Opinion
No. 21180-1-III linked w/ No. 21181-9-III.
June 12, 2003. UNPUBLISHED OPINION
Frank M. McCullough was convicted separately for first degree escape and attempting to elude a police vehicle. The issues presented on appeal are whether sufficient evidence exists to support the escape charge, and whether an officer's testimony constituted an improper comment on Mr. McCullough's guilt. We affirm.
FACTS
On October 25, 2001, Mr. McCullough was sentenced to 63 months for four counts of burglary. Prior to serving his sentence, the trial court granted Mr. McCullough a one-week furlough, and later extended the furlough to two weeks. Under the terms of the furlough order, Mr. McCullough was to remain at his sister's home unless given permission to leave, submit to electronic home monitoring, and report to the Geiger Correction Center on November 15. Pursuant to the furlough order, Mr. McCullough was transported from the County Jail to Geiger Correctional facility to set up the electronic home monitoring (EHM). At Geiger, Mr. McCullough met with probation officer Raymond Mays, to review the procedures for electronic home monitoring. As part of the EHM program, Mr. McCullough signed a notice describing the penalties for escape and indicating that if Mr. McCullough left the residence without authorization he would be charged with escape. Officer Mays then drove Mr. McCullough to the home of Julie McCullough, Mr. McCullough's sister, and installed the EHM system through her phone system. On November 11, at 3:24 a.m., Juanita Garcia, a corrections officer at the Geiger facility, received a trans-tamper page from Mr. McCullough's EHM bracelet, indicating the bracelet was being tampered with. Officer Garcia called Ms. McCullough's house, and spoke to Steven Furfaro, Ms. McCullough's boyfriend. Mr. Furfaro told Officer Garcia that Mr. McCullough was not at the home, Mr. Furfaro's Isuzu Trooper was gone, and the bracelet was in a bedroom closet next to a knife.
At 5:30 that morning, Officer Mays and Officer Don McConahy, a program supervisor at Geiger, arrived at Ms. McCullough's home. They found the bracelet next to a knife in Mr. McCullough's bedroom, along with a note apparently written by Mr. McCullough to Mr. Furfaro about borrowing Mr. Furfaro's vehicle. Officers Mays and McConahy testified Mr. McCullough was not authorized to leave the residence at that time or remove the bracelet. Officers Mays and McConahy left the home and began looking for Mr. McCullough, driving in separate vehicles.
Eventually, they proceeded to a traced address, where they saw Mr. McCullough driving the Isuzu Trooper. The officers began following Mr. McCullough until back-up arrived, at which point Officer Mays turned on his overhead lights to initiate a stop. Meanwhile, Officer Todd Brownlee, from the City police force, saw the Isuzu approaching in the opposite direction. Officer Brownlee turned his overhead lights on and stopped his patrol car slightly askew in the street as Mr. McCullough approached. Mr. McCullough slowed, but did not stop and continued past the officer. As Mr. McCullough drove past, Officer Brownlee turned around and pursued Mr. McCullough with his overhead lights on. Instead of stopping, Mr. McCullough turned north on Hogan Street and increased his speed to approximately 50 mph in a 25 mile-an-hour zone. Officer Brownlee noted many safe areas were present for Mr. McCullough to pull over. Mr. McCullough attempted to turn left on Marietta, but was going too fast and slid across the intersection and into someone's yard. Not being able to make the turn, Mr. McCullough continued on Hogan, again at a high rate of speed. As Officer Brownlee followed, Mr. McCullough made two left turns, at a high rate of speed, cutting the corner and causing the vehicle to fish-tail around the corner. Eventually, six other officers joined the pursuit. However, when the officers blocked streets or intersections, Mr. McCullough would turn onto another street or alley to avoid the police. Although Mr. McCullough did not collide with anything, he did drive through a yard, and drove at an excess speed in an area of parked cars, fences and yards when in the alleys.
