                                                                      rO.LAA, OFFILED
                                                          DIV I
 IN THE COURT OF APPEALS OF THE STATE OF WASHINGTONsliNGTo,-,                    APPEALS

STATE OF WASHINGTON,                     )                           2017 JUN 12 AH 9:
                                                                                       06
                                         )       No. 74559-0-1
                     Respondent,         )
                                         )       DIVISION ONE
              v.                         )
                                         )       UNPUBLISHED OPINION
DESTRY ADAM SCHNEBLY,                    )
                                         )
                     Appellant.          )       FILED: June 12, 2017


       TRICKEY, J. — Destry Schnebly appeals his conviction of attempting to elude

a police vehicle with a sentencing enhancement of endangerment. Schnebly

argues that the State was relieved of its burden to prove the sentencing

enhancement because the special verdict form given to the jury for the sentencing

enhancement used the language "threatened with physical injury or harm," rather

than "endangerment." Because we have previously held that the language used

in Schnebly's special verdict form is proper, we affirm.

                                      FACTS

       On January 25, 2015, Snohomish County Sheriffs Deputy Bryson McGee

arrested Schnebly after a lengthy car pursuit. Deputy McGee observed that

Schnebly had two passengers in his car. Schnebly violated numerous traffic laws

and forced other cars out of the way of the pursuit. After he was arrested, Schnebly

told the officers that neither passenger could leave the car during the pursuit.

       The State charged Schnebly with attempting to elude a pursuing police

vehicle while on community custody. The State alleged as an aggravating factor

that "one or more persons other than the defendant or the pursuing law
No. 74559-0-1 /2

enforcement officer were threatened with physical injury or harm by the

defendant's actions. .. as provided by RCW 9.94A.834."1

       At trial, Schnebly admitted that he was guilty of attempting to elude a police

vehicle. He challenged only whether he had endangered anyone other than

himself and the officer while committing his crime.2

       The jury was provided with a special verdict form that asked, "Was any

person, other than the Defendant, or a pursuing law enforcement officer,

threatened with physical injury or harm by the actions of the Defendant during his

commission of the crime of attempting to elude a police vehicle?"3 Schnebly did

not object to the special verdict form.

       The jury found Schnebly guilty of attempting to elude a police vehicle and

returned a "Yes" answer on the endangerment special verdict form.4 The trial court

sentenced Schnebly to 25 months of incarceration for his offense plus an additional

12 months and one day for the endangerment sentencing enhancement.

       Schnebly appeals.

                                     ANALYSIS

                         Endangerment Essential Element

       Schnebly argues that his due process rights were infringed when the State

was relieved of its burden of proving every element of the charged crime and

sentencing enhancement beyond a reasonable doubt. Specifically, he contends



1 Clerk's Papers(CP)at 152.
2 At the close of the State's case, Schnebly moved to dismiss the sentencing enhancement
for lack of evidence. The trial court denied the motion.
3 CP at 117.
4 CP at 117-18.

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No. 74559-0-1/ 3

that the special verdict form did not require the State to prove "endangerment"

because it asked whether anyone was "threatened with physical injury or harm,"

instead of asking whether anyone was "endangered." The State responds that our

decision in State v. Williams, 178 Wn.App. 104, 109, 313 P.3d 470(2013), controls

and precludes Schnebly's arguments. The State also argues that Schnebly cannot

raise this error because he did not object to the verdict form below. Assuming

without deciding that Schnebly has alleged a constitutional error that we can review

for the first time on review, we agree with the State that Williams controls.

       In a case involving attempting to elude a police vehicle, the State may file a

special allegation where there is sufficient evidence to show that "one or more

persons other than the defendant or the pursuing law enforcement officer were

threatened with physical injury or harm" due to the actions of the defendant. RCW

9.94A.834(1). At trial, the State must prove beyond a reasonable doubt "that the

accused committed the crime while endangering one or more persons other than

the defendant or the pursuing law enforcement officer." RCW 9.94A.834(2).

       In Williams, the appellant argued that the special verdict instruction relieved

the State of its burden to prove the sentencing enhancement beyond a reasonable

doubt because it stated "threatened with physical injury or harm" instead of

"endangered." 178 Wn.App. at 109. We upheld the special verdict form because

"threatened with physical injury or harm" provided the definition of"endangerment"

and, therefore, the jury was properly instructed on the law. 178 Wn. App. at 109.

We concluded that the instructions were sufficient and did not relieve the State of




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No. 74559-0-1 /4

its burden to prove the sentencing enhancement beyond a reasonable doubt.

Williams, 178 Wn. App. at 109.

       Schnebly's argument is identical to the one raised by the defendant in

Williams. Moreover, the special verdict forms here and in Williams were based on

the Washington Pattern Jury Instructions courts are advised to use when the

defendant is charged with attempting to elude a police vehicle with the

endangerment sentencing enhancement.            See 11A WASHINGTON PRACTICE:

WASHINGTON PATTERN JURY INSTRUCTIONS: CRIMINAL § 190.12, at 664 (3d ed.

2008); Williams, 178 Wn. App. at 107 n.1. Schnebly has not distinguished his case

from Williams in any way. Thus, we conclude that Schnebly has not shown that

the State was relieved of its burden of proving an essential element of the charged

offense.

                                  Appellate Costs

       Schnebly asks that no costs be awarded on appeal. Appellate costs are

generally awarded to the substantially prevailing party on review. RAP 14.2. But

-when a trial court makes a finding of indigency, that finding remains throughout

 review "unless the commissioner or clerk determines by a preponderance of the

evidence that the offender's financial circumstances have significantly improved

since the last determination of indigency." RAP 14.2.

       Here, the trial court found Schnebly indigent. If the State has evidence

indicating that Schnebly's financial circumstances have significantly improved

since the trial court's finding, it may file a motion for costs with the commissioner.




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No. 74559-0-1/ 5

      Affirmed.




                         ..1,
                       pet g."-\e••I
WE CONCUR:




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