Opinion
No. 33147-1-II.
November 14, 2006.
Appeal from a judgment of the Superior Court for Pierce County, No. 04-1-04304-4, Frederick W. Fleming, J., entered April 1, 2005.
Counsel for Appellant(s), Rebecca Wold Bouchey, Attorney at Law, Mercer Island, WA.
Counsel for Respondent(s), Todd Andrew Campbell, Pierce Co Pros Attorneys Ofc, Tacoma, WA.
Affirmed by unpublished opinion per Quinn-Brintnall, J., concurred in by Armstrong and Penoyar, JJ.
David Loveland was charged with attempting to elude a pursuing police vehicle, driving while intoxicated, and reckless driving. The jury found him guilty as charged. On appeal, Loveland does not challenge his conviction for driving while intoxicated. He challenges only his convictions for attempting to elude and reckless driving, arguing that (1) the evidence is insufficient to support both convictions and that (2) double jeopardy bars convictions for both of these charges.
Loveland also challenges his sentence, arguing that the trial court erred in failing to find that attempting to elude and reckless driving were the same criminal conduct and thus improperly included his reckless driving conviction when it calculated his offender score. Because double jeopardy is not offended and the evidence is sufficient to support the jury's verdicts, we affirm Loveland's convictions. Further, Loveland's offenses did not arise out of the same criminal conduct and the sentencing court did not err in including each in calculating Loveland's offender score.
FACTS Background
On September 7, 2004, a uniformed Puyallup police officer, Jacob Stringfellow, traveled eastbound in his police car on River Road, which had a 50 mile-per-hour speed limit. Officer Stringfellow saw Loveland's red Honda hatchback speeding down the westbound side of the road. Officer Stringfellow estimated Loveland's speed between 95 and 100 miles per hour. Officer Stringfellow switched on his radar detector, which read Loveland's speed at 101 miles per hour. River Road is a four-lane road with two lanes going each direction, separated by a single turn lane down the middle and intersected by numerous access roads. During the incident, medium traffic flowed in both directions and numerous vehicles traveled near Loveland's hatchback.
Officer Stringfellow, still in the eastbound lane with Loveland in front of him traveling westbound, activated his emergency lights and sirens. He then made a u-turn, placing his vehicle into the westbound lane approximately five to seven car lengths behind Loveland's hatchback. Immediately after making the u-turn, Officer Stringfellow drove behind Loveland's hatchback at about 70 to 100 miles per hour and Officer Stringfellow saw the hatchback brake and slow down, but then speed up again. Because Officer Stringfellow did not see anything in front of Loveland's vehicle that would cause Loveland to change his speed, he reasoned that Loveland's conduct was in direct response to his having activated his lights and sirens and making a u-turn. Loveland continued speeding down River Road for about two miles, negotiating the traffic in front of him by passing vehicles in both lanes and switching lanes back and forth. All the while, Officer Stingfellow was behind him continuously with his police lights and siren activated.
Officer Stringfellow made the u-turn just when Loveland would have been passing him, bringing their vehicles virtually side by side when he initiated the u-turn.
Loveland eventually came to a stop-light controlled intersection with Officer Stringfellow directly behind him. The light was red and traffic was stopped. Officer Stringfellow still had his lights and siren activated. The traffic light turned green and Officer Stringfellow noticed that some drivers appeared confused, with some stopping, others trying to pull over, and others trying to move forward. Loveland, with some difficulty because of other vehicles, proceeded forward through the intersection. Traffic was still in front of him. Loveland proceeded forward a little, then pulled over abruptly, half in and half out of a lane, then finally stopped.
To Officer Stringfellow, Loveland's state of intoxication was obvious because he smelled of alcohol, slurred his speech, and had bloodshot eyes and droopy eyelids. Upon questioning, Loveland stated that he had had several beers while fishing.
Loveland testified that he had consumed two beers.
Procedure
The State charged Loveland with attempting to elude a pursuing police vehicle, count I; driving under the influence of intoxicants, count II; and reckless driving, count III.
