Opinion
No. 28970-2-III.
Filed: July 12, 2011. UNPUBLISHED OPINION.
Appeal from a judgment of the Superior Court for Benton County, No. 09-1-00455-6, Craig J. Matheson, J., entered April 16, 2010.
Affirmed by unpublished opinion per Siddoway, J., concurred in by Korsmo, A.C.J., and Brown, J.
Troy Hamilton Trusley was convicted of vehicular assault after striking and injuring a bicyclist with his car. He argues on appeal that the trial court erred by considering blood test results indicating that methamphetamine was present in his system at the time of the collision because the State never established that an enzyme poison was present in the blood sample. He also argues that the charging information failed to specify each element of the crime and that the waiver of his jury trial right was not knowingly and voluntarily made. We reject his challenges and affirm.
FACTS AND PROCEDURAL BACKGROUND
At approximately 9 a.m. on March 9, 2009, Cindy Goulet was riding her bike westbound on Columbia Park Trail in Kennewick when Troy Trusley struck her from behind with his car. As a result of the collision, Ms. Goulet suffered a concussion and injuries to her ribs and right shoulder.
The responding police officer performed a breath test on Mr. Trusley that indicated no alcohol was present in his system, but suspecting from Mr. Trusley's behavior that he was impaired, the officer asked for assistance from a department drug recognition expert. Officer Chris Bennett responded and concluded from field sobriety tests that Mr. Trusley was under the influence of a central nervous system stimulant such as methamphetamine. He obtained a telephonic warrant and a blood draw was performed at a nearby hospital. The blood screen tested positive for amphetamines and later for 0.3 milligrams per liter of methamphetamine. A level of 0.3 milligrams per liter is substantially higher than a therapeutic level of methamphetamine, which would be between 0.02 milligrams per liter to about 0.05 milligrams per liter.
The State's toxicology expert testified that methamphetamine is sometimes prescribed for narcolepsy, as an appetite suppressant, or to treat attention deficit disorder or attention deficit hyperactivity disorder.
Vehicular assault charges were filed in May 2009. On January 14, 2010, Mr. Trusley appeared before the trial court with his attorney and filed a signed waiver of his right to a jury trial. Mr. Trusley was questioned by the court as to whether he understood the importance of the right he was relinquishing and whether he had discussed the decision with his attorney; he responded that he understood the consequences of such a waiver. The court granted his request to proceed without a jury and a bench trial was conducted.
During trial, Officer Bennett testified to the procedure followed when the blood draw was conducted. He explained that the blood was put in sealed gray-topped vials containing a white anticoagulant powder and that the vials contained sodium fluoride. Report of Proceedings (RP) (Feb. 1, 2010) at 151, 161. State toxicologist Brittany Ball testified that her lab sends out vacu-tainer gray tubes containing an enzyme poison and an anticoagulant to law enforcement agencies and that "the enzyme poison kills any enzymes in there that might cause bacteria to create fermentation." RP (Feb. 2, 2010) at 184. She testified that Mr. Trusley's blood sample arrived on May 14, 2009 in two of her lab's gray containers. She also testified, without objection, that the sample contained 0.3 milligrams per liter of methamphetamine and that no alcohol was present.
The trial court found Mr. Trusley guilty and sentenced him to 63 months of confinement. Among its factual findings were that Mr. Trusley's blood was "put in vials supplied to the Kennewick Police Department by the state toxicologist" and that "[t]hose vials have an anticoagulant and an enzyme poison, including sodium fluoride, to preserve the blood samples and prevent the samples from clotting." Clerk's Papers (CP) at 30 (Findings of Fact 11, 12).
Mr. Trusley appeals, assigning error to (1) the trial court's admission of the blood test results; (2) the insufficiency of the charging information, which he contends failed to identify the elements of vehicular assault; and (3) the denial of his right to a jury trial without a knowing, voluntary, and intelligent waiver.
Mr. Trusley originally included a fourth assignment of error: that the trial court had failed to enter written findings and conclusions, requiring remand. The State thereafter caused findings and conclusions to be entered by the trial court. At oral argument, defense counsel withdrew that assignment of error.
ANALYSIS I
Mr. Trusley's principal argument is that the trial court erred by admitting toxicology results indicating that his system contained methamphetamine at the time of the collision, without requiring proof that the testing was performed according to methods and techniques approved by the state toxicologist. Mr. Trusley's chief complaint is that no evidence reflects that his blood was preserved with an enzyme poison as required by WAC 448-14-020(3)(b). Reply Br. of Appellant at 6. "WAC 448-14-020 requires that certain procedures be used when analyzing a blood sample for alcohol content." State v. Reier, 127 Wn. App. 753, 756, 112 P.3d 566 (2005) (emphasis added), review denied, 156 Wn.2d 1019 (2006). In relevant part, the regulation provides:
Blood samples for alcohol analysis must be preserved with an anticoagulant and an enzyme poison sufficient in amount to prevent clotting and stabilize the alcohol concentration. Suitable preservatives and anticoagulants include the combination of sodium fluoride and potassium oxalate.
WAC 448-14-020(3)(b). An enzyme poison is required to be in the sample to prevent a loss of alcohol concentration between the time the sample was taken and the time it is analyzed. State v. Wilbur-Bobb, 134 Wn. App. 627, 630, 141 P.3d 665 (2006); State v. Bosio, 107 Wn. App. 462, 466-67, 27 P.3d 636 (2001). Both parties assume that this regulation applies to Mr. Trusley's blood test.
The State argues that we should decline consideration of this argument under RAP 2.5(a), and that in any event the anticoagulant and enzyme poison requirements of the regulation were satisfied.
Generally, appellate courts will not entertain issues raised for the first time on appeal. RAP 2.5(a); Brundridge v. Fluor Fed. Servs., Inc., 164 Wn.2d 432, 441, 191 P.3d 879 (2008). Accordingly, in order to challenge a trial court's admission of evidence on appeal, a party must raise a timely and specific objection at trial. State v. Gray, 134 Wn. App. 547, 557, 138 P.3d 1123 (2006), review denied, 160 Wn.2d 1008 (2007). The reason for this rule is to afford the trial court with an opportunity to correct errors, thereby avoiding unnecessary appeals and retrials. Smith v. Shannon, 100 Wn.2d 26, 37, 666 P.2d 351 (1983). An exception to the rule is made when the appellant demonstrates that the error complained of constitutes manifest constitutional error. RAP 2.5(a)(3); State v. Kirkman, 159 Wn.2d 918, 926-27, 155 P.3d 125 (2007). The application of RAP 2.5(a) is discretionary and we may consider matters not raised below in order to render a proper decision. Bennett v. Hardy, 113 Wn.2d 912, 918, 784 P.2d 1258 (1990).
The record reflects that defense counsel did not object to the admission of the toxicology results complained of in this appeal. While counsel did object to admission of the photographs of the vials containing the blood on authentication grounds and due to the prosecutor's failure to disclose them, no objection was made to the later-provided test results themselves. In fact, a colloquy with the trial court indicates that counsel was aware of the issue now complained of, yet she failed to object to the results when provided by the toxicologist. One explanation might be that she concluded that the State had satisfied the requirements of WAC 448-14-020(3)(b) by the time the results were introduced. Another might be that she concluded that the requirements did not apply where the blood was tested for methamphetamine content.
We are skeptical that there is any scientific need to observe the requirements of the regulation where the analysis of the results at issue is the testing of the sample for the presence of methamphetamine. The plain language of the regulation renders it inapplicable to the admissibility of test results establishing the methamphetamine content in a blood sample. Further, as suggested by toxicologist Brittany Ball, an enzyme poison's function is to prevent fluctuation of a sample's alcohol content. Since the alcohol content of Mr. Trusley's blood was never at issue — it was 0.00 by all accounts — there was no need to include an enzyme poison. Mr. Trusley provides no authority requiring an enzyme poison to be present in a blood sample when tested for methamphetamine; each case he cites pertains only to blood alcohol content testing. He does not assert the test results are otherwise inadmissible and nothing in the record suggests that methamphetamine testing conducted without an enzyme poison in the blood produces inaccurate results.
The only statutory provision that suggests WAC 448-14-020(3)(b) might be applicable here is RCW 46.61.506(3), which provides that in vehicular assault cases "[a]nalysis of the person's blood or breath to be considered valid . . . shall have been performed according to methods approved by the state toxicologist." Title 448 WAC, entitled "State toxicologist," provides no methods for testing drugs other than alcohol.
Were we to apply WAC 448-14-020(3)(b) to this matter, we would find that the evidence was narrowly sufficient to satisfy the requirement of the regulation. But the fact that compliance with the regulation could be completely irrelevant to the validity of the methamphetamine test results is a compelling reason to abide by the general policy of RAP 2.5(a) and decline to consider this argument for the first time on appeal. Had the objection been raised in the trial court, Ms. Ball could have been questioned and likely would have shed light on whether the procedures for blood testing that Mr. Trusley argues should have been followed are necessary or even helpful when the presence of methamphetamine is at issue. We will not address this issue on the merits under these circumstances.
II
Mr. Trusley next argues that the charging document was constitutionally deficient because it did not advise him of each essential element of the crime charged. In Washington, a charging document must allege facts that support every element of the offense, both statutory and nonstatutory, and must adequately identify the crime charged. State v. Hopper, 118 Wn.2d 151, 155, 822 P.2d 775 (1992). The rationale behind this requirement is to give the accused proper notice of the nature of the crime so that he or she can prepare an adequate defense. State v. Kjorsvik, 117 Wn.2d 93, 101, 812 P.2d 86 (1991). Mr. Trusley's specific complaint is that the information failed to allege the causal connection between his conduct and substantial bodily harm incurred by Ms. Goulet. Our review of a charging document's sufficiency is de novo. State v. Williams, 162 Wn.2d 177, 182, 170 P.3d 30 (2007). When, as here, the sufficiency of a charging document is not challenged until appeal, it will be "more liberally construed in favor of validity than those challenged before or during trial." Kjorsvik, 117 Wn.2d at 102.
Mr. Trusley was charged with vehicular assault under RCW 46.61.522(1). Regardless of which alternative means of committing the crime is charged, the statute includes a causal connection between the proscribed conduct and the resulting harm as an element of the crime. RCW 46.61.522(1)(a)-(c); see also State v. Neher, 112 Wn.2d 347, 350-51, 771 P.2d 330 (1989) (recognizing that proximate causation of injury is an element of the vehicular assault).
RCW 46.61.522(1) provides:
"A person is guilty of vehicular assault if he or she operates or drives any vehicle:
"(a) In a reckless manner and causes substantial bodily harm to another; or "(b) While under the influence of intoxicating liquor or any drug, as defined by RCW 46.61.502, and causes substantial bodily harm to another; or
"(c) With disregard for the safety of others and causes substantial bodily harm to another."
The charging document filed in this matter reads in part:
That the said TROY HAMILTON TRUSLEY in the County of Benton, State of Washington, on or about the 9th day of May, 2009, in violation of RCW 46.61.522(1)(a) and/or (b), did operate or drive a vehicle in a reckless manner and/or did operate or drive a vehicle while under the influence of central nervous system stimulant and caused substantial bodily harm to another, to-wit: broken ribs inflicted on Cindy Goulet.
CP at 1 (emphasis added). While we are entitled to engage in a liberal construction of this information in order to uphold its validity, doing so here is unnecessary. The information plainly apprised Mr. Trusley of the elements of the crime he was charged with, including the element of causation. It was not constitutionally deficient.
III
Mr. Trusley next argues that his waiver of his right to a jury trial was not knowingly, voluntarily, and intelligently made because he was not advised by the trial court that a jury would have to be unanimous in order to render a verdict. Because this assignment challenges the waiver of an important constitutional right, our review is de novo. State v. Vasquez, 109 Wn. App. 310, 319, 34 P.3d 1255 (2001), aff'd, 148 Wn.2d 303, 59 P.3d 648 (2002).
The law governing a defendant's waiver of the jury trial right is well settled. The right may be waived so long as the defendant does so knowingly, intelligently, voluntarily, and free from improper influences. State v. Pierce, 134 Wn. App. 763, 771, 142 P.3d 610 (2006) (citing State v. Stegall, 124 Wn.2d 719, 724-25, 881 P.2d 979 (1994)). A written waiver is not determinative but is "strong evidence" that the defendant validly waived the jury trial right. Id. Unlike the waiver of other rights such as the right to counsel, a colloquy conducted on the record is not required. Stegall, 124 Wn.2d at 725; State v. Brand, 55 Wn. App. 780, 785, 780 P.2d 894 (1989), review denied, 114 Wn.2d 1002 (1990). Instead, "only a personal expression of waiver from the defendant" is required. Pierce, 134 Wn. App. at 771 (citing Stegall, 124 Wn.2d at 725).
Here, the trial court received a written waiver, signed by Mr. Trusley, stating
I, Troy Trusley, have been fully advised of my right to a jury trial. I am electing to waive my right to a jury trial and am requesting a bench trial in this matter. I have been fully informed that this is solely my decision to make and have weighed the facts of my case with my attorney. I have not made this decision under any duress or threats. I make this decision freely and voluntarily.
CP at 12. It then conducted the following colloquy on the record:
[DEFENSE COUNSEL]: Judge, I'm handing up a waiver of jury trial in this matter. It has the appropriate language indicating that he's been fully informed. This is solely his decision to make.
THE COURT: Let me make a couple quick inquiries, Mr. Trusley.
