97-98. The declarant
testified he had a drinking problem generally, and that he had been drinking heavily
on the night in question and could not remember whether the defendant had come
to his house. Id. at 97. The State showed the declarant the police report he had
filed concerning the incident, but he could not recall what happened. Id. at 97-98.
While he identified his handwriting and signature, as well as the date and time on
the report, he did not remember writing it. Id. The declarant was also unable to
remember an officer coming to his apartment on the night of the incident, and
“there was no other evidence that buttressed [his] account.” Id. at 107.
-8-
No. 82997-1-I/9
Accordingly, the court held the statement failed to meet the reliability requirements
for a recorded recollection and was admitted in error. Id.
While both Wilson and the declarant in Keohokapu struggled with substance
abuse at the time of their respective statements to police, and later memory
deficits, the circumstances of their written statements are distinct. Unlike the
declarant in Keohokapu, who could not recall seeing either a police officer or the
defendant on the night of the incident, Wilson testified she remembered seeing
both Engerseth and the officers shortly after the incident. Further, unlike the
evidence supporting Wilson’s statement, including the testimony of two officers
who stated she did not appear impaired when they questioned her, there was no
other evidence supporting the Keohokapu declarant’s record of the alleged
incident which occurred over a decade prior.
Our case law supports the trial court’s decision to admit Wilson’s recorded
recollection even though she could not remember writing it. In In Re Detention of
Peterson, Division Two of this court explained the distinction between the accuracy
of the recorded recollection generally and the credibility of the witness’s statement
itself. 197 Wn. App. 722, 728, 389 P.3d 780 (2017). Importantly, “a record can be
considered accurate for the purposes under ER 803(a)(5) even when a witness's
credibility is clearly questionable.” Id. at 729 (citing Alvarado, 89 Wn. App at 552-
53). Accordingly, a witness’s lack of memory surrounding a written statement goes
“to the weight of their statements, not their admissibility.” Nava, 177 Wn. App. at
297.
-9-
No. 82997-1-I/10
For example, in State v. Derouin, the witness provided a written statement
to police, but she testified at the trial that she could remember neither writing the
statement nor anything about the alleged incident. 116 Wn. App. 38, 41, 64 P.3d
35 (2003). Considering the totality of the circumstances, we held the recorded
recollection was sufficiently reliable and should have been admitted under ER
803(a)(5). Id. at 46-47. Similarly, in State v. White, we found no error in the trial
court’s admission of a recorded recollection from a witness who was “too
intoxicated” to recall whether the record accurately reflected what she had told
police. 152 Wn. App. 173, 185, 215 P.3d 251 (2009). Following the reasoning in
White, we decline to hold that Wilson’s statement is unreliable simply because she
was using methamphetamine at the time.
The trial court’s decision to admit Wilson’s statement as a recorded
recollection was not based on untenable grounds and was supported by
substantial evidence. Accordingly, we find no error.
A. Harmless Error Analysis
Engerseth avers Wilson’s statement was critical evidence to establish
intent, and without it, the outcome of his trial could have been different. The State
points to substantial evidence, beyond Wilson’s statement, that supports a finding
by the jury as to the intent element of the charges, and argues that, “within
reasonable probabilities, the trial’s outcome would not have differed had the
statement from Ms. Wilson not been read to the jury.” Even if we were to assume
that the trial court erred in admitting Wilson’s statement, any such error would have
been harmless.
- 10 -
No. 82997-1-I/11
“An error in admitting evidence that does not result in prejudice to the
defendant is not grounds for reversal.” State v. Bourgeois, 133 Wn.2d 389, 403,
945 P.2d 1120 (1997). When a trial court ruling violates a constitutional mandate,
the reviewing court applies the rigorous “harmless beyond a reasonable doubt”
test to determine whether reversal is warranted. Id. at 403. However, here, where
the evidentiary error does not constitute constitutional error, we apply the less-
stringent standard “that error is not prejudicial unless, within reasonable
probabilities, the outcome of the trial would have been materially affected had the
error not occurred.” State v. Tharp, 96 Wn.2d 591, 599, 637 P.2d 961 (1981).
“The improper admission of evidence constitutes harmless error if the evidence is
of minor significance in reference to the overall, overwhelming evidence as a
whole.” Bourgeois, 133 Wn.2d at 403.
Based on the charging document, for count 1, murder in the second degree,
the State was required to prove that Engerseth intended to commit an assault in
the second degree against Smith and, in furtherance of that crime or flight
therefrom, he caused Smith’s death. Even without Wilson’s recorded recollection,
the other evidence adduced at trial demonstrates that the outcome of this trial
would not have been materially affected.
