Opinion
No. 31582-3-II
Filed: March 30, 2005 UNPUBLISHED OPINION
Appeal from Superior Court of Kitsap County. Docket No. 03-1-00815-8. Judgment or order under review. Date filed: 02/27/2004. Judge signing: Hon. Leonard W. Costello.
Counsel for Appellant(s), Eric Michael Fong, Rovang Fong Associates, 569 Division St Ste a, Port Orchard, WA 98366-4600.
Anton Laurens Knappert, Attorney at Law, 569 Division St Ste E, Port Orchard, WA 98366-4600.
Counsel for Respondent(s), Russell Duane Hauge, Kitsap County Prosecutors Office, Msc 35, 614 Division St, Port Orchard, WA 98366-4681.
Jeffrey Scott Jolibois appeals his reckless driving conviction resulting from a trial in which the jury also convicted him of attempting to elude a pursuing police vehicle. He argues that (1) the reckless driving conviction violates the double jeopardy clause; (2) if double jeopardy does not apply, the evidence was insufficient to support the reckless driving conviction; and (3) a special verdict form the jury completed improperly asked the jury to determine a legal, rather than a factual issue. Because the reckless driving and attempting to elude actions occurred at distinct times, we reject Jolibois's double jeopardy argument. Holding that the evidence was sufficient to support the reckless driving conviction and that the special verdict was appropriate, we affirm.
FACTS I. Reckless Driving and Eluding
Between 5:30 and 6:00 a.m., on June 7, 2003, Deputy Eric Janson was stopped on the side of the roadway in Gorst, Washington, near the interchange between Highways 16, 3, and 166, when he noticed a car drive by at a high speed. Janson pulled out and started to follow so he could pace the care and determine how fast it was going. At a speed of approximately 105 miles per hour, it took Janson 20 to 25 seconds to catch up with the speeding car.
Once he caught up, Janson paced the car at approximately 90 miles per hour and followed as it exited Highway 16 onto Highway 166. The posted speed limit in that area was 50 miles per hour. After following the car approximately one-half mile on Highway 166, Janson activated his emergency lights and siren, but the car, driven by Jolibois, did not brake or attempt to pull over.
Attempting to radio for assistance, Janson followed Jolibois down Highway 166 and around Ross Point. Jolibois then slowed down `a bit' and turned into a gas station. Rather than stopping, Jolibois made a U-turn and headed back toward Gorst, looking directly at Janson as he passed by the patrol car. Janson continued to follow as Jolibois headed back down the highway, exceeding the posted speed limit. Assisted by other officers, Janson eventually stopped the vehicle and arrested Jolibois.
According to Janson, (1) the entire pursuit lasted approximately three minutes; (2) driving at speeds of approximately 90 miles per hour on these roads was dangerous because of the nature of the roadway and the curves in the road; and (3) Jolibois's speed posed a danger to the other vehicles on the same road, even though the roadway was dry and it was not dark during the pursuit. According to other officers, there were approximately three or four cars going each way on the roadway when they joined the pursuit and traffic was `medium.'
II. Procedure
The State charged Jolibois with attempting to elude a pursing police vehicle and reckless driving.
The State also charged Jolibois with second degree assault. Because the jury acquitted on that charge, the assault charge has no bearing on this appeal.
Jolibois moved to dismiss the reckless driving charge, arguing that it violated double jeopardy. The State responded that the two charges were distinct offenses because the reckless driving charge was based on Jolibois's actions before the deputy signaled him to stop, and the attempting to elude charge was based on Jolibois's actions after the deputy signaled him to stop. To ensure the jury would understand the distinction, the prosecutor proposed giving it the following special verdict form: Did the defendant commit the crime of reckless driving as charged in Count II before the police officer attempted to stop the defendant's vehicle by giving a signal to stop, using either hand, voice, emergency light, or siren?
Report of Proceedings (2/11/04) at 86.
Jolibois argued the evidence was insufficient to show that he had been driving recklessly before the deputy signaled him to stop.
The trial court denied Jolibois's motion but invited him to renew the motion at the close of the State's case.
After the State rested, Jolibois renewed his motion to dismiss, arguing that the State's only evidence of reckless driving, separate from the eluding incident, was that Janson thought Jolibois was speeding when he first saw him and that this was insufficient to establish two separate incidents. The trial court again denied Jolibois's motion to dismiss.
The jury found Jolibois guilty of attempting to elude and reckless driving. It also responded `yes' to the State's special verdict described above.
Jolibois appeals.
ANALYSIS I. Double Jeopardy
Jolibois contends the trial court erred in refusing to dismiss the reckless driving charge, which subjected him to double jeopardy when he was convicted of both attempting to elude and reckless driving. We disagree.
One function of the double jeopardy clause of the Fifth Amendment is to prevent the State from imposing multiple punishments for the same offense. State v. Gocken, 127 Wn.2d 95, 100, 896 P.2d 1267 (1995). When a defendant is convicted under more than one statute, double jeopardy applies if the offenses are (1) legally identical, and (2) based on the same act or transaction. State v. Adel, 136 Wn.2d 629, 632-33, 965 P.2d 1072 (1998); see also Gocken, 127 Wn.2d at 101 (quoting Blockburger v. United States, 284 U.S. 299, 304, 76 L. Ed. 306, 52 S. Ct. 180 (1932)). We address both prongs.
The State constitutional rule against double jeopardy, Wash. Const. art. I, sec. 9, offers the same protection as its federal counterpart. State v. Gocken, 127 Wn.2d 95, 107, 896 P.2d 1267 (1995).
When a defendant is convicted of multiple convictions of the same statute, we apply a different test and review the statute to determine what `unit of prosecution' the legislature intended as the punishable act. State v. Adel, 136 Wn.2d 629, 633-34, 965 P.2d 1072 (1998).
A. Legally Identical
First, we accept the State's concession that the charges here are legally identical. Offenses are legally identical unless `each offense contains an element not contained in the other.' Gocken, 127 Wn.2d at 101.
The version of the attempting to elude statute in effect on June 7, 2003, provided in part:
Although the legislature amended this statute in 2003, Laws of 2003 ch. 101 sec. 1, the amendment did not take effect until July 27, 2003, and does not apply here.
Any driver of a motor vehicle who willfully fails or refuses to immediately bring his vehicle to a stop and who drives his vehicle in a manner indicating a wanton or willful disregard for the lives or property of others while attempting to elude a pursuing police vehicle, after being given a visual or audible signal to bring the vehicle to a stop, shall be guilty of a class C felony.
Former RCW 46.61.024(1) (1983) (emphasis added). The reckless driving statute, RCW 46.61.500(1), provides in part: `Any person who drives any vehicle in willful or wanton disregard for the safety of persons or property is guilty of reckless driving.' (Emphasis added). Although attempting to elude contains an element not found reckless driving (willful failure or refusal to stop after being signaled to stop by an officer), reckless driving does not contain any element not found in the attempting to elude statute. In fact, reckless driving is a lesser included offense to attempting to elude. State v. Parker, 102 Wn.2d 161, 164-65, 683 P.2d 189 (1984). Therefore, the offenses are legally identical and we must next determine whether the offenses are based on the same act or transaction.
B. Same Act or Transaction
Jolibois argues that as in State v. Lopez, 79 Wn. App. 755, 904 P.2d 1179 (1995), disapproved of by Adel, 136 Wn.2d at 637-39, and State v. O'Connor, 87 Wn. App. 119, 940 P.2d 675 (1997), the actions that led to the two charges were part of a continuing course of conduct that cannot be broken down in to smaller units for charging purposes. We disagree.
Lopez addressed whether double jeopardy was implicated when Lopez was convicted of two counts of possession of cocaine with intent to deliver based on simultaneous possession of (1) cocaine sold to him in an undercover operation immediately before his arrest, and (2) cocaine purchased from another source already in his possession at the time of his arrest. Lopez, 79 Wn. App. at 760-62. The Lopez court held that because Lopez `possessed cocaine in a continuous, uninterrupted series of events that was the focus of the prosecution against him,' this amounted to a single act of possession and the two convictions violated double jeopardy. Lopez, 79 Wn. App. at 763. In doing so, it rejected the State's argument that these were two separate acts of possession because Lopez had obtained the cocaine at different times and places, stating: `While any event can be split into increasingly smaller units, `[t]he Double Jeopardy Clause is not such a fragile guarantee that prosecutors can avoid its limitations by the simple expedient of dividing a single crime into a series of temporal or spatial units." Lopez, 79 Wn. App. at 762 (quoting Brown v. Ohio, 432 U.S. 161, 169, 97 S. Ct. 2221, 53 L. Ed. 2d 187 (1977)).
But in Adel, our Supreme court clarified what appeared to be a disagreement among several cases from the appellate courts and rejected the analysis applied in Lopez, concluding that because Lopez had been convicted on two identical offenses, the appellate court should have applied the `unit of prosecution' test rather than the `same in law and fact test' it had applied. Adel, 136 Wn.2d at 637-39. Here, the State charged Jolibois with different statutory offenses; thus, Lopez is inapposite. O'Connor and Brown (the United States Supreme Court case relied on in Lopez), however, are more instructive.
Although O'Connor closely follows Lopez, the O'Connor court properly applied the `same in law and fact' test because the State had charged O'Connor under different statutory subsections. See Adel, 136 Wn.2d at 639. The State charged O'Connor with one count of possession with intent to deliver and one count of simple possession after the police found various amounts of methamphetamine in his left sock and his right front jacket pocket, and additional methamphetamine in a blue metal box on the floor of the car he was riding in. O'Connor, 87 Wn. App. at 121-22. After finding that the two charges were legally identical, this court determined that O'Connor's simultaneous possession of the methamphetamine, regardless of where it was located, constituted a single transaction and vacated the simple possession conviction. O'Connor, 87 Wn. App. at 126. As noted in Adel:
The court's reliance on Lopez when discussing whether the criminal conduct was one act or transaction simply recognized the similarity of the unit of prosecution inquiry and the same evidence analysis. In both contexts, a court should guard against the State's attempting to segment a singular criminal act to form the basis for multiple convictions.'
Adel, 136 Wn.2d at 640.
O'Connor is more instructive than Lopez, but it, too, is distinguishable from the current case. Even though O'Connor involved different statutory offenses, it involved the simultaneous commission of more than one related offense. In contrast, here, the two offenses, although related, were temporally distinct. Furthermore, the offenses here did not constitute an uninterrupted series of events similar to the continuing drug possession in O'Connor because the greater offense of attempting to elude could not have occurred without the intervening event of Janson signaling Jolibois to stop.
And, finally, although Brown is more on point than Lopez and O'Connor, it too can be distinguished. In Brown, the defendant stole a car from a parking lot in East Cleveland, Ohio on November 29, 1973. Brown, 432 U.S. at 162. After being arrested on December 8, 1973, in Wickliffe, Ohio, Brown pleaded guilty to a charge of joy riding occurring on or about December 8. Brown, 432 U.S. at 162. After his release from the Wickliffe conviction, he was charged in East Cleveland with theft of the car on or about November 29, 1973. Brown, 432 U.S. at 162-63. Brown had been in possession of the car between November 29, when the car was first taken, and December 8, when he was finally arrested. See Brown, 432 U.S. at 162.
Brown objected to the theft charge on the basis of former jeopardy, arguing that it was the same offense for which he had already been convicted. Brown, 432 U.S. at 163. The trial court rejected Brown's argument, and he pleaded guilty to the theft charge, preserving his right to raise his double jeopardy objections. Brown, 432 U.S. at 163. The Ohio Court of Appeals affirmed the conviction, holding that although the joy riding offense was a lesser included offense to theft, the two charges were not based on the same act or transaction. Brown, 432 U.S. at 163-64.
The United States Supreme Court agreed that the joy riding offense was a lesser included offense, but rejected the Ohio Court's conclusion that the two offenses were not based on the same act or transaction:
After correctly holding that joyriding and auto theft are the same offense under the Double Jeopardy Clause, the Ohio Court of Appeals nevertheless concluded that Nathaniel Brown could be convicted of both crimes because the charges against him focused on different parts of his 9-day joyride. We hold a different view. The Double Jeopardy Clause is not such a fragile guarantee that prosecutors can avoid its limitations by the simple expedient of dividing a single crime into a series of temporal or spatial units. The applicable Ohio statutes, as written and as construed in this case, make the theft and operation of a single car a single offense. Although the Wickliffe and East Cleveland authorities may have had different perspectives on Brown's offense, it was still only one offense under Ohio law. Accordingly, the specification of different dates in the two charges on which Brown was convicted cannot alter the fact that he was placed twice in jeopardy for the same offense in violation of the Fifth and Fourteenth Amendments.
Brown, 432 U.S. at 169-70 (citations and footnote omitted).
But, as in O'Connor, Brown also involved the simultaneous commission of more than one offense. As discussed above, here the offenses were not simultaneous, the second offense required an intervening act by the pursuing officer, the offenses were alleged to have occurred sequentially, and the special verdict ensured that the jury did not rely on the evidence related to the greater offense to convict on the lesser offense.
Because the offenses here did not constitute a continuous, uninterrupted series of events, we conclude that they were not the same act or transaction, and double jeopardy does not apply.
II. Sufficiency
Jolibois next contends that the evidence was insufficient to support his reckless driving conviction. Citing Schwendeman v. Wallenstein, 971 F.2d 313 (9th Cir. 1992), cert. denied, 506 U.S. 1052 (1993), and State v. Delmarter, 68 Wn. App. 770, 845 P.2d 1340 (1993), overruled on other grounds by State v. Brunson, 128 Wn.2d 98, 905 P.2d 346 (1995), he argues that the only evidence was that he was speeding and that this evidence alone was not enough to establish willful or wanton disregard for the safety of persons or property. We disagree.
Evidence is sufficient to support a conviction if, viewed in the light most favorable to the prosecution, it permits any rational trier of fact to find the essential elements of the crime beyond a reasonable doubt. State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992). `A claim of insufficiency admits the truth of the State's evidence and all inferences that reasonably can be drawn therefrom.' Salinas, 119 Wn.2d at 201.
In Schwendeman, a Washington vehicular assault case, the Ninth Circuit held that a jury instruction allowing the jury to infer reckless driving solely from the fact the defendant was speeding, without reference to any of the other evidence, violated the defendant's due process rights:
The instruction read:
A person who drives in excess of the maximum lawful speed at the point of operation may be inferred to have driven in a reckless manner. This inference is not binding upon you and it is for you to determine what weight, if any, such inference is to be given. Schwendeman, 971 F.2d at 315.
As we have said, there is ample evidence from which the jury could have found reckless driving. Schwendeman was driving an open-bed truck with passengers in the back at night down a road with potholes, swerving from side to side and exceeding the speed limit.
But [the] instruction [at issue] isolated speed as the only circumstance needed to permit the jury to find reckless driving and thereby convict Schwendeman. The jury was told, in effect, that it could ignore all the other evidence, consider only the evidence of Schwendeman's speed, and if it found Schwendeman was exceeding the speed limit, that was enough to convict him not of speeding, but of reckless driving.
By focusing the jury on the evidence of speed alone, the challenged instruction erroneously permitted the jury to find an element of the crime of which Schwendeman was convicted without considering all the evidence presented at trial. We cannot say there is no reasonable possibility that the instruction did not materially affect the verdict.
Schwendeman, 971 F.2d at 316 (citation omitted). In Delmarter, this court rejected a similar instruction. Delmarter, 68 Wn. App. at 790. Although our Supreme Court later determined that the Delmarter court had applied the wrong standard of proof, it agreed that the instruction was error. See Brunson, 128 Wn.2d at 107-11 (rejecting the standard of proof applied in Delmarter).
But here, the jury was not instructed that it could infer reckless driving based solely on the fact that Jolibois exceeded the speed limit and disregard the other evidence. Accordingly, Schwendeman and Delmarter are inapposite. Moreover, the jury could reasonably conclude beyond a reasonable doubt that Jolibois's excessive speed (which was at least 40 miles per hour above the posted speed limit), coupled with the presence of other cars on the roadway, the fact Jolibois was driving in an area where three highways converged, and the curving nature of the roadway evidenced a willful or wanton disregard for the safety of others. Accordingly, the evidence was sufficient to support this conviction.
III. Special Verdict
Finally, Jolibois appears to argue that the special verdict allowed the jury to address the `legal' question of whether the attempting to elude and reckless driving were the same criminal conduct. We disagree.
Much of Jolibois's argument related to this issue seems to be a reiteration of his double jeopardy and sufficiency arguments addressed above.
The special verdict merely asked the jury to identify the basis of its reckless driving verdict to ensure that the verdict was based on the appropriate time period. This is a factual matter, not a legal question. Accordingly, this argument has no merit.
We affirm.
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.
ARMSTRONG, P.J., and VAN DEREN, J., concur.