                                                                                                        FILED
                                                                                              102T 11c. APPEALS
                                                                                                   OF
                                                                                                     01 \   11   4

                                                                                           20111,
                                                                                                    KA R 25      AN S: 53
                                                                                            ST

                                                                                            7" 1'




    IN THE COURT OF APPEALS OF THE STATE OF WASIIIN(
                                 E

                                             DIVISION II

STATE OF WASHINGTON,


                                   Respondent,                         No. 44051 -2 -II


         V.



TIMOTHY ANDREW HOCKLEY, JR.,                                     UNPUBLISHED OPINION


                                   Appellant.




         MAXA, J. — Timothy       Hockley, appeals his conviction of attempting to elude a pursuing

police vehicle. He argues that ( 1) there is insufficient evidence to support his conviction and ( 2)


the case should be remanded so the trial court can enter a written order regarding the oral

dismissal of count two, driving with a suspended or revoked license. There is sufficient evidence

that Hockley willfully failed to immediately stop his vehicle after being given visual and audible

signals to do so and continued to drive in a reckless manner while attempting to elude a pursuing

police vehicle. Accordingly, we affirm Hockley' s conviction. We deny Hockley' s request for

remand or a written order dismissing count II because he did not raise the issue below.

                                                   FACTS


         On December 24, 2011, while driving with his girlfriend Charlene Massey, Hockley

tailgated and then passed another vehicle. Hockley entered the oncoming lane of traffic and

nearly   collided with   Pierce   County Deputy   Sheriff Matthew Smith' s   vehicle.   Smith then turned
No. 44051 -2 -II



his sheriff' s vehicle around and began following Hockley. As Smith approached Hockley' s

vehicle he activated his overhead lights. Hockley continued driving. Smith then activated his

siren, but Hockley still continued to drive. Smith continued to follow the vehicle with both his

lights and siren activated.


         During the pursuit, Hockley proceeded through a stop sign without stopping and made a

left hand turn at 35 miles per hour, causing sparks to come from the vehicle' s front left tire.

Hockley also accelerated to approximately 60 miles per hour and entered the oncoming traffic

lane in order to pass another vehicle. Finally, after driving approximately one to two miles and

making a number of turns, Hockley stopped in the driveway of Massey' s mother' s house.

         Hockley exited the car and agreed to speak with Smith. Hockley told Smith that he saw

the emergency lights but was looking for a safe place to park. Smith informed Hockley there

were a number of safe places to pull over during the pursuit. Hockley then stated that he messed

up and thought if he got the car to Massey' s mother' s house, law enforcement could not tow it

away. When Smith again asked Hockley why he did not stop, Hockley stated he thought there

might be a warrant out for his arrest.


         The State charged Hockley with felony attempting to elude a pursuing police vehicle

 count   I)   and
                    driving   with a suspended or revoked   license ( count II). The State also filed a


special allegation of endangerment. Prior to trial, the court orally dismissed count II upon an

oral motion by the State and without objection from either party.

         A jury found Hockley guilty of attempting to elude a pursuing police vehicle and

answered yes on the special verdict form alleging endangerment. The court left blank the line on

the judgment and sentence providing for dismissed charges. Hockley appeals.


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No. 44051 -2 -II



                                                         ANALYSIS


A.           SUFFICIENCY OF THE EVIDENCE


             Hockley argues that there was insufficient evidence to support his attempting to elude a

pursuing police vehicle conviction. Specifically, Hockley argues the State did not prove he drove

his vehicle in a reckless manner or that he was attempting to elude a pursuing police vehicle. We

disagree.


             Evidence is legally sufficient to support a guilty verdict if any rational trier of fact,

viewing the evidence in the light most favorable to the State, could find the elements of the

charged crime beyond a reasonable doubt. State v. Montgomery, 1.63 Wn.2d 577, 586, 183 P. 3d

267 ( 2008).        We interpret all reasonable inferences in the State' s favor. State v. Hosier, 157


Wn.2d 1, 8, 133 P. 3d 936 ( 2006).              Direct and circumstantial evidence carry the same weight.

State   v.   Varga, 151 Wn.2d 179, 201, 86 P. 3d 139 ( 2004). "[            C] redibility determinations are for

the trier     of   fact   and are not subject   to   review."   State v. Cantu, 156 Wn.2d 819, 831, 132 P. 3d


725 ( 2006).


             Under RCW 46. 61. 024( 1);


              a] ny driver of a motor vehicle who willfully fails or refuses to immediately bring
             his or her vehicle to a stop and who drives his or her vehicle in a reckless manner
             while attempting to elude a pursuing police vehicle, after being given a visual or
             audible signal to bring the vehicle to a stop, shall be guilty of a class C felony.

The trial court properly instructed the jury on the elements of this offense.