RCW 46.61.502(1)(b), (c).
At trial, Loveland testified in his own defense. He admitted driving between 70 to 80 miles per hour down River Road for approximately two miles, changing lanes to get around traffic, and having a couple of beers while fishing. But he asserted that he did not hear Officer Stringfellow's police siren because he was playing music in his car and said he pulled over immediately after he knew that Officer Stringfellow was signaling for him to do so.
The jury found Loveland guilty as charged and the trial court sentenced him to five months for count I, allowing any in-patient treatment program time to be credited toward the five-month sentence. The trial court also imposed concurrent 365-day suspended sentences on counts II and III, with credit for two days already served. As a condition of the suspended sentence, the trial court prohibited Loveland from having any alcohol-related offense for five years.
Loveland appeals.
This appeal requires that we address three issues: (1) whether sufficient evidence supports Loveland's convictions for attempting to elude a pursing police vehicle and reckless driving; (2) whether Loveland's convictions for both attempting to elude a police vehicle and reckless driving violate double jeopardy; and (3) whether the trial court abused its discretion by failing to find that attempting to elude a police vehicle and reckless driving were the same criminal conduct for purposes of calculating Loveland's offender score.
ANALYSIS Sufficiency of the Evidence
Loveland maintains that the evidence is insufficient on both counts I and III to support the jury's guilty verdict. Regarding the attempting to elude conviction, he argues that insufficient evidence supported the element of "willful failure to stop" because he testified that he did not see the officer and pulled his car to the side of the road shortly after he noticed the police car. Regarding both the attempting to elude conviction, count I, and the reckless driving conviction, count III, he argues that insufficient evidence supported that he drove recklessly because the prosecution presented evidence only that he drove at an excessive speed.
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. Circumstantial evidence and direct evidence are equally reliable. State v. Delmarter, 94 Wn.2d 634, 638, 618 P.2d 99 (1980). We defer to the trier of fact on issues of conflicting testimony, credibility of witnesses, and the persuasiveness of the evidence. State v. Walton, 64 Wn. App. 410, 415-16, 824 P.2d 533, review denied, 119 Wn.2d 1011 (1992).
Attempting to Elude a Pursuing Police Vehicle
In order to convict Loveland of attempting to elude a pursuing police vehicle, the State was required to prove that (1) Loveland willfully failed or refused to immediately bring his vehicle to a stop after a police officer gave him a visual or audible signal to stop by hand, voice, emergency light, or siren; (2) Loveland drove his vehicle in a reckless manner while attempting to elude a pursuing police vehicle; and (3) the officer giving such a signal was in uniform and the vehicle was equipped with lights and sirens when the officer signaled Loveland to stop. RCW 46.61.024. Loveland challenges the sufficiency of the evidence to support that he willfully failed to stop and that he drove in a reckless manner.
Sufficient evidence supports the jury's finding that Loveland willfully failed to stop. Officer Stringfellow first saw Loveland speeding toward him at 95 to 101 miles per hour. He signaled Loveland to stop by activating his lights and sirens and made a u-turn to pull behind Loveland. Loveland immediately braked but then sped up. Loveland continued to speed, changing lanes and weaving in and out of traffic for two miles while Officer Stringfellow followed him with his lights flashing and sirens blaring. Loveland did not stop. Loveland claimed that he stopped immediately upon noticing that the officer was behind him, but the jury was entitled to disbelieve Loveland's testimony on this point and we do not revisit credibility determinations on appeal. State v. Camarillo, 115 Wn.2d 60, 71, 794 P.2d 850 (1990). Based upon this evidence, any rational trier of fact could find beyond a reasonable doubt that Loveland willfully failed to stop after being directed to do so, as the statute required.
Sufficient evidence also supports the jury's finding that Loveland was driving recklessly, here defined as "in a rash or heedless manner, indifferent to the consequences." Clerk's Papers (CP) at 42. Loveland drove at speeds between 70 to 101 miles per hour in a 50 mile-per-hour zone while switching lanes and weaving in and out of traffic. Loveland was also intoxicated, smelled of alcohol, and had bloodshot eyes and slurred speech. From this evidence, a rational trier of fact could find beyond a reasonable doubt that Loveland drove recklessly while attempting to elude Officer Stringfellow.
Loveland also disputes the definition of "reckless manner," but he did not object to the definitional jury Instruction No. 8, and a jury instruction to which no objection is made becomes the law of the case. State v. Hickman, 135 Wn.2d 97, 102, 954 P.2d 900 (1998). So we review the sufficiency of the evidence based on the definition contained in Instruction No. 8.
Reckless Driving
To prove that Loveland drove recklessly in violation of RCW 46.61.500, the State was required to prove that he drove his vehicle "in willful or wanton disregard for the safety of persons or property." The jury was instructed that for reckless driving "willful" means "acting intentionally and purposely, and not accidentally or inadvertently" and that "wanton" means "acting intentionally in heedless disregard of the consequences and under such surrounding circumstances and conditions that a reasonable person would know or have reason to know that such conduct would, in a high degree of probability, harm a person or property." CP at 51; State v. Hickman, 135 Wn.2d 97, 102, 954 P.2d 900 (1998) (jury instructions not objected to become the law of the case).
Loveland again argues that insufficient evidence supports the jury's verdict that he was driving recklessly before Officer Stringfellow made the u-turn and signaled him to pull over. But Officer Stringfellow placed Loveland's speed at between 95 and 101 miles per hour, using his professional expertise and a radar detector. The stretch of River Road where Loveland drove has numerous intersecting access roads, several of which lead to soccer and other play fields. Drivers frequently enter River Road via these access routes believing traffic is traveling at the posted 50 mile-per-hour limit. Such drivers would be in immediate danger from a driver, such as Loveland, who was traveling at nearly double the posted speed limit. Further, there was medium traffic on River Road in both directions that day and numerous vehicles near Loveland's hatchback as he drove at an excessive speed, weaving in and out of traffic, while intoxicated. Taking this evidence in the light most favorable to the State, sufficient evidence supported a showing that Loveland drove with willful or wanton disregard for the safety of persons or property because any reasonable person could find that Loveland's behavior created a high risk of harm to people or property traveling along that road.
Double Jeopardy
Nevertheless, Loveland argues that his right to be free from double jeopardy was violated by his conviction for reckless driving and eluding because the two crimes are legally identical and based on the same action — his speeding on River Road on September 7, 2004. He also argues that the trial court erred by (1) failing to merge the two convictions and (2) including one point for each conviction when calculating his offender score.
The double jeopardy clause prevents the State from imposing multiple punishments for the same offense. U.S. Const. amend. V; State v. Gocken, 127 Wn.2d 95, 100, 896 P.2d 1267 (1995). If a defendant is convicted of violating more than one statute, the double jeopardy clause prevents a defendant from being punished for each crime if the offenses are (1) legally identical and (2) based on the same act or transaction. State v. Adel, 136 Wn.2d 629, 632, 965 P.2d 1072 (1998); see also Gocken, 127 Wn.2d at 101 (quoting Blockburger v. United States, 284 U.S. 299, 304, 52 S. Ct. 180, 76 L. Ed. 306 (1932)).
The State constitutional rule against double jeopardy, article I, section 9, offers the same protection as its federal counterpart. State v. Gocken, 127 Wn.2d 95, 107, 896 P.2d 1267 (1995).
Here, we do not address whether the crimes are legally identical for double jeopardy purposes because, as charged, they were not based on the same act or transaction. The State charged Loveland with reckless driving for driving his car 95 to 101 miles per hour in a 50 mile-per-hour zone while weaving in and out of traffic. When Officer Stringfellow saw Loveland driving recklessly, he tried to stop and arrest Loveland and charge him with that completed offense. But Loveland did not stop. Instead, he attempted to avoid arrest by speeding off and trying to outrun Officer Stringfellow. For this conduct he was charged with attempting to elude a pursuing police vehicle. These were two separate offenses that occurred one after the other.
Further, the jury was instructed to consider the evidence of two separate offenses: (1) for reckless driving, it was to consider only the evidence of Loveland's driving before Officer Stringfellow made the u-turn; and (2) for attempting to elude, it was to consider only the evidence of Loveland's driving after Officer Stringfellow made the u-turn. The evidence of these crimes did not overlap. Therefore, Loveland's eluding conviction was not predicated on evidence of his reckless driving before Officer Stringfellow made the u-turn. The offenses were not the same act or transaction and did not violate Loveland's right to be free from double jeopardy.
Merger
Loveland's argument that his reckless driving and eluding convictions merge is also without merit. Merger is a doctrine of statutory interpretation used to determine whether the legislature intended to impose multiple punishments for a single act that violates several statutory provisions. State v. Vladovic, 99 Wn.2d 413, 419 n. 2, 662 P.2d 853 (1983). Because Loveland did not face multiple convictions for the same act, merger does not apply.
Same Criminal Conduct
Loveland argues that the trial court erred in failing to find that his attempting to elude conviction and his reckless driving conviction were the same criminal conduct under former RCW 9.94A.400. We asked the parties to submit additional briefing addressing whether Loveland's same criminal conduct challenge is moot because he has already completed his confinement for the gross misdemeanor reckless driving and felony attempt to elude a pursuing police vehicle convictions. We will first address whether the issue is moot.
Former RCW 9.94A.400 was recodified in 2001 as RCW 9.94A.589. Laws of 2001, ch. 10, § 6. We address his argument under RCW 9.94A.589(1)(a).
Mootness
Both parties contend that Loveland's sentencing challenge is not moot because Loveland may commit another crime in the future and, if convicted, he may have a higher offender score at sentencing based on the ruling here at issue. "A case is moot if a court can no longer provide effective relief." State v. Ross, 152 Wn.2d 220, 228, 95 P.3d 1225 (2004) (quoting State v. Gentry, 125 Wn.2d 570, 616, 888 P.2d 1105 (1995)). Ordinarily, a sentencing issue is moot when a defendant has served a sentence that was subject to appeal. See State v. Murray, 118 Wn. App. 518, 521, 77 P.3d 1188 (2003). But when the sentence may evoke collateral consequences, then the issue may not be moot.
We note that because reckless driving is a gross misdemeanor, Loveland's conviction for this crime will not be included in any future offender score calculation unless he is convicted of a specified felony traffic offense. Although we acknowledge that such recidivism is common, it is not inevitable. We believe the commission and conviction of future crimes is frequently too speculative to require review of an otherwise moot challenge to a completed sentence in all circumstances. Thus, we question whether the mere possibility that a defendant might commit a particular type of crime in the future is the type of consequence that always renders a challenge to a completed sentence reviewable.
Enumerated in RCW 9.94A.030(36)(a).
Loveland submits that this issue is not moot, even though he has completed his confinement, because the trial court's determination of same criminal conduct will have collateral consequences on his offender score. Indeed, a miscalculation in an offender score that will not impact a defendant until and unless he commits and is convicted of another offense may create the collateral consequence of a higher sentence for that hypothetical future conviction.
But the law does not always require courts to address issues that have or may have collateral consequences. Washington appellate courts previously refused to speculate as to possible or remote collateral consequences of sentencing. See, e.g., State v. Finch, 137 Wn.2d 792, 868, 975 P.2d 967, cert. denied, 528 U.S. 922 (1999); State v. Bowman, 36 Wn. App. 798, 807, 678 P.2d 1273, review denied, 101 Wn.2d 1015 (1984); State v. Briceno, 33 Wn. App. 101, 102, 651 P.2d 1093 (1982). Although we conclude that this issue is not moot, our conclusion rests upon the particular scenario here presented and not upon the simple argument that the trial.
Yet we hold that the circumstances here render review appropriate because a subsequent sentencing court would have no power to reexamine the original sentencing decision but would court's determination had a collateral consequence be bound, under particular circumstances, to increase the offender score based on the sentencing court's decision in this case. Thus, we review Loveland's same course of conduct challenge even though it is currently, and hopefully will remain, moot.
The issue likely will remain moot when, as here, the conviction at issue involves a gross misdemeanor that will not ordinarily be included in a future offender score calculation.
In one line of cases, Washington courts found that sentencing appeals were not mooted by the defendant's completion of confinement. For example, our Supreme Court in Born v. Thompson, 154 Wn.2d 749, 762-64, 117 P.3d 1098 (2005), held that a sentencing appeal was not moot, even though the defendant completed his confinement, because the finding that the defendant was charged with a violent act had potential collateral consequences attendant to that conviction that were sufficient to constitute future restraint. See also, Monohan v. Burdman, 84 Wn.2d 922, 925, 530 P.2d 334 (1975). And Division One of this court, in State v. Raines, 83 Wn. App. 312, 922 P.2d 100 (1996) (per curium), held that a case was not moot even though the appellant had served his entire sentence because the modified felony sentence that he challenged could potentially impact his future offender score. 83 Wn. App. at 315 (refraining from distinguishing between direct and collateral consequences), superseded by statute on other grounds as stated in State v. Jones, 118 Wn. App. 199, 76 P.3d 258 (2003).
But in Ross, our Supreme Court found that whether the defendant's offender score erroneously included an out-of-state offense comparable to a Washington offense was a moot issue because the defendant had completed his confinement and, at sentencing, the defendant expressly acknowledged that his criminal history properly included the out-of-state conviction. Ross, 152 Wn.2d at 228-29.
Born and Raines differ from Ross in one fundamental aspect — whether a subsequent sentencing court has the authority to revisit the sentencing issue. In Born and Raines, the defendants appealed sentencing issues for which only the original sentencing court had the authority to render a decision. But in Ross, the issue of whether to include or exclude an out-of-state conviction in calculating a defendant's offender score may be addressed anew by a court imposing a subsequent sentence. Thus, when the defendant completed his sentence, the appeal was moot. See Ross, 152 Wn.2d at 225, 228-29 (holding that the sentencing appeal was moot under former RCW 9.94A.360 (2001), which grants authority to a sentencing court to determine whether an out-of-state conviction applies to the current calculation of the defendant's offender score).
See Born, 154 Wn.2d at 763-64 (noting that RCW 10.77.090(1)(d)(i)(A)(II) would compel a future court to commit Born to a mental health facility in certain circumstances based upon the sentencing determination at issue in the present appeal); Raines, 83 Wn. App. at 315 (reasoning that the modified sentence at issue automatically resulted in the adjustment of Raines's last date of release, which in turn automatically affected the date that the conviction would "wash out" and would no longer count toward the defendant's offender score).
Thus, whether Loveland's appeal is moot turns on whether a subsequent sentencing court has the authority to revisit the issue of whether the two convictions constituted the same criminal conduct. A subsequent sentencing court is bound by the initial sentencing court's same criminal conduct determination and may not revisit the issue. Thus, Loveland's appeal from the trial court's same criminal conduct determination is not moot.
Here, a gross misdemeanor reckless driving conviction will affect Loveland's offender score and sentencing only if he is convicted of a specific type of offense in the future. Under RCW 9.94A.525, a prior conviction of a serious traffic offense automatically enhances a defendant's offender score at sentencing for certain types of felony crimes. RCW 9.94A.525(11). Reckless driving is a serious traffic offense. RCW 9.94A.030(36)(a). Thus, whether Loveland's gross misdemeanor reckless driving and felony attempt to elude convictions are the same criminal conduct for sentencing purposes has collateral consequences that, if error, cannot be corrected at any future sentencing and may impact the sentencing in a future case. See Born, 154 Wn.2d at 766. In that scenario, a sentencing court would have no power to redress Loveland's claim that his convictions did not constitute the same criminal conduct, and so we now review the issue.
RCW 9.94A.525(11) states:
If the present conviction is for a felony traffic offense count two points for each adult or juvenile prior conviction for Vehicular Homicide or Vehicular Assault; for each felony offense count one point for each adult and one point for each juvenile prior conviction; for each serious traffic offense, other than those used for an enhancement pursuant to RCW 46.61.520(2), count one point for each adult and one point for each juvenile prior conviction.
(Emphasis added.)
Offender Score
Loveland maintains that, had the trial court properly considered his convictions for reckless driving and attempting to elude as the same criminal conduct, his offender score would be one instead of two and accordingly his standard range sentence would have been lower.
Under RCW 9.94A.589(1)(a), separate current convictions count as prior convictions for purposes of calculating the offender score unless the court explicitly finds they are the same criminal conduct. Thus, the trial court implicitly determines that separate convictions are not the same criminal conduct when it does not explicitly find that they are the same criminal conduct. State v. Channon, 105 Wn. App. 869, 877, 20 P.3d 476, review denied, 144 Wn.2d 1017 (2001); State v. Anderson, 92 Wn. App. 54, 62, 960 P.2d 975 (1998), review denied, 137 Wn.2d 1016 (1999). "Same criminal conduct" here means two or more crimes that were both committed (1) with the same criminal intent; (2) at the same time and place; and (3) against the same victim. RCW 9.94A.589(1)(a). We narrowly construe determinations of same criminal conduct. State v. Porter, 133 Wn.2d 177, 942 P.2d 974 (1997). The absence of any one of these three factors precludes a finding of same criminal conduct. State v. Grantham, 84 Wn. App. 854, 858, 932 P.2d 657 (1997).
RCW 9.94A.589(1)(a) states:
[W]henever a person is to be sentenced for two or more current offenses, the sentence range for each current offense shall be determined by using all other current and prior convictions as if they were prior convictions for the purpose of the offender score: [But] if the court enters a finding that some or all of the current offenses encompass the same criminal conduct then those current offenses shall be counted as one crime.
(Emphasis added.)
Intent for purposes of determining the objective criminal intent refers to the offender's objective criminal purpose in committing the crime. State v. Flake, 76 Wn. App. 174, 180, 883 P.2d 341 (1994). In construing the "same criminal intent" prong, the court examines to what extent did the criminal intent, when viewed objectively, change from one crime to the next. State v. Tili, 139 Wn.2d 107, 123, 985 P.2d 365 (1999). This, in turn, can be measured in part by whether one crime furthered the other. State v. Vike, 125 Wn.2d 407, 411, 885 P.2d 824 (1994); State v. Williams, 135 Wn.2d 365, 368, 957 P.2d 216 (1998).
The objective criminal intent of attempting to elude a pursuing police officer is to avoid apprehension. Whatever Loveland intended when he drove recklessly before Officer Stringfellow saw him, it was not the same as his intent when he attempted to elude capture by Officer Stringfellow. When Stringfellow signaled Loveland to stop, Loveland had time to decide whether to stop his criminal activity (reckless driving), obey the police signal and pull over to the side of the road, or proceed to commit a further criminal act (attempting to elude). See Grantham, 84 Wn. App. at 859. When Loveland decided to speed up rather than pull over, his objective criminal purpose changed from that of driving recklessly to driving in an attempt to avoid apprehension by a pursuing police vehicle.
Loveland's crimes occurred at different times — one right after the other — and had different intents. Thus, the trial court did not err in including Loveland's reckless driving conviction when it calculated his offender score.
In sum, sufficient evidence supports the jury's verdict finding Loveland guilty of reckless driving and attempting to elude a pursuing police vehicle. Because the two offenses were not the same criminal conduct, the trial court properly punished Loveland for both and included Loveland's current reckless driving conviction in calculating his offender score at sentencing. There being no error, 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 PENOYAR, J., concur.