Engerseth testified that, after hitting Smith with his car, he heard a “thud,”
and that his passenger told him that Smith had been hit. Another witness testified
Engerseth drove his car into Smith, which resulted in what sounded like a car
crash. Engerseth neither stopped nor called 911. Instead, he drove to a street
near Wilson’s house, left his car, went into Wilson’s residence, and put on a mask
- 11 -
No. 82997-1-I/12
to conceal his face. Further, after he was arrested, Engerseth agreed to speak
with officers and gave multiple conflicting accounts of the events. Initially, his story
was limited to one interaction between himself and Smith, which concluded when,
Engerseth asserted, Smith put a gun up to his car. Next, Engerseth acknowledged
throwing the car jack and subsequently being approached by Smith, but he claimed
that a second car had hit Smith. Later, he alleged not knowing whether he hit
Smith with his car, then claimed it was an accident, and ultimately asserted it was
self-defense. The State avers this evidence demonstrates Engerseth’s
consciousness of guilt.
The series of escalating encounters between Engerseth and Smith evinces
intent. The first ended with Smith grabbing a drill, which Engerseth thought was a
gun, and pushing it against Engerseth’s car door. In a store parking lot the
following day, Smith revved his engine and glared at Engerseth, who testified that
he felt, “Threatened, like [he] wasn’t safe anywhere.” In response, Engerseth told
law enforcement he decided to “send a message” to Smith by returning to Smith’s
residence and throwing a car jack at Smith’s car. Engerseth stated he knew Smith
would be looking for him that night. In fact, Smith did come looking for Engerseth
and was ultimately run over and died from his injuries.
Further, the testimony of expert witnesses supports a finding of Engerseth’s
intent. Based on Smith’s injuries, the medical examiner opined that he was struck
from the right side and possibly the back. A forensic scientist from the Washington
State Patrol Crime Lab testified that the tire impressions from both Engerseth’s car
and Smith’s pants were consistent with a tire rolling over someone’s leg. A jury
- 12 -
No. 82997-1-I/13
could reasonably conclude that this testimony supports a finding of intentional
assault, plainly contradicting Engerseth’s story of trying to escape from an attacker
and unknowingly or accidentally hitting Smith.
Considering the evidence of Engerseth’s intent to commit an assault,
Wilson’s written statement was of minor significance, and within reasonable
probabilities, the outcome of this trial would not have changed had the recorded
recollection not been admitted.
II. Consideration of Youthfulness at Sentencing
Engerseth next asserts the court failed to properly consider his “reduced
culpability as an emerging adult” at sentencing. Specifically, Engerseth argues the
sentencing court abused its discretion by not meaningfully considering
youthfulness as a possible mitigating factor.
We review a sentencing court’s decision for a “clear abuse of discretion or
misapplication of the law.” State v. Porter, 133 Wn.2d 177, 181, 942 P.2d 974
(1997). An abuse of discretion occurs when the trial court’s exercise of discretion
is “‘manifestly unreasonable or based upon untenable grounds or reasons.’” State
v. Darden, 145 Wn.2d 612, 619, 41 P.3d 1189 (2002) (quoting State v. Powell, 126
Wn.2d 244, 258, 893 P.2d 615 (1995)).
When faced with a discretionary sentencing decision, the trial court “must
meaningfully consider the [defendant’s] request in accordance with the applicable
law.” State v. McFarland, 189 Wn.2d 47, 56, 399 P.3d 1106 (2017). The State
properly notes in briefing that a sentence within the standard range may not be
appealed. RCW 9.94A.585(1). However, “this rule does not preclude a defendant
- 13 -
No. 82997-1-I/14
from challenging on appeal the underlying legal determinations by which the
sentencing court reaches its decision.” McFarland, 189 Wn.2d at 56. When a
defendant appeals such underlying legal determinations, our “review is limited to
circumstances where the court has refused to exercise discretion at all or has
relied on an impermissible basis for refusing to impose an exceptional sentence.”
State v. Garcia-Martinez, 88 Wn. App. 322, 330, 944 P.2d 1104 (1997). The trial
court errs when it: (1) fails to actually consider an exceptional sentence, (2)
“refuses categorically to impose an exceptional sentence below the standard range
under any circumstances,” or (3) “operates under the ‘mistaken belief that it did not
have the discretion to impose a mitigated exceptional sentence.’” Id. at 330;
McFarland, 189 Wn.2d at 56 (quoting In re Pers. Restraint of Mulholland, 161
Wn.2d 322, 333, 166 P.3d 677 (2007)).
In State v. O’Dell, our Supreme Court addressed whether a defendant’s
youthfulness could justify an exceptional sentence below the standard range if the
defendant was over 18 when the offense was committed. 183 Wn.2d 680, 689-
97, 358 P.3d 359 (2015). Less than two weeks after O’Dell turned 18, he had sex
with a 12-year-old girl, which led to his conviction for rape of a child in the second
degree. Id. at 683-84. At sentencing, O’Dell requested an exceptional sentence
below the standard range, raising his youthfulness as a mitigating circumstance.
Id. at 685. However, the trial court ruled that it “could not” consider youth as a
mitigating circumstance for a downward departure under the Sentencing Reform
Act (SRA).2 Id. at 685-86.
2 Ch. 9.94A RCW.
- 14 -
No. 82997-1-I/15
Upon review, our Supreme Court remanded for a new sentencing hearing,
concluding the trial court incorrectly ruled that it “could not” consider a defendant’s
youth at sentencing and thus failed to meaningfully consider O’Dell’s youth as a
possible mitigating factor. Id. at 689. The Court held that “a trial court must be
allowed to consider youth as a mitigating factor when imposing a sentence on an
offender like O'Dell, who committed his offense just a few days after he turned 18.”
Id. at 696. While youth can amount to a “substantial and compelling factor, in
particular cases,” the Court explained, “age is not a per se mitigating factor
automatically entitling every youthful defendant to an exceptional sentence.” Id. at
695-96.
Engerseth was convicted of count 1, murder in the second degree, and
count 2, vehicular homicide. Based on Engerseth’s offender score, these offenses
carried standard range sentences of 123-220 months and 15-20 months
respectively. While the State recommended a high-end sentence of 220 months
for count 1 and 20 months for count 2, Engerseth requested an exceptional
downward sentence of 60 months.
At the sentencing hearing, the trial court acknowledged its discretion in
deciding whether Engerseth’s sentence should be within the standard range. The
judge expressly stated:
The [c]ourt also has authority to take other factors into consideration
and go outside the standard range sentence. Youthfulness of the
offender is one such factor as are other factors which, based on
various facts surrounding convictions, can distinguish the
blameworthiness of a particular defendant's conduct from that
normally present in that particular crime.
- 15 -
No. 82997-1-I/16
Further, the court noted its careful consideration of Engerseth’s mitigation
evidence and stated, “I have the discretion based on Dr. Stanfill's report that Mr.
Engerseth's past childhood trauma and adolescent brain development limited his
capacity to appreciate his conduct.” After weighing the information provided, the
trial court found that the mitigating evidence was insufficient to justify a sentence
below the standard range:
While Mr. Engerseth had adverse childhood experiences and is less
mature than his chronological age and, therefore, of course, more
impulsive and susceptible to outside influences, he has also shown
an ability to stay mostly out of trouble with the courts until June 28,
2019. He is not disabled, and he has some family support in his
paternal grandparents that many young people we see in our courts
do not.
Although the court did not order an exceptional downward sentence, it did
recognize Engerseth’s youth, capacity for rehabilitation, and genuine remorse for
his actions as the reasons for imposing a sentence below the midpoint of the
standard range. Ultimately, the trial court sentenced Engerseth to 147 months for
murder in the second degree and 17 months for vehicular homicide. As the
sentences were to be run concurrently, the actual term of total confinement
ordered was 147 months.
The record shows no abuse of discretion, no failure to exercise discretion,
and no misapplication of the law at sentencing. While Engerseth argues the trial
court failed to meaningfully consider youthfulness as a mitigating factor at
sentencing, the record demonstrates the opposite. The mere fact that a trial court
declined a defense request for a downward departure does not, alone, mean that
the information presented was not meaningfully considered.
- 16 -
No. 82997-1-I/17
Engerseth relies on State v. Bassett, 192 Wn.2d 67, 428 P.3d 343 (2018),
and State v. Delbosque, 195 Wn.2d 106, 456 P.3d 806 (2020), to support his
contention that the trial court failed to meaningfully consider his youthfulness.
Neither case governs here, as both address juvenile defendants being
resentenced pursuant to Miller v. Alabama, 567 U.S. 460, 132 S. Ct. 2455, 183 L.
Ed. 2d 407 (2012). In Bassett, the State Supreme Court addressed juvenile life
without parole sentences, found that “children are less criminally culpable than
adults,” and held that it was unconstitutional to sentence a juvenile offender to life
without the possibility of parole. 192 Wn.2d at 90. In Delbosque, after receiving a
mandatory life sentence without the possibility of release, Delbosque was
resentenced to a minimum term of 48 years. 195 Wn.2d at 111. Our Supreme
Court noted that, “Bassett’s prohibition on juvenile life without parole sets a high
standard for concluding that a juvenile is permanently incorrigible.” Id. at 118. In
remanding for a new sentencing hearing, the Court held, “Miller hearings require
sentencing courts to meaningfully consider ‘mitigating factors that account for the
diminished culpability of youth,’ including ‘the youth's chances of becoming
rehabilitated.’” Id. at 120 (quoting RCW 10.95.030(3)(b)).
Engerseth was not a juvenile at the time he committed the offense; the
record establishes that he was 22-years-old. While youth may still be a mitigating
factor for individuals over the age of 18, O’Dell only went so far as to say “a trial
court must be allowed to consider youth as a mitigating factor” in such
circumstances. 183 Wn.2d at 696. Here, the trial court acknowledged its
discretion in considering Engerseth’s youthfulness as a mitigating factor to
- 17 -
No. 82997-1-I/18
potentially justify an exceptional sentence, but simply determined it was
insufficient. This decision was within the trial court’s discretion and was not based
on untenable reasons. Accordingly, the standard range sentence imposed on this
22-year-old offender is affirmed.
__
WE CONCUR:
- 18 -