Opinion
42144-5-II
01-08-2013
STATE OF WASHINGTON, Respondent, v. MARY ELIZABETH UPTON, Appellant.
UNPUBLISHED OPINION
Quinn-Brintnall, P.J.
Mary E. Upton appeals her convictions of driving under the influence (DUI) and attempting to elude a pursuing police vehicle, arguing that (1) the evidence was insufficient to prove her attempting to elude conviction, (2) the trial court commented on the evidence during closing argument, (3) the arresting officer violated her due process rights by interfering with her right to obtain an independent blood test, and (4) there was no evidence to support the trial court's finding that she has the ability to pay legal financial obligations (LFOs). The State concedes error on the final issue. We affirm the convictions but remand so that the trial court may vacate the finding regarding Upton's ability to pay.
Facts
On August 2, 2009, Allison Seamands phoned Upton and asked her to help move some household possessions to a storage facility. Upton agreed to help and brought a bottle of vodka. When she arrived at Seamands's home at approximately 5:30 pm, Upton filled a large mug (approximately 32 ounces) with vodka and added some ice and sugar-free grape flavoring. Seamands consumed about an ounce of the drink and saw Upton take several sips from the mug.
Upton has Type I diabetes but did not check her blood sugar, despite consuming alcohol and helping load items into storage. When they were done, Seamands was concerned about Upton's blood sugar level and suggested that she get something to eat. After Upton ate a few chicken strips at a gas station, she drove Seamands to a nearby Walmart. Two patrons observed the women and were concerned about their apparent level of intoxication. The couple called 911 as the two women drove away, and Officer Richard Larsen responded.
Officer Larsen saw Upton's truck leave the parking lot. He pulled in about eight cars behind the truck and activated his lights and siren. Seamands saw the police car and told Upton they were being pulled over. During his pursuit, Larsen saw Upton's truck swerve across the fog line three times, throwing road debris into the air. There was heavy traffic, and other vehicles on the roadway moved away from Upton's truck.
Officer Larsen eventually caught up with Upton so that he was directly behind her truck with his lights and siren on. Upton could see the patrol car but did not slow down or attempt to yield. Upton's driving scared Larsen and her passenger; Seamands begged and then screamed at Upton to stop.
When Upton slowed at an intersection, Seamands removed the keys from the truck's ignition. Officer Larsen exited his patrol car and ordered Upton to put her hands out the window; she yelled back, "What do you want with me?" Report of Proceedings (RP) (Mar. 14, 2011) at 140. Seamands told the officer she was afraid because Upton had almost driven off the road three times, and she added that she had tried to get Upton to stop.
Upton smelled of intoxicants and was upset, loud, and uncooperative. Officer Larsen called for backup help and Officer Shawn Washburn responded. He detected a "very strong odor of intoxicants" coming from Upton and observed that she had watery and bloodshot eyes, poor balance, and slurred speech. RP (Mar. 15, 2011) at 57. A search of her vehicle produced a half-full bottle of vodka and a mug containing 20 ounces of an alcoholic beverage.
After her arrest, Upton explained that she was a diabetic. She refused a breath test and demanded a blood test. Officer Larsen took her to the hospital to obtain one, but a blood draw was not done and she was booked into jail on charges of attempting to elude a pursuing police vehicle and DUI.
Upton moved to dismiss the DUI charge, arguing that she repeatedly requested a blood test and that Officer Larsen unreasonably interfered with her request. At the following suppression hearing, Larsen testified that when Upton asked for a blood test at the jail, he told her she would have to pay for it herself. He described taking Upton to the hospital, where she said that she was on Medicaid and that the cost of the test would be covered. Upton was emotional, and Larsen and medical personnel tried to calm her to facilitate the blood draw. They informed her that her status as a Medicaid patient did not present any obstacle to a blood draw. Upton then refused the blood draw, and Larsen returned her to the county jail.
Upton testified that she repeatedly requested but never refused a blood test. Concluding that Upton had refused the blood draw and that her refusal was not the result of Officer Larsen's actions, the trial court denied her motion to dismiss the DUI charge.
At Upton's trial, the officers and Seamands testified to the facts cited above. On cross- examination, Seamands testified that during her pursuit by Officer Larsen, Upton did not speed, did not make any lane changes, and did not go through any stop lights or stop signs. She added that Upton disagreed that she was being pulled over. Larsen confirmed that Upton was not speeding. At the end of the State's case-in-chief, Upton moved for dismissal of the attempting to elude charge, arguing that there was no evidence that she knew the officer was trying to pull her over and no evidence of reckless driving. The trial court denied the motion.
Upton testified that she brought the bottle of vodka at Seamands's request and took only a taste of the drink she made for Seamands. Upton then testified that as she drove from the Walmart, Seamands told her that a police car was behind her and that she needed to pull over. Upton said she did not believe Seamands because she was not speeding; she thought the officer would pass her when she turned off the main road. Upton added that Seamands jerked the wheel several times, and that she (Upton) saw the police lights behind her before Seamands stopped her truck. Upton said that Officer Larsen was enraged and that she could not figure out why he wanted her to get out of the truck. Upton added that she requested a blood draw repeatedly and that when she and Larsen left the hospital, he told her that she would have to pay for the test herself. She then informed him she has Medicaid.
On rebuttal, Officer Larsen testified that he told Upton before they went to the hospital that she would have to pay for a blood test but that there was no further mention of payment once they got to the hospital. He also testified that he followed Upton for "30 to 40, 30 to 45 seconds" before she stopped. RP (Mar. 15, 2011) at 162. Seamands testified that she never took the wheel of Upton's truck, that she never asked Upton to bring vodka to the move, and that Upton drank from the cup several times.
During closing argument, the prosecuting attorney sought to emphasize how long Officer Larsen had followed Upton before she stopped:
[PROSECUTOR:] Ladies and gentlemen, I'm going to show you just how long this occurred. From this point right here when the officer was finally behind, we're talking about Gilbert Road which Officer Larsen testified to. We're looking at approximately .77 miles. Officer Larsen said roughly 45 seconds to a minute. Let's see how long that is. Take a look at the second hand right there, it's on the nine.
[DEFENSE]: Objection, counsel's misstating the testimony.
THE COURT: It was 30 to 45 second[s], I believe.
[PROSECUTOR]: Forty five seconds.
THE COURT: Correct.RP (Mar. 15, 2011) at 180. Upton did not object to this correction. The jury found Upton guilty as charged. At sentencing, the trial court imposed legal financial obligations and entered a finding on Upton's judgment and sentence stating that "[t]he defendant has the ability or likely future ability to pay the legal financial obligations imposed herein." Clerk's Papers (CP) at 8.
Discussion
Sufficiency of the Evidence: Attempting to Elude
Evidence is sufficient 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. State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992). "A claim of insufficiency admits the truth of the State's evidence and all inferences that reasonably can be drawn therefrom." Salinas, 119 Wn.2d at 201. We defer to the trier of fact on issues of conflicting testimony, credibility of witnesses, and the persuasiveness of the evidence. State v. Walton, 64 Wn.App. 410, 415-16, 824 P.2d 533, review denied, 119 Wn.2d 1011 (1992).
A driver commits the offense of attempting to elude when he willfully fails or refuses to immediately bring his vehicle to a stop, after a uniformed officer in a marked vehicle gives a visual or audible signal to stop, and he drives his vehicle in a reckless manner while attempting to elude a pursing police vehicle. RCW 46.61.024(1). Upton argues that the evidence was insufficient to prove that her failure to stop was willful, that she was attempting to elude, and that she drove recklessly.
In the context of the eluding statute, "willfully" means that the driver must have knowledge that there is a pursuing police vehicle. State v. Flora, 160 Wn.App. 549, 554, 249 P.3d 188 (2011). Upton cites "undisputed evidence" that she believed Officer Larsen was not signaling her to stop. Upton herself testified, however, that she kept driving after seeing the patrol car behind her and stopped only because Seamands removed the keys. In addition, Seamands testified that she repeatedly told Upton that a police vehicle was following her and that she should stop, and Larsen testified that he eventually was directly behind Upton with his lights and siren operating. When viewed in the light most favorable to the State, the evidence is sufficient to prove that Upton's failure to stop was willful.
The evidence just cited also shows that Upton was attempting to elude Officer Larsen. When viewed in the light most favorable to the State, the evidence establishes that Upton knew a police vehicle was behind her and that she refused to stop despite her passenger's pleas.
Finally, Upton challenges the State's proof that she drove recklessly. Driving in a reckless manner means driving in a rash or heedless manner, indifferent to the consequences. State v. Roggenkamp, 153 Wn.2d 614, 622, 106 P.3d 196 (2005) (citing State v. Bowman, 57 Wn.2d 266, 270, 271, 356 P.2d 999 (1960)). The attempting to elude statute does not require that there be a probability of harm. See State v. Whitcomb, 51 Wn.App. 322, 327, 753 P.2d 565 (1988) (even under the previous "willful and wanton" standard, the State was not required to prove that anyone else was endangered by the defendant's conduct or that a high probability of harm existed). Upton argues that there is no evidence that she drove recklessly because she did not commit any traffic infractions. The evidence shows, however, that she crossed the fog line three times while driving 45 mph in heavy traffic and that other cars took evasive action as she swerved and as Officer Larsen pursued her. Her passenger was afraid that Upton was going to drive off the road, and Upton's driving frightened Larsen as well. Moreover, the jury could conclude that she drove recklessly and was indifferent to the consequences when she decided to drive after exercising and consuming alcohol, and when she knew she had low blood sugar. Viewed in the light most favorable to the State, the evidence was sufficient to prove that Upton drove recklessly and that all elements of attempting to elude were satisfied.
