Opinion
No. 35850-6-II.
October 23, 2007.
Appeal from a judgment of the Superior Court for Kitsap County, No. 06-1-01488-8, Anna M. Laurie, J., entered January 12, 2007.
Affirmed by unpublished opinion per Hunt, J., concurred in by Houghton, C.J., and Bridgewater, J.
Che Jonathan Salazar appeals his conviction for attempting to elude a pursuing police vehicle. He argues the evidence was insufficient to establish that (1) he was the driver of the vehicle that eluded the police, and (2) the pursuing police vehicle was appropriately marked. We affirm.
FACTS I. Eluding
On September 10, 2006, at approximately 12:00 am, uniformed Kitsap County Deputy Sheriff Michael Grant was patrolling State Highway 3, driving a patrol vehicle marked with Kitsap County Sheriff's Office decals. He suspected that the driver of a Ford Explorer, which was traveling the same highway, was intoxicated. Grant radioed in the Explorer's license plate numbers and activated his overhead lights. The Explorer exited the highway and stopped on the off-ramp.
The Kitsap County Sheriff's Office uniform includes tan pants, a dark green shirt with a large bright badge on the chest, and a belt with a radio, Taser, spare ammunition, key holders, double set of handcuffs, firearm, pepper spray, two flashlights and a baton.
Officer Grant's patrol vehicle on September 10, 2006, was a dark forest green 2001 Ford Crown Victoria with Kitsap County Sheriff's Office decals running down both sides and across the rear bumper, a light bar across the top, and wigwag headlights.
Grant parked his patrol vehicle about 20 feet behind the Explorer, and aimed his spotlight into the interior cabin of the stopped vehicle in order to see what the driver was doing. Grant could see that the only occupant was a male driver, who was intently watching him through the side mirror. Grant's spotlight allowed him to see the driver's face in the Explorer's side mirror. But the Explorer raced away before Grant could arrive at the driver's side door. He did, however, note the license plate number.
Grant announced over the radio that the vehicle fleeing the scene was a light brown or bronze sport utility vehicle (SUV). He pursued but lost track of the Explorer near Bond Road.
Kitsap County Deputy Sheriff Scott Jensen was patrolling Bond Road on September 10, 2006, at the time Grant stopped the Explorer. Jensen was dressed in the same officer's uniform as Grant, and he was driving a similar Kitsap County Sheriff's patrol vehicle. Jensen heard Grant's report that the SUV was fleeing the scene and observed an SUV matching Grant's description drive past him at excessive speeds. Activating his overhead lights and siren, Jensen pursued the Explorer at speeds between 90 and 100 miles per hour. Other vehicles pulled over to the side of the road to allow the two speeding vehicles to pass. Jensen ceased his pursuit after receiving orders from his supervisor.
Several days later, Grant used the Explorer's license plate number to locate the registered owner, Judy Roy, who lived in Jefferson County. The Jefferson County Sheriff's Office provided the name "Che Salazar," Roy's son. Grant entered Salazar's name into a database, obtained his photograph, and recognized Salazar as the driver of the Explorer that eluded him on September 10.
The Jefferson County Sheriff's Office explained that there was a nexus between Judy Roy and Che Salazar. The record does not explain what this nexus entailed, but the statement of probable cause and warrant requests identify Salazar as the son of the registered owner.
II. Procedure
The State charged Salazar with attempting to elude a pursuing police vehicle.
At trial, Grant and Jensen testified to the events described above. Grant identified Salazar and explained he was confident that the individual in the courtroom was the same driver of the Explorer that had eluded the police.
Salazar called his mother, Judy Roy. Roy testified that (1) she owned a gold and black 1997 Ford Explorer, with a license plate that matched the numbers reported by Grant; (2) she had entrusted the Explorer to a friend, Howard Bill; and (3) at the time of the incident, she had been in Oklahoma with the only set of keys.
Salazar also called Howard Bill and Arianna Jewell. Bill testified that the Explorer never left his property. Jewell claimed that Salazar had been asleep in her bed at the time of the incident and could not have left while she was asleep because she was a "light sleeper."
The trial court issued the jury instructions that the State proposed. Salazar did not object to the proposed instructions. The jury found Salazar guilty.
Salazar appeals.
ANALYSIS
Salazar argues that the evidence at trial was insufficient to prove he was the driver of the vehicle that eluded the police because the circumstances of the identification are not reliable, and because the testimony of Roy, Bill, and Jewell support his alibi. We disagree.
I. Standard of Review
When an appeal challenges the sufficiency of evidence in a criminal case, we review the evidence in the light most favorable to the State. State v. Thomas, 150 Wn.2d 821, 874, 83 P.3d 970 (2004). In this favorable light, evidence is sufficient to support a conviction when it permits a rational trier of fact to find that the State established the essential elements of the crime beyond a reasonable doubt. Id.
