Opinion
No. 31050-3-II
Filed: August 3, 2005 UNPUBLISHED OPINION
Appeal from Superior Court of Skamania County. Docket No: 02-1-00068-0. Judgment or order under review. Date filed: 10/30/2003. Judge signing: Hon. E. Thompson Reynolds.
Counsel for Appellant(s), David Schultz, Attorney at Law, 430 NE Everett, Camas, WA 98607-2115.
Counsel for Respondent(s), Peter S. Banks, Attorney at Law, Skamania Co Courthouse, PO Box 790, Stevenson, WA 98648-0790.
Lonna Dee St. Martin appeals her conviction for felony hit and run. We affirm.
At the location pertinent here, Sand Hill Road is built on an embankment above the Wind River. On September 1, 2002, Lonna Dee St. Martin was driving on Sand Hill Road, without a valid license, when four oncoming motorcycles rounded the curve in front of her. Kenneth Hallock was driving one of the motorcycles, and Randi Simmons was driving another. Hallock's motorcycle strayed across the center line and struck St. Martin's car. He was thrown off and injured.
While calling 911 on her cell phone, Simmons asked St. Martin several times for the name of the road they were on. Rather than giving a clear answer, St. Martin kept saying that she had to leave. According to Hallock's and Simmons' later testimony, St. Martin said that she did not have a driver's license, that she was sorry, and that she could not be there. According to St. Martin's later testimony, she said that she did not have a driver's license, that she could not be there, and that she had to go home.
Robert McCrum, a tribal fisheries officer, stopped to help. He noticed that St. Martin had parked in a turnout, and that she walked past him while he was going to help Hallock. He did not notice she was gone until deputies arrived and asked where the car's driver was.
While searching for the car's driver, McCrum saw what appeared to be fresh skid marks on the embankment between the road and the river. He was following the marks when he heard someone yell from below, `[D]on't tell them I'm here.' When he reached the river, he saw St. Martin on the other side, and he yelled for her to stop. She turned and ran. He got a ride across the river from two passing canoeists, caught up with her, and asked what she was doing. She responded, `I didn't do it. It wasn't me. It's not my fault.' Deputy Helton arrived, and she was arrested after a brief struggle.
Report of Proceedings (RP) at 102. Likewise, Helton heard someone yell, `help me, help me, don't tell them I'm down here.' RP at 126.
RP at 105.
Deputy Ford drove St. Martin to jail. He thought that she was exuding a strong odor of alcohol, that her speech was slurred, that her face was flushed, and that her eyes were watery.
The State charged St. Martin with felony hit and run, contrary to RCW 46.52.020(1) and (3). At the ensuing jury trial, she argued that she had been `physically incapable' of remaining at the scene because of a panic attack. The State responded that she had left because she had consumed alcohol and did not have a valid driver's license.
The State also charged with resisting arrest contrary to RCW 9A.76.040(4). St. Martin was later acquitted on that charge, so it is not pertinent here.
RP at 208.
St. Martin supported her argument with her own testimony and that of Dr. Ray Fitzsimmons. She testified that immediately after the accident, she had felt as if she were in a `whooshing silence bubble.' She had felt an uncontrollable need to go home, as well as fear of the motorcyclists. Her house was visible just across the river, so she slid down the embankment, swam the river, and was almost there when caught and arrested.
RP at 170.
Dr. Fitzsimmons testified that he had been treating St. Martin since 1993. Although she had taken medication previously, he `doubt[ed] that she was' at the time of the accident. On September 17, 2002, a couple of weeks after the accident, she had come in and `asked for a referral for drug treatment' as well as for `alcoholism' treatment, causing him to try `to get her into a program where they treat mental health issues, as well as chemical dependency issues.' He believed that `[s]he has an anxiety disorder that is at times quite severe,' but he did not `honestly know that it's a panic disorder.' When asked whether she had experienced a panic attack on September 1, 2002, he replied that he `[did] not doubt that she had an anxiety reaction that day.' When asked whether `[i]t's just as likely she fled the scene because she had been consuming alcohol and had no valid license,' he answered, `Could have been.' He said that a panic attack can involve physical symptoms, but he did not say that an anxiety disorder can involve such symptoms in the absence of a panic attack.
RP at 207.
RP at 219.
RP at 214.
RP at 229 (emphasis added).
RP at 232.
At the end of the evidence, St. Martin proposed an instruction which, if given, would have told the jury that it could convict only if it found, inter alia, that St. Martin had not been `physically incapable' of remaining at the scene and discharging her other obligations. In addition, she proposed a lesser included offense instruction on attempted hit and run, and she objected to the following reasonable doubt instruction:
The defendant has entered a plea of not guilty. That plea puts in issue every element of the crime charged. The State is the plaintiff and has the burden of proving each element of the crime beyond a reasonable doubt. The defendant has no burden of proving that a reasonable doubt exists.
A defendant is presumed innocent. This presumption continues throughout the entire trial unless you find during your deliberations that it has been overcome by the evidence beyond a reasonable doubt.
A reasonable doubt is one for which a reason exists and may arise from the evidence or lack of evidence. Proof beyond a reasonable doubt is proof that leaves you firmly convinced of the defendant's guilt. There are very few things in this world that we know with absolute certainty, and in criminal cases the law does not require proof that overcomes every possible doubt. If, based on your consideration of the evidence, you are firmly convinced that the defendant is guilty of the crime charged, you must find him guilty. If on the other hand, you think there is a real possibility that he is not guilty, you must give him the benefit of the doubt and find him not guilty.[]
Clerk's Papers (CP) at 60.
Over her objection, the trial court declined her proposed instructions and gave the reasonable doubt one. The jury found her guilty, and this appeal followed.
I.
Based on RCW 46.52.020(4)(d), St. Martin argues that the trial court erred by not instructing that the jury could convict only if it found that she was not `physically incapable' of remaining at the scene. RCW 46.52.020(4)(b) states in part that if a driver involved in an injury accident fails to comply with RCW 46.52.020(1) and (3), the driver is guilty of a class C felony. RCW 46.52.020(4)(d) excepts `any person injured or incapacitated by such accident to the extent of being physically incapable of complying with this section.' St. Martin does not contest that she `may have some initial burden of production, to show that some evidence points to the existence of the exception,' so the question before us is whether she met that burden of production.
Br. of Appellant at 19; cf. State v. Acosta, 101 Wn.2d 612, 619, 683 P.2d 1069 (1984); State v. McCullum, 98 Wn.2d 484, 500, 656 P.2d 1064 (1983); State v. Roberts, 88 Wn.2d 337, 345, 562 P.2d 1259 (1977).
She did not. It is undisputed that she was not physically injured in the accident, that she told people at the scene that she could not stay because she did not have a valid driver's license, and that she swam the river immediately after the accident. Although she said at trial that she had felt `panic,' she did not say that she had experienced physical (as opposed to mental) incapacity. Dr. Fitzsimmons did not `honestly know' whether she had a panic disorder as distinguished from an anxiety disorder, and he thought it could have been `just as likely' that she had fled due to alcohol consumption and not having a driver's license. This record is devoid of evidence that she was physically incapacitated, the trial court was not required to give an instruction that the evidence did not support, and the trial court did not err.
RP at 181.
State v. Hernandez, 99 Wn. App. 312, 320, 997 P.2d 923 (1999) (`A defendant is entitled to have a jury instruction upon its theory of the case if there is sufficient evidence to support that theory.'), review denied, 140 Wn.2d 1015 (2000); Carle v. McChord Credit Union, 65 Wn. App. 93, 106, 827 P.2d 1070 (1992) (`A jury should not be instructed on issues of fact not presented by the evidence.').
II.
St. Martin argues that the trial court erroneously declined to instruct on the lesser included offense of attempted hit and run. She contends that a jury taking the evidence in the light most favorable to her could find that rather than completely leaving the scene, she only took a `substantial step' toward doing that.
A defendant is entitled to a lesser included offense instruction if: `(1) each element of the lesser offense is a necessary element of the charged offense (the legal test), and (2) the evidence supports an inference that the defendant committed the lesser offense (the factual test).' To satisfy the factual prong, `the evidence must raise an inference that only the lesser included . . . offense was committed to the exclusion of the charged offense.'
State v. Pettus, 89 Wn. App. 688, 697-98, 951 P.2d 284 (citing State v. Workman, 90 Wn.2d 443, 447-48, 584 P.2d 382 (1978)), review denied, 136 Wn.2d 1010 (1998).
State v. Fernandez-Medina, 141 Wn.2d 448, 455, 6 P.3d 1150 (2000); see also State v. Keena, 121 Wn. App. 143, 149, 87 P.3d 1197 (2004) (`the evidence, when taken in the light most favorable to the instruction's proponent, must give rise to a reasonable inference that the lesser crime was committed instead of the charged crime').
The evidence here fails to satisfy the factual prong. Even when taken in the light most favorable to St. Martin, it shows without dispute that she left the scene, slid down an embankment, swam a river, and was fleeing to her house when caught. The jury could not have found that she took only a substantial step toward leaving the scene, and the trial court did not err by refusing her proposed instruction.
III.
St. Martin argues that the trial court improperly instructed the jury on reasonable doubt. She claims that the instruction was constitutionally deficient for reasons different from those rejected in State v. Castle, and also that the instruction was a comment on the evidence. Like the other two divisions of this court, we hold that the instruction adequately and constitutionally described reasonable doubt.
CP at 60.
86 Wn. App. 48, 58, 935 P.2d 656, review denied, 133 Wn.2d 1014 (1997).
State v. Dykstra, 127 Wn. App. 1, 110 P.3d 758, 762 (2005); State v. Portrey, 102 Wn. App. 898, 902-04, 10 P.3d 481 (2000); State v. Cervantes, 87 Wn. App. 440, 442-48, 942 P.2d 382 (1997), review denied, 134 Wn.2d 1013 (1998); Castle, 86 Wn. App. at 58.
IV.
Pro se, St. Martin argues that the State could not charge her with hit and run because she did not cause the accident. The law, however, is to the contrary.
State v. Bourne, 90 Wn. App. 963, 973, 954 P.2d 366 (1998); State v. Lutman, 26 Wn. App. 766, 768, 614 P.2d 224 (1980); see also RCW 46.52.020(1), (3).
V.
Pro se, St. Martin argues that the trial court erred by allowing the State to rebut her panic attack defense by showing that she had consumed alcohol on the day of the accident. But when St. Martin claimed that she had left the scene due to panic, she opened the door to evidence of alternate explanations, including her consumption of alcohol, and the trial court did not err.
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.
HOUGHTON, J. and ARMSTRONG, J., concur.