Comment on the Evidence
Upton argues here that the trial judge committed reversible error when he commented on the evidence by correcting the prosecutor's argument about how long Officer Larsen pursued Upton. Because Upton did not raise this objection below, she cannot raise it on appeal unless it implicates a claim of manifest error affecting a constitutional right. RAP 2.5(a)(3). A constitutional error is manifest if the appellant can show actual prejudice by making a plausible showing that the error had practical and identifiable consequences at trial. State v. Gordon, 172 Wn.2d 671, 676, 260 P.3d 884 (2011).
Article 4, section 16 of the Washington Constitution provides, "Judges shall not charge juries with respect to matters of fact, nor comment thereon, but shall declare the law." The purpose of this provision is to prevent the jury from being influenced by knowledge conveyed to it by the trial judge as to his opinion of the evidence submitted. State v. Jacobsen, 78 Wn.2d 491, 495, 477 P.2d 1 (1970). Article 4, section 16 forbids only those words or actions which have the effect of conveying to the jury a personal opinion of the trial judge regarding the credibility, weight, or sufficiency of some evidence introduced at trial. Jacobsen, 78 Wn.2d at 495. In other words, the "touchstone of error in a trial court's comment on the evidence is whether the feeling of the trial court as to the truth value of the testimony of a witness has been communicated to the jury." State v. Lane, 125 Wn.2d 825, 838, 889 P.2d 929 (1995).
Officer Larsen testified that he followed Upton for "[m]aybe 30 to 40 seconds, 30 to 45 seconds" until she stopped. RP (Mar. 15, 2011) at 162. When the prosecutor stated during closing argument that the officer followed Upton for 45 seconds to a minute, the defense objected that the prosecutor was misstating the record. The trial judge stated that he believed the length of time was 30 to 45 seconds and, after the prosecutor stated, "Forty five seconds, " the court answered, "[C]orrect." RP (Mar. 15, 2011) at 180.
Upton argues that by correcting the prosecutor's statement about the amount of time Officer Larsen followed her and by answering "correct" when the prosecutor stated it was for 45 seconds, the trial judge improperly resolved an ambiguity in the officer's testimony and left the jury with the impression that he agreed with the rest of the prosecutor's argument. This, according to Upton, led the jury to infer that the State's closing argument contained no further errors.
Assuming without deciding that the trial court's correction constituted a comment on the evidence, we disagree with Upton's assessment of its impact. Our review of the record fails to show that the court's correction had any identifiable consequences. Consequently, Upton's claim of manifest error fails.
A preferable way to handle defense counsel's objection would have been to instruct the jury to rely on its own recollection of the testimony.
Independent Blood Test
Upton argues that her due process right to gather evidence in her own defense was violated when Officer Larsen interfered with her efforts to obtain an independent blood test. See State v. McNichols, 128 Wn.2d 242, 250-51, 906 P.2d 329 (1995) (defendant has constitutional due process right to gather evidence in his own defense). This argument also fails.
Washington's implied consent statute gives law enforcement officers an effective means of obtaining physical evidence of intoxication since any person operating a motor vehicle on the roads of this state is deemed to have consented to the administration of a breath or blood test. Former RCW 46.20.308(1) (2008); State v. Bartels, 112 Wn.2d 882, 885, 774 P.2d 1183 (1989). The statute also protects the rights of a DUI suspect, in that she generally may withdraw consent before being tested. Former RCW 46.20.308(5); Bartels, 112 Wn.2d at 885. Such a refusal, however, may be used as evidence in a criminal proceeding. RCW 46.61.517; State v. Long, 113 Wn.2d 266, 272, 778 P.2d 1027 (1989).
The implied consent statute also gives the driver the right to undergo additional tests of her own choosing after she has either taken or refused the police-administered test. Former RCW 46.20.308(2); City of Blaine v. Suess, 93 Wn.2d 722, 725, 612 P.2d 789 (1980). The State has no obligation to cover the expense of additional tests for drivers who are not indigent. Gonzales v. Dep't of Licensing, 112 Wn.2d 890, 899, 774 P.2d 1187 (1989).
Upton withdrew her initial challenge to Officer Larsen's advisement about who would pay the costs of an independent blood test during the hearing on her motion. The testimony showed that any such information was not determinative, as Upton believed that Medicaid would pay for an independent blood test.
Whether a driver has refused a blood/breath alcohol test (BAC) is a question of fact. Rockwell v. Dep't of Licensing, 94 Wn.App. 531, 535, 972 P.2d 1276, review denied, 138 Wn.2d 1022 (1999). Upton contends that she denied refusing an independent blood test during the suppression hearing and that a refusal cannot be presumed from her behavior at the hospital. She assigns error to three findings of fact:
2. Officer Larsen noted the defendant to be extremely intoxicated and that her moods fluctuated wildly throughout his contact with her, from cooperative to belligerent and incoherent.
. . . .
10. Although hospital staff attempted to gather information from defendant so she could be checked-in, defendant became belligerent and non-cooperative and refused to take a blood test.
11. Officer Larsen and hospital staff attempted to reason with defendant and, in an effort to calm her down, told her that Medicaid would pay for the blood test. Defendant ultimately refused the blood test, at which point she was transported to the Clallam County Jail for booking.CP at 17-19.
We review findings of fact for substantial evidence. State v. Broadaway, 133 Wn.2d 118, 130-31, 942 P.2d 363 (1997); see also Shelden v. Dep't of Licensing, 68 Wn.App. 681, 685, 845 P.2d 341 (1993) ("'We need determine only whether the evidence most favorable to the prevailing party supports the challenged findings, even if the evidence is in conflict.'" (quoting Thomas v. Ruddell Lease-Sales, Inc., 43 Wn.App. 208, 212, 716 P.2d 911 (1986))). The testimony of the arresting officer constitutes substantial evidence to support a challenged finding. McCarthy v. Dep't of Licensing, 44 Wn.App. 848, 850, 723 P.2d 34 (1986).
Officer Larsen testified during the suppression hearing that Upton was extremely intoxicated following her arrest and that her mood fluctuated from angry to happy and back to angry during his contact with her at the jail and the hospital. Larsen testified further that Upton refused to take a blood test after being taken to the hospital for that purpose and after he and hospital staff attempted to calm her down by telling her that Medicaid would pay for it. Upton testified that she remembered the encounter with Larsen, that she was scared, and that her blood sugar was "real low. You get incoherent and I just didn't understand what was happening." RP (Apr. 8, 2011) at 39-40. She added, however, that she repeatedly requested a blood test and never communicated to Larsen that she did not want one.
The trial court reconciled this conflict in the testimony as follows:
What was interesting is the comments made by Ms. Upton that at the time and at the hospital that she became incoherent and was very confused about what was going on. I think that's probably more telling than anything else.
It does not make sense to the Court that Officer Larsen would drive her to the hospital, take her in the room in the hospital, have the nurses contact her and sort of willy nilly say let's go, we're done here. I think it's more credible and reasonable to believe she indicated she was not going to do the blood test.
One of the reasons that supports that as being reasonable is she refused to get out of the car at the Sally port, refused to take the BAC the evening in question, there were lots of refusals that were going on, and it would make more sense to believe that she refused to do the blood test at the hospital when the officer said okay, if you are not going to do . . . this then I'll take you back. I think the officer fulfilled whatever duties are necessary under the circumstances and it was the Defendant that caused the lack of blood draw rather than the officer. So I'm going to deny the motion to dismiss.RP (Apr. 8, 2011) at 50-51.
We find substantial evidence to support the challenged findings, and we agree with the trial court that the evidence supports Officer Larsen's testimony that Upton refused the offered blood test. The evidence does not support Upton's claim that the officer unreasonably interfered with her right to take an independent blood test.
Ability to Pay LFOs
Finally, Upton argues that the trial court erred in finding that she had the ability to pay the LFOs imposed without conducting any inquiry into her financial resources. The State concedes that the court's finding is erroneous. State v. Bertrand, 165 Wn.App. 393, 404, 267 P.3d 511 (2011), review denied, 175 Wn.2d 1014 (2012). Because the record on appeal has no evidence to support the trial court's finding, we vacate it as clearly erroneous. We do not, however, remand for a new sentencing hearing so that the trial court may determine Upton's ability to pay. This issue is not ripe for review until the State attempts to collect her LFOs. See Bertrand, 165 Wn.App. at 405 n.16.
When the trial court sentenced Upton on May 18, 2011, it ordered her to start paying her LFOs in August. After the trial court on remand strikes its finding that Upton has the present or future ability to pay, there must be a determination that she has the ability to pay before the State can collect her LFOs. Bertrand, 165 Wn.App. at 405 n.16.
We affirm the defendant's convictions but remand so that the trial court may strike finding 2.5 from the judgment and sentence.
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 in accordance with RCW 2.06.040, it is so ordered.
We concur: HUNT, J., VAN DEREN, J.