A defendant's challenge to the sufficiency of the evidence admits the truth of the State's evidence, from which we draw all possible inferences. Id. Furthermore, we must defer to the trier of fact on any issue that involves "conflicting testimony, credibility of witnesses, and the persuasiveness of the evidence." Id. at 874-75.
But issues of credibility and conflicting testimony are for the finder of fact. Id. at 874. We do not review them. Whether the State has established the identity of the accused, for example, is a question of fact for the jury. State v. Hill, 83 Wn.2d 558, 560, 520 P.2d 618 (1974). The jury should consider all relevant facts, direct or circumstantial, that may establish the identity of the person responsible for the offense. Id. In his challenge to the sufficiency of the evidence, Salazar essentially asks us to reassess the credibility of the witnesses. This we cannot do.
II. Identity
We hold that the evidence at trial sufficiently established that Salazar was the driver of the eluding vehicle. Grant stopped a Ford Explorer that belonged to Salazar's mother. As Grant was approaching the Explorer, he saw Salazar's face in the driver's side mirror. Grant positively identified Salazar in court as the driver he had seen in the mirror of the fleeing Explorer, which Jensen then pursued.
III. Pursuing Police Vehicle's Identifying Insignia
Salazar next argues that (1) because the State failed to object to the trial court's to-convict instruction, the State undertook to prove an additional element of eluding — that the pursuing police vehicle bore an identifying insignia; and (2) the State failed to prove this element. This argument fails.
If a party does not object to the proposed jury instructions, the instructions become the law of the case. State v. Salas, 127 Wn.2d 173, 182, 897 P.2d 1246 (1995). If it fails to object, "the State assumes the burden of proving otherwise unnecessary elements of the offense when such added elements are included without objection in the `to convict' instruction." State v. Hickman, 135 Wn.2d 97, 102, 954 P.2d 900 (1998).
Here, the trial court adopted the State's proposed "to convict" instruction based on former RCW 46.61.024 (2002). Salazar did not object. The to convict instruction provided:
The trial court based its instructions on Washington Practice: Washington Pattern Jury Instructions: Criminal 94.01, 94.02 (2nd ed. 1994). These instructions do not reflect the Legislature's 2003 amendment to RCW 46.61.024, which eliminated the element that a pursuing "vehicle shall be appropriately marked showing it to be an official police vehicle." In the amended version, the Legislature substituted the requirement that the vehicle only "be equipped with lights and sirens." Laws of 2003, ch. 101, § 1.
To convict the defendant of attempting to elude a pursuing police vehicle, each of the following elements of the crime must be proved beyond a reasonable doubt:
(1) That on or about the 10th day of September, 2006, the defendant drove a motor vehicle;
(2) That the defendant was signaled to stop by a uniformed police officer by hand, voice, emergency light or siren;
(3) That the signaling police officer's vehicle was appropriately marked, showing it to be an official police vehicle;
(4) That the defendant willfully failed or refused to immediately bring the vehicle to a stop after being signaled to stop;
(5) 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; and
(6) That the acts occurred in the State of Washington.
Clerk's Papers at 50 (emphasis added). The pre-amendment version of RCW 46.61.024 required the State to establish that the pursuing police vehicle was "appropriately marked," which required an identifying insignia showing that the pursuing vehicle was an official police vehicle, such as "a decal bearing the name of the police department to which the vehicle belongs." State v. Argueta, 107 Wn. App. 532, 538, 27 P.3d 242 (2001).
The evidence here was sufficient to establish that Jensen's pursuing police vehicle was "appropriately marked," as required by to convict instruction. Jensen testified that (1) his police car was "fully marked"; and (2) he had been driving the same patrol vehicle as Grant, who testified that his police car had decals running down both sides of the vehicle and across the rear bumper. Moreover, Salazar knew that he was followed by a police vehicle because immediately after he managed to elude Grant's appropriately marked vehicle, Jensen had activated his police vehicle's overhead lights and sirens as he took over the pursuit of Salazar in the Explorer. See State v. Trowbridge, 49 Wn. App. 360, 363, 742 P.2d 1254 (1987) (holding that the eluding statute simply requires knowledge that the pursuing vehicle is a police vehicle). We hold, therefore, that the evidence was sufficient to permit a reasonable jury to find that Jensen's police vehicle was appropriately marked and that Salazar recognized the vehicle that pursued him was an official police vehicle.
At trial, the State indicated that it was focusing on the pursuit by Deputy Jensen to establish the elements of the charged crime.
Holding that sufficient evidence supported the jury's finding (1) that Salazar was the driver of the vehicle that eluded the police, and (2) that the pursuing police vehicle was appropriately marked, 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.
BRIDGEWATER, J. and HOUGHTON, C.J., concur: