Opinion
No. 35350-4-II.
September 25, 2007.
Appeal from a judgment of the Superior Court for Pierce County, No. 06-1-02151-9, Waldo F. Stone, J. Pro Tem., entered September 8, 2006.
Affirmed in part, reversed in part, and remanded by unpublished opinion per Hunt, J., concurred in by Armstrong and Quinn-Brintnall, JJ.
Shajuanda Simone Tate appeals her jury conviction for third degree assault and one condition of her suspended sentence for driving with a suspended or revoked license (DWLS). She argues that (1) the State failed to present sufficient evidence that she intended to strike the arresting officer, a necessary element of assault; and (2) the trial court abused its discretion in ordering her to sell her truck as a condition of her partially suspended DWLS sentence. We affirm Tate's assault conviction, reverse the truck-sale condition of her suspended DWLS sentence, and remand for resentencing on the DWLS.
Facts I. Assault
At about 4 am on May 10, 2006, Lakewood Police Officer James D. Syler was on duty with his canine partner Titan. When he observed a truck potentially speeding on South Tacoma Way, he pulled behind the truck, ran a license check, and learned that the truck's owner, Shajuanda Tate, had a suspended license. Officer Syler turned on his overhead lights and the truck came to a stop. The driver identified herself as Tate; there was also a female passenger in the truck. When Officer Syler told Tate that she was under arrest for driving with a suspended license, Tate put the truck into gear and drove off.
With their lights and sirens activated, Officer Syler and a second police unit pursued Tate for approximately 14 blocks, at times in excess of 80 miles per hour in a 35-mile-per-hour zone. Tate refused to stop. When Tate's vehicle stalled Tate brought it to a sudden stop and climbed out the window. Tate fled on foot with her passenger, while her truck rolled into a parked car. Syler ordered Tate to stop or he would send his dog. But Tate did not stop.
Syler released his dog Titan, who chased Tate, caught her climbing a fence, and pulled her to the ground, where they struggled. Syler grabbed Titan and ordered him to release Tate; Titan obeyed. After Titan released his hold on Tate, Tate rolled over onto her back and kicked Syler in the temple area of his head, causing a sharp pain to shoot down his jaw. Syler then struck Tate once and again released Titan, who grabbed Tate's arm. Additional officers arrived and helped take Tate into custody.
II. Procedure
The State charged Tate with third degree assault under RCW 9A.36.031(1)(g), attempting to elude a pursuing police vehicle under RCW 46.61.024(1), and driving with a suspended or revoked license in the first degree under RCW 46.20.342(1)(a).
At trial, Syler testified consistent with the above recitation of the facts. Tate testified that she had been driving with a suspended license, that she had attempted to elude Officer Syler, that she had not kicked or attempted to kick the officer, that she had not swung her foot out at any time, and that the officer had struck her twice in the mouth. She claimed that Officer Syler had made up the story about her kicking him in the head to avoid being charged with assault himself.
The jury found Tate guilty of all three charges. The trial court sentenced Tate to 22 months for the assault, to be served concurrently with 12 months for attempt to elude a pursuing police vehicle. The court also sentenced Tate to 12 months for driving with a suspended or revoked license, with 6 months suspended on condition that Tate sell her truck for fair market value (as opposed to low-price "gift sale" to a family member or friend).
Tate appeals her assault conviction and the truck-sale condition of her partially suspended sentence for driving while license suspended or revoked.
Analysis I. Sufficiency of the Evidence
Tate argues that the State failed to present sufficient evidence to establish that she intended to kick Officer Syler when she was flailing her arms and legs in a struggle to get away from the dog, Titan. We disagree.
A. Standard of Review
Where the trial court has weighed the evidence, appellate review is limited to determining whether substantial evidence supports the findings and, if so, whether the findings in turn support the trial court's conclusions of law and judgment. State v. Macon, 128 Wn.2d 784, 799, 911 P.2d 1004 (1996) (citing City of Tacoma v. State, 117 Wn.2d 348, 361, 816 P.2d 7 (1991)). Substantial evidence exists when there is sufficient quantum of proof to support the trial court's findings of fact. State v. Halstien, 122 Wn.2d 109, 129, 857 P.2d 270 (1993) (citing World Wide Video, Inc. v. City of Tukwila, 117 Wn.2d 382, 387, 816 P.2d 18 (1991)). Where findings of fact and conclusions of law are supported by substantial but disputed evidence, an appellate court will not disturb the trial court's ruling. State v. Smith, 84 Wn.2d 498, 505, 527 P.2d 674 (1974); State v. Chapman, 84 Wn.2d 373, 526 P.2d 64 (1974). See also House v. Erwin, 83 Wn.2d 898, 524 P.2d 911 (1974).
The test for determining the sufficiency of the evidence is whether, after viewing the evidence in the light most favorable to the State, any rational trier of fact could find guilt beyond a reasonable doubt. State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992). All reasonable inferences from the evidence are drawn in favor of the State and interpreted most strongly against the defendant. Id.
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. Id. "A claim of insufficiency admits the truth of the State's evidence and all inferences that reasonably can be drawn therefrom." Id.
B. Intent
The State charged Tate with third degree assault under RCW 9A.36.031(1)(g), which includes the element of intent. "A person acts with intent or intentionally when he acts with the objective or purpose to accomplish a result which constitutes a crime." RCW 9A.08.010(1)(a). Tate contends that any contact between her and Officer Syler was accidental and, thus, lacked the necessary element of intent to support her assault conviction.
The record does not support Tate's new argument on appeal that any contact she had with Syler was accidental. At trial, Tate testified that she did not did not swing her foot at Office Syler at any time. Syler testified that Tate kicked him in the temple while he was trying to arrest her. Viewing the evidence, as we must, in the light most favorable to the State post-conviction, Syler's testimony alone is sufficient to show that Tate kicked him intentionally in an attempt to continue her escape from arrest, which had begun with her trying to elude his pursuit of her car, followed by his pursuit on foot, aided by his dog, when Tate repeatedly ignored his commands to stop.
Moreover, the jury had to weigh the conflicting evidence of Officer Syler, that Tate had kicked him in the temple, and Tate, that she had not swung her arms and legs or made contact with Syler at all. The jury did not find Tate credible. On appeal, we defer to the jury's credibility determinations. State v. Cord, 103 Wn.2d 361, 367, 693 P.2d 81 (1985); State v. Casbeer, 48 Wn. App. 539, 542, 740 P.2d 335, review denied, 109 Wn.2d 1008 (1987).
Accordingly, we hold that sufficient evidence shows that Tate intentionally kicked Syler and, therefore, supports the jury's finding Tate guilty of third degree assault.
II. Sentencing
Tate next argues that the trial court abused its discretion in conditioning suspension of part of her sentence for driving with a suspended or revoked license on requiring her to sell her truck. More specifically, Tate contends that requiring her to sell her truck bore no relationship to her duty to make reparations to a victim; nor did it tend to prevent the commission of future crimes because, upon her release from confinement and reinstatement of her driver's license, it will not be illegal for her to drive any vehicle and, thus, driving her truck will not then constitute a "future crime." State v. Summers, 60 Wn.2d 702, 707, 375 P.2d 143 (1962). Tate asks us to strike this condition and to remand for resentencing.
The State counters that the trial court did not abuse its discretion in requiring Tate to sell her truck because the crimes for which Tate was convicted involved her driving her truck with a suspended license. Moreover, Tate's criminal history includes three previous misdemeanor convictions for driving with a suspended license, which the sentencing court appropriately considered in imposing this truck-sale condition. State v. Dainard, 85 Wn.2d 624, 625-26, 537 P.2d 760 (1975).
In addition, Tate argues that the trial court imposed this condition as a symbolic, moral statement, rather than to prevent future crimes. But as the State points out in its brief, the record shows that (1) the sentencing court initially stated that its primary reason for imposing the truck-sale condition was to prevent Tate from committing future crimes by preventing her from driving her truck; and (2) the court's later symbolic justification was an afterthought, in response to a question about this condition.
We appreciate the sentencing court's frustration with Tate and its desire to take measures to prevent her future unlicensed driving, which license suspension alone has not curtailed. Tate has repeatedly driven her truck, and possibly other vehicles, even while her license has been suspended. This was her fourth DWLS, and this time, she drove 80 m.p.h. in a 35 m.p.h. zone in reckless flight from pursuing police officers.
In requiring Tate to sell her truck, the sentencing court said it wanted her to understand that "that we mean business" when the law says she cannot drive with a suspended license. And the sentencing court told Tate to "learn to ride the bus or walk or ride a bicycle wherever you're going. We know it's going to be a long time before you have a driver's license." Report of Proceedings (Sept. 8, 2006) at 21.
Nevertheless, the Legislature establishes the parameters within which a court may sentence a defendant convicted of a crime. And we can find no legislation authorizing the sentencing court to require a defendant to sell her private vehicle as a condition of a suspended sentence for DWLS.
A. Standard of Review
We review crime-related sentencing conditions and prohibitions for abuse of discretion. State v. Riley, 121 Wn.2d 22, 36-37, 846 P.2d 1365 (1993). A trial court abuses its discretion if its "exercise of discretion was manifestly unreasonable, or exercised on untenable grounds, or for untenable reasons." T.S. v. Boy Scouts of Am., 157 Wn.2d 416, 423, 138 P.3d 1053 (2006) (quoting State ex rel. Carroll v. Junker, 79 Wn.2d 12, 26, 482 P.2d 775 (1971)). A decision rests on untenable grounds if based on facts unsupported in the record or if the trial court applied the wrong legal standard. T.S., 157 Wn.2d at 423-24. A decision is unreasonable if the court, despite applying the correct law to supported facts, adopts a position that no reasonable person would take. T.S., 157 Wn.2d at 424.
RCW 9.92.060 (1) grants the trial court discretion in suspending sentences conditionally. Courts have interpreted this statute as authorizing the imposition of conditions that (1) bear a relationship to the duty to make reparations to the victim, or (2) would tend to prevent the future commission of crimes. Summers, 60 Wn.2d at 707; State v. Williams, 97 Wn. App. 257. 263. 983 P.2d 687(1999); County of Spokane v. Farmer, 5 Wn. App. 25, 29, 486 P.2d 296 (1971). A trial court abuses its discretion if it imposes a condition that "has no bearing on either of these two matters but relates only to a future moral and not legal obligation." Summers, 60 Wn.2d at 707-08.
RCW 9.92.060(1) provides: Whenever any person is convicted of any crime except murder, burglary in the first degree, arson in the first degree, robbery, rape of a child, or rape, the superior court may, in its discretion, at the time of imposing sentence upon such person, direct that such sentence be stayed and suspended until otherwise ordered by the superior court, and that the sentenced person be placed under the charge of a community corrections officer employed by the department of corrections, or if the county elects to assume responsibility for the supervision of all superior court misdemeanant probationers a probation officer employed or contracted for by the county, upon such terms as the superior court may determine.
The appellant bears the burden of proving abuse of discretion in imposing sentencing conditions. State v. Hentz, 32 Wn. App. 186, 190, 647 P.2d 39 (1982), reversed on other grounds, 99 Wn.2d 538 (1983). Tate has met this burden here.
B. Sentencing Conditions
The issue here rests on the connection between the truck that the sentencing court ordered Tate to sell and Tate's commission of future crimes. Case law clearly defers to the trial court's discretion, and, as Tate quotes in her brief,
We are reluctant indeed to interfere with the discretion exercised by the trial court in imposing conditions on a suspension of a sentence, and shall uphold any such conditions which on any reasonable theory tend . . . to restrain [a defendant] from the commission in the future of other crimes;. . . .
Summers, 60 Wn. 2d at 707-08, citing In Redewill v. Superior Court of Maricopa County, 43 Ariz. 68, 81, 29 P.2d 475 (1934).
Nonetheless, appellate courts have not hesitated to reverse the imposition of conditions it has found to have no relationship to the crime or to the commission of future crimes. See, e.g., County of Spokane, 5 Wn. App. 25; Summers, 60 Wn.2d 702.
Like the trial court, we again observe that Tate has repeatedly used her truck to commit DWLS. But no factor, other than its accessibility, ties her criminal behavior to that truck specifically as opposed to other vehicles that she might drive. Thus, unless Tate is somehow denied legal access to all vehicles, her past behavior suggests that she will likely continue to drive any vehicle to which she has access, regardless of whether her license remains suspended or revoked. Therefore, although requiring Tate to sell her truck might hinder her ability to drive without a license, we cannot say that this condition will prevent her access to other vehicles that she might use to engage in future criminal behavior, especially future DWLS.
Furthermore, the Legislature has prescribed specific other methods for keeping vehicles out of the hands of drivers whose licenses have been suspended or revoked. For example, RCW 46.55.113 provides that law enforcement officers may impound the vehicle of a driver who drives a vehicle with a suspended license in violation of RCW 46.20.342. And RCW 46.65.070 provides that the Department of Licensing may revoke the operator's license of a "habitual offender" for seven years. With her three prior DWLS convictions, Tate would appear to qualify as such a "habitual offender" — a person convicted of three or more traffic offenses, including driving a motor vehicle with a suspended license. RCW 46.65.020. Our research, however, reveals no legislation authorizing a sentencing court to require a defendant to sell her vehicle as a condition of a suspended sentence for DWLS.
It further appears that if a vehicle has been or will be used in the commission of a felony, it may be subject to seizure, forfeiture, and sale under RCW 10.105.010. But Tate's use of her truck here does not appear to meet the statutory criteria for forfeiture under this section.
RCW 46.55.113 provides: Whenever the driver of a vehicle is arrested for a violation of RCW 46.61.502, 46.61.504, 46.20.342, or 46.20.345, the vehicle is subject to summary impoundment, pursuant to the terms and conditions of an applicable local ordinance or state agency rule at the direction of a law enforcement officer.
Accordingly, we reverse the truck-sale condition of Tate's suspended sentence for DWLS and remand for resentencing on the charge of driving while license is revoked or suspended, RCW 46.20.342(1)(a). We otherwise affirm Tate's assault conviction.
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.
We concur:
ARMSTRONG, P.J.
QUINN-BRINTNALL, J.