You've discussed waiving this right, your right to a jury trial, you've discussed waiving it with [defense counsel]?
THE DEFENDANT: Yes, sir.
THE COURT: And you understand that's a very substantial and important right to have 12 people decide whether you've committed a crime, rather than just a judge, but you're willing to give that right up?
THE DEFENDANT: Yes, sir.
THE COURT: Okay. And you've signed this document, so we'll go to trial without a jury.
RP (Jan. 14, 2010) at 3. Collectively, the waiver and exchange are sufficient to establish that Mr. Trusley knowingly, intelligently, and voluntarily waived his right to a jury trial. Because a personal expression of waiver is all that is required, the trial court was not obligated to admonish Mr. Trusley about finer points of the jury trial right. The trial court did not err by granting his request.
STATEMENT OF ADDITIONAL GROUNDS
Mr. Trusley raises two additional arguments in his statement of additional grounds. He first argues that the prosecutor engaged in misconduct by not timely producing admitted photographs of the vials containing his blood sample prior to trial, citing to CrR 4.7(a)(1)(v), which requires prosecutors to disclose by the omnibus hearing any photographs in the prosecutor's possession that he or she intends to use at trial. The purpose of the rule is "to protect the defendant's interests in getting meaningful access to evidence supporting the criminal charges in order to effectively prepare for trial and provide adequate representation." State v. Boyd, 160 Wn.2d 424, 432, 158 P.3d 54 (2007). Mr. Trusley's counsel timely objected to admission of the photographs on the basis, among other grounds, that "those photographs of those blood vials were not provided to us in discovery," "[w]e just saw them a moment ago," and "[t]hey are a piece of key evidence that we should have had prior to this." RP (Feb. 2, 2010) at 156.
In response to the defense objection, the prosecutor explained that she did not have the photographs in her possession until the day they were admitted at trial. Her explanation of her late receipt of the photographs was not contested, so there is clearly no demonstration of misconduct. Mr. Trusley alleges prosecutorial misconduct rather than trial court error in admitting the photographs, but we note with respect to the latter that the photographs were of evidence that was known and available to Mr. Trusley for a number of months. Id. at 159-60. The exclusion of evidence is an extraordinary sanction that a court should impose only if no other remedy would cure the potential prejudice. State v. Hutchinson, 135 Wn.2d 863, 882-83, 959 P.2d 1061 (1998), cert. denied, 525 U.S. 1157 (1999). In general, when a defendant claims surprise at previously-undisclosed evidence, the appropriate remedy is a reasonable continuance or recess to allow investigation and response to the evidence. See State v. Linden, 89 Wn. App. 184, 195-96, 947 P.2d 1284 (1997), review denied, 136 Wn.2d 1018 (1998). This was a bench trial, making a recess or continuance relatively easy for the court to accord, but none was requested. Mr. Trusley has not shown prejudice or demonstrated that the trial court abused its discretion by admitting the photographs.
The photographs are also not a part of the record on appeal. If Mr. Trusley wishes to rely on matters outside the record, he must raise a properly supported personal restraint petition. State v. McFarland, 127 Wn.2d 322, 338 n. 5, 899 P.2d 1251 (1995).
His second argument is best characterized as a sufficiency of the evidence challenge going to the element of proximate causation. The standard of review for a defendant's challenge to the sufficiency of the evidence requires the reviewing court to view the evidence in the light most favorable to the State and determine whether any rational trier of fact could have found the elements of the charged crime beyond a reasonable doubt. State v. Brown, 162 Wn.2d 422, 428, 173 P.3d 245 (2007). "A claim of insufficiency admits the truth of the State's evidence and all inferences that reasonably can be drawn therefrom." State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992). Substantial evidence means evidence in the record of a sufficient quantity to persuade a fair-minded, rational person of the truth of the finding. State v. Hill, 123 Wn.2d 641, 644, 870 P.2d 313 (1994).
Mr. Trusley essentially argues that the evidence shows he exercised caution while driving his vehicle and therefore could not have been a proximate cause of the accident. But we need not consider contrary evidence for purposes of a substantial evidence review. The evidence supporting the trial court's finding of proximate causation is ample. Mr. Trusley was impaired by the methamphetamine in his system at the time of the collision as evidenced by field sobriety tests, blood test results, and expert opinion testimony. He was also likely driving above the speed limit. This is sufficient evidence to convince a rational person that Mr. Trusley was a proximate cause of Ms. Goulet's injuries.
We affirm the judgment and sentence.
A majority of the panel has determined that 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.
KORSMO, A.C.J.and BROWN, J., concur.