             First, Hockley argues that there was insufficient evidence to show he drove his vehicle in

a reckless manner. Because there was evidence that Hockley sped through a residential area

while running stop signs, drove in the oncoming lane of traffic, and took a turn at high speed, we

disagree.


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No. 44051 -2 -II



         To establish that an individual drove in a reckless manner, it must be shown that the


person was " `   driving in    a rash or    heedless        manner,   indifferent to the   consequences.' "   State v.


Hunley,   161 Wn.     App. 919, 926,       253 P. 3d 448 ( 2011) ( internal quotation marks omitted)


 quoting State   v.   Roggenkamp,        153 Wn.2d 614, 621 -22, 106 P. 3d 196 ( 2005)),             aff'd, 175 Wn.2d

901, 287 P. 3d 584 ( 2012).         Driving   in    a " `   reckless manner' does not mean [ driving with] a

willful or wanton      disregard for the lives          or   property   of others.' "   State v. Naillieux, 158 Wn.


App.   630, 644, 241 P. 3d 1280 ( 2010) ( internal              quotation marks omitted) (     quoting State v. Ratliff,

140 Wn. App. 12, 15, 164 P. 3d 516 ( 2007)).

         The State offered testimony at trial that Hockley drove through a residential

neighborhood at speeds in excess of 50 miles per hour while a police vehicle, with lights and


siren activated, followed him. While being followed, Hockley passed another vehicle by

entering the opposing lane of traffic at 60 miles per hour. Hockley failed to stop at two stop

signs. Hockley conducted a left hand.turn at approximately 35 miles per hour causing sparks to

emit from the vehicle' s tire. This is sufficient evidence for a rational trier of fact to conclude that


Hockley   drove the    vehicle- in a '-    rash or heedless manner, indiff6refitto the consequences.' "


Hunley,   161 Wn.     App.    at   926 ( internal    quotation marks omitted) (         quoting Roggenkamp, 153

Wn.2d at 621 -22).


         Second, Hockley argues that there is insufficient evidence to show that he attempted to

elude a pursuing police vehicle. Because there was sufficient evidence that Hockley attempted to

avoid being stopped by Smith, we disagree.

         Intent is   not a component       in establishing the          element of " `  attempting to elude a police

vehicle.' "   State   v.   Gallegos, 73 Wn. App. 644, 650, 871 P. 2d 621 ( 1994) ( quoting RCW



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No. 44051 -2 -II



46. 61. 021(   a)).   Based on the construction of the statute, attempt is given its ordinary meaning of

     to   try.' " Gallegos, 73 Wn. App.           at   650. "'   To elude' means ` to avoid slyly or adroitly (as by

artifice, stratagem, or      dexterity) :       evade.' "    Gallegos, 73 Wn. App. at 650 n. 1 ( quoting

WEBSTER' S THIRD NEW INT' L DICTIONARY 738 ( 1969)).


            There was sufficient evidence that Hockley tried to avoid Smith. He sped away from

Smith and made several quick turns after Smith turned on his lights and siren. After finally

stopping the vehicle and being placed under arrest, Hockley told Smith that that he saw Smith

behind him but did not stop because he was worried about his car being towed and he believed

there was a warrant for his arrest. Given Hockley' s actions and these statements, there was

sufficient evidence for the trier of fact to infer that Hockley tried to elude the police vehicle.

B.          ABSENCE OF WRITTEN DISMISSAL


            Hockley also challenges the sentencing court' s failure to include count II under the

dismissed charges listed on the judgment and sentence. He requests the case be remanded to the


trial court to address the error. Alternatively, he seeks a written order from this court dismissing

the charge. However, Hockley did not object -o the trial court' s failure to enter a written order of
                                            t

dismissal. Under RAP 2. 5( a), we generally do not review an issue raised for the first time on

appeal. Hockley does not argue that any of the exceptions in RAP 2. 5( a) apply. Therefore, we

decline to address this issue.


            However, neither party disputes that the court orally dismissed the charge and that entry

of a written order would            be   appropriate.     CrR 7. 8(   a) states   that "[ c] lerical mistakes in judgments,


orders or other parts of the record and errors therein arising from oversight or omission may be

corrected      by the   court ...    on   the   motion of    any party." A clerical mistake is a mistake or



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 No. 44051 -2 -II



 omission that when amended, correctly conveys the intention of the issuing court. State v.

 Priest, 100 Wn.      App.   45 1, 456, 997 P. 2d 452 ( 2000) ( citing    Presidential Estates Apartment

 Assocs.   v.   Barrett, 129 Wn.2d 320, 326, 917 P. 2d 100 ( 1996)).         Once review has been


 terminated, Hockley is free to seek modification of the trial court' s order on proper motion.

           We affirm Hockey' s conviction. We deny Hockley' s request for remand to correct the

 clerical mistake and deny Hockley' s request for a written order from this court dismissing count

 II.


           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.




                                                                                  1
                                                               MAXA, J.
 We concur:




                              a


f:


 B     GEN. .




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