Finally, Officer Brownlee followed Mr. McCullough down an alley. The end of the alley was blocked by another police car. As Mr. McCullough approached the end of the alley, Officer Brownlee saw him open the driver's side door and jump out of the moving vehicle. Mr. McCullough then ran through a yard, away from Officer Brownlee who was pursuing on foot. Eventually, Officer Brownlee was able to catch Mr. McCullough and arrest him.
Mr. McCullough was charged with escape in the first degree. By separate information, he was charged with possessing stolen property in the first degree, and attempting to elude a police vehicle. Following a bench trial on the escape charge, the trial court issued a written opinion, denying Mr. McCullough's motion to dismiss for insufficient evidence, and finding Mr. McCullough guilty of first degree escape. Immediately following the bench trial, a jury was convened and the second trial commenced on the possession of stolen property and attempting to elude charges. The jury found Mr. McCullough guilty of attempting to elude, but could not agree on the possession of stolen property charge, and the court declared a mistrial on that charge. Mr. McCullough appeals his two convictions. The separate appeals are linked for purposes of this opinion.
ANALYSIS
A. No. 211809-1-III, Escape Evidence Sufficiency
The issue is whether the trial court erred in denying Mr. McCullough's motion to dismiss based upon his view the prosecutor charged him with the wrong crime.
Mr. McCullough does not suggest what crime is appropriate under the circumstances. His challenge is to the sufficiency of the evidence, thus by challenging the sufficiency of evidence, Mr. McCullough admits the truth of the State's evidence and all reasonable inferences from the evidence. State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992). Mr. McCullough argues the facts presented do not constitute the crime of first degree escape. The trial court's application of the facts to the statute is a question of law, reviewed de novo. State v. Law, 110 Wn. App. 36, 39, 38 P.3d 374 (2002).
A person commits first degree escape under RCW 9A.76.110(1), if the person knowingly escapes from custody or a detention facility while being detained pursuant to a felony conviction. Mr. McCullough theorizes his actions do not constitute escape because he was not in custody or being detained as required by the statute. He argues his release on furlough with conditions is not the same as being detained.
The term `custody' is defined as restraint pursuant to a lawful arrest or court order. RCW 9A.76.010(1). Here, the court order restrained Mr. McCullough to his sister's house. In addition, a `detention facility' includes any place of confinement pursuant to a court order, furlough, or other program. RCW 9A.76.010(2)(d) and (e). And `electronic home monitoring' is defined as `partial confinement' under RCW 9.94A.030(26). Consequently, Ms. McCullough's house constituted a detention facility because Mr. McCullough was restrained there by court order, which was monitored by electronic home monitoring.
Previously, cases concerning these terms and definitions arose in the context of whether a defendant could be charged with the more severe crime of escape, or whether the defendant's actions also fell within the scope of the less severe, but more specific crime of failure to return from furlough. See former RCW 72.66.060 (1971); Law, 110 Wn. App. at 39; State v. Smeltzer, 86 Wn. App. 818, 939 P.2d 1235 (1997); State v. Parker, 76 Wn. App. 747, 748, 888 P.2d 167 (1995); State v. Kent, 62 Wn. App. 458, 460, 814 P.2d 1195 (1991); State v. Basford, 56 Wn. App. 268, 273, 783 P.2d 129 (1989); State v. Peters, 35 Wn. App. 427, 667 P.2d 136 (1983).
These cases consistently decided a defendant who fails to return from furlough or who, while on furlough, is not within the area he is authorized to be at a particular time, can be convicted of escape. See Law, 110 Wn. App. at 39; Peters, 35 Wn. App. at 431. The sole issue was whether the defendant's actions constituted failure to return from furlough, thus requiring the State to charge this less severe but more specific crime. Effective July 1, 2001, the legislature removed all doubt by repealing the failure to return from furlough statute. See Laws of 2001, ch. 264, sec. 8. Crimes that may have previously been charged as failure to return from furlough are now charged as either escape or bail jumping. See Law, 110 Wn. App. at 44.
Mr. McCullough's core argument has been previously rejected. In Parker, the defendant was allowed to serve his sentence on electronic home monitoring. When the defendant left the residence without permission, he was convicted of first degree escape. The court upheld his conviction, finding that home detention constituted a detention facility for purposes of the escape statute. Parker, 76 Wn. App. at 748.
Mr. McCullough fails to distinguish Parker. Mr. McCullough merely points to the definition of `furlough,' and argues he could not be confined because he was not receiving credit for time served.
The ordinary definition of `furlough' is a leave of absence or authorized leave. See Peters, 35 Wn. App. at 431 (1983) (ordinary meaning of furlough means leave of absence); RCW 72.66.010(2) (defining furlough for purposes of chapter as authorized leave granted by the department of corrections). However, this definition does not help Mr. McCullough. Mr. McCullough was restrained by court order to his sister's house, and monitored by electronic home monitoring, both are forms of confinement. Accordingly, his unauthorized leave from the residence constitutes escape. See Peters, 35 Wn. App. at 431 (a person on furlough who is not within the area where he is authorized to be at a particular time has escaped from a detention facility).
Moreover, Mr. McCullough speculates he might not receive credit for time served. Officer Mays merely testified he did not know whether Mr. McCullough would receive credit for time served while on furlough. Generally, a defendant on electronic home monitoring is partially confined and must be given credit for time served. RCW 9.94A.030(26); State v. Ammons, 136 Wn.2d 453, 459, 963 P.2d 812 (1998).
Finally, Mr. McCullough's reliance on State v. L.W., 101 Wn. App. 595, 6 P.3d 596 (2000) is misplaced. The issue in L.W. concerned whether credit should be given for juveniles held in a court-ordered shelter prior to the adjudication hearing. See id. at 606. L.W. is inapplicable here.
Pro se, Mr. McCullough presents three arguments. Two concern the issue raised by his appellate counsel. Mr. McCullough argues the EHM contract he signed is unenforceable because he was not in an equal bargaining position. Next, the contract contained reference to the now-repealed crime of failure to return from furlough, thus was ineffective to give him proper notice. Since these issues were not raised at the trial court level, and do not involve an issue of constitutional magnitude, they will not be considered for the first time on appeal. RAP 2.5(a); State v. Scott, 110 Wn.2d 682, 687, 757 P.2d 492 (1988).
In passing, we note the contract Mr. McCullough signed did not form the basis for his criminal conviction, so his allegation of unequal bargaining position is without merit. Notice is not an essential element of the crime of escape even though Mr. McCullough was advised that he could be charged with escape for violating the terms of the court-ordered furlough. In sum, the trial court did not err in denying Mr. McCullough's motion.
B. No. 21181-9-III, Officer Brownlee's Testimony
The presented issue is whether the trial court erred in allowing Officer Brownlee to tell the jury Mr. McCullough was `driving the vehicle with disregard for the safety of others.'
The trial court's decision to admit evidence is reviewed for abuse of discretion. State v. Olmedo, 112 Wn. App. 525, 530, 49 P.3d 960 (2002), review denied sub nom. by State v. Johnson, 148 Wn.2d 1019, 64 P.3d 650 (2003). The appealing party has the burden of showing abuse of discretion, which, in the context of evidence decisions, will only be found when no reasonable person would adopt the view espoused by the trial court. Id. Mr. McCullough was charged with attempting to elude a police vehicle. RCW 46.61.024. One of the elements the State must prove is that while attempting to elude a pursuing police vehicle, the defendant drove his vehicle in a manner indicating a wanton or willful disregard for the lives or property of others. Id; WPIC 94.02.
During trial, the prosecutor asked Officer Brownlee:
Q. — when you were chasing this vehicle, did it drive with disregard to the safety of others?
A. Yes.
Q. And other's property?
A. Yes.
Report of Proceedings at 48. Mr. McCullough's objection after the second question and answer for improper legal conclusion was overruled. On appeal, Mr. McCullough contends the testimony presents an improper legal conclusion and an improper opinion regarding the ultimate issue at trial. Generally, a witness may not give an opinion, directly or indirectly, on the defendant's guilt. City of Seattle v. Heatley, 70 Wn. App. 573, 854 P.2d 658 (1993). Such opinion testimony undermines a jury's independent determination of the facts, and may invade the defendant's constitutional right to a trial by jury. Id. at 530-531. However, a witness may give an opinion that embraces an ultimate issue or critical element if the opinion is otherwise admissible as a factual or expert opinion. ER 704; Olmedo, 112 Wn. App. at 531. A witness's opinion is proper when it is rationally based on the perception of the witness and helpful to a clear understanding of the witness's testimony, or the determination of a fact in issue, and is not confusing, misleading or involving unfair prejudice outweighing its probative value. ER 403, 701; State v. Farr-Lenzini, 93 Wn. App. 453, 462, 970 P.2d 313 (1999); Heatley, 70 Wn. App. at 579.
Whether opinion testimony constitutes an improper opinion on guilt, or an opinion on an ultimate issue, depends upon the circumstances of the case. Olmedo, 112 Wn. App. at 531. `Factors to consider include the type of witness, the nature of the charges, the type of defense, and the other evidence. Evidence is not improper when the testimony is not a direct comment on the defendant's guilt, is helpful to the jury, and based on inferences from the evidence.' Id. at 531 (citations omitted). However, if the `opinion relates to a core element that the State must prove, there must be a substantial factual basis supporting the opinion.' Farr-Lenzini, 93 Wn. App. at 462-63.
Generally, an officer can give an opinion, based upon observations that a defendant was intoxicated and could not drive safely in a prosecution for driving under the influence. Heatley, 70 Wn. App. at 582. An officer may testify that a suspect's crying was insincere if the proper foundation is laid to show the opinion is based upon personal observations that directly and logically support the conclusion. State v. Allen, 50 Wn. App. 412, 418-19, 749 P.2d 702 (1988). But, a witness may not testify about the defendant's state of mind, when such testimony is based upon speculation. Farr-Lenzini, 93 Wn. App. at 462-63.
Officer Brownlee's testimony that Mr. McCullough was driving in disregard for the safety of others and property is an opinion on an ultimate issue because it relates to a core element of the crime. Great deference will be given to the trial court's decision on admission of evidence. Heatley, 70 Wn. App. at 578. Concerning ultimate-issue testimony, `this court has expressly declined to take an expansive view of claims that testimony constitutes an opinion on guilt.' Id. at 579.
Here, the trial court did not abuse its discretion. Officer Brownlee's testimony was not an improper opinion under ER 701. Instead, it was rationally based upon his observations of Mr. McCullough's driving. The foundation for his opinion was established in his prior testimony and provided substantial support for the opinion. Further, without objection, Officer Brownlee supported his testimony by relating Mr. McCullough did not drive through alleys at a safe speed and came near to colliding with parked cars and fences. Notably, Officer Brownlee did not cross the line by speculating that Mr. McCullough's intentions were willful or wanton. Nor was Officer Brownlee's opinion a comment on Mr. McCullough's guilt. `The fact that an opinion encompassing ultimate fact issues supports the conclusion that the defendant is guilty does not make the testimony an improper opinion on guilt.' Heatley, 70 Wn. App. at 579. Officer Brownlee's opinion touched merely on a portion of one element. The opinion did not address the other four elements. Nor did it specify whether Mr. McCullough's disregard was willful or wanton. The opinion did not dictate to the jury what outcome to reach. See State v. Cruz, 77 Wn. App. 811, 815, 894 P.2d 573 (1995). Instead, since sufficient foundation was established for the opinion, the jury was free to disregard it. See Heatley, 70 Wn. App. at 581.
In sum, the trial court did not abuse its discretion in admitting opinion testimony of the officer.
Affirmed.
A majority of the panel has determined this opinion will not be printed in the Washington Appellate Reports, but it will be filed for public record pursuant to RCW 2.06.040.
SWEENEY and KATO, JJ., concur.