                                                        Fiizn
                                                COURT Gr APPEALS DiV j
                                                 STATE OF WASHINGTON

                                                2013MAR -U AH 10: 39




   IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON


STATE OF WASHINGTON,
                                                      No. 67376-9-
                     Respondent/
                     Cross-Appellant,                 DIVISION ONE




JORDYN BALEIGH WEICHERT,                              UNPUBLISHED OPINION


                     Appellant/                       FILED: March 4, 2013
                     Cross-Respondent.


       Becker, J.—Jordyn Weichert appeals from the judgment and sentence

entered after a jury found her guilty of three counts of vehicular homicide and two

counts of vehicular assault. We reject her claim that defense counsel was

constitutionally deficient when he failed to renew challenges to drug-related evidence

after the trial court dismissed charges based on the driving under the influence

alternative. Weichert's arguments in her statement of additional grounds are also

without merit. We therefore affirm her convictions. We remand only to permit the

trial court to strike an unnecessary finding from the judgment and sentence.

       On the evening of September 3, 2010, 20-year-old Jordyn Weichert was

driving a 1994 Chevrolet Blazer northbound on SR 20 near Oak Harbor. The
No. 67376-9-1/2



Blazer's owner, Samantha Bowling, was sitting in the front passenger seat. Jacob

Quistorf and Francis Malloy sat in the backseat.

       When Weichert indicated she was cold, Bowling took off her sweater and

handed it to Weichert. Weichert removed her hands from the steering wheel and

began to put on the sweater. In the meantime, Bowling grabbed the wheel to steer.

At this point, the Blazer was moving at about 50 m.p.h. on a dry, straight stretch of

SR20.

        When she heard Weichert say "okay," Bowling let go of the steering wheel. A

short time later, when the Blazer started drifting to the right, Bowling noticed that

Weichert had not retaken control of the steering wheel. Both women grabbed the

wheel and tried to correct the Blazer's drift.

        The women eventually overcorrected the Blazer's movements, causing it to

swerve into the southbound lane, where it collided with an oncoming Subaru

Outback. The Blazer hit the Subaru at an angle and rolled over the top of it, crushing

the roof and instantly killing the driver, Brian Wood. Wood's wife, who sat next to

him, suffered a broken nose, a concussion, and bleeding inside her skull.

        After crushing the Subaru, the Blazer rolled several more times before coming

to a rest on its roof. Weichert, Bowling, and Malloy were ejected during the accident.

Both Malloy and Quistorf died. Weichert and Bowling survived and spoke with

officers at the scene. Officers recovered a blue backpack thrown from the Blazer that

contained marijuana, heroin, methamphetamine, and drug paraphernalia.

                                                 -2-
No. 67376-9-1/3



      Weichert told Washington State Trooper Jason Nichols that she had smoked

marijuana at about 10:00 a.m. on the morning of the accident, but denied consuming

any other drugs. Weichert's blood pressure and pulse were elevated at the scene,

and Nichols observed that her eyes were extremely bloodshot and watery. A

technician took a blood sample while Weichert was being treated at the hospital.

Bowling denied using drugs with Weichert on the day of the accident or seeing

Weichert use drugs.

      The State charged Weichert with three counts of vehicular homicide and two

counts of vehicular assault. Each count was based on all three alternative means:

(1) driving while under the influence, (2) driving in a reckless manner, and (3) driving

with disregard for the safety of others. See RCW 46.61.520(1); RCW 46.61.522(1).

The State charged Bowling with nearly identical counts of vehicular homicide and one

count of vehicular assault. Bowling eventually pleaded guilty and testified at trial.

       Lisa Noble, a toxicologist, testified that Weichert's blood sample contained a

methamphetamine level of 0.33 milligrams per liter, a morphine level of 0.08

milligrams per liter, and carboxy THC level of 7.3 nanograms per milliliter. Noble

explained that morphine in the blood results from the ingestion of either morphine or

heroin. The presence of carboxy THC established that Weichert was not under the

influence of marijuana at the time of the blood draw, but only that she had used

marijuana at some earlier time. Noble was unable to determine whether Weichert

was impaired based solely on the level of drugs in her blood.
No. 67376-9-1/4



       At the close of the State's case, Weichert moved to dismiss all charges based

on the driving under the influence and reckless driving alternatives. The trial court

agreed that under the circumstances, the evidence of drugs in Weichert's blood and

the presence of bloodshot and watery eyes was insufficient to support an inference

that she was impaired at the time of the accident. The court dismissed the driving

under the influence alternative but found sufficient evidence to submit the reckless

driving and disregard of others alternatives to the jury.

       The jury was unable to reach a verdict on reckless driving but found Weichert

guilty of all five counts based on the driving with disregard alternative. The court

imposed a standard range sentence.

Ineffective Assistance of Counsel

       Weichert contends that defense counsel was constitutionally deficient when he

failed to renew objections to the admission of drug-related evidence at the conclusion

of the State's case. She argues that once the trial court dismissed the driving under

the influence charges, evidence that she consumed drugs became irrelevant and

highly prejudicial because the State's expert could not identify the specific effect the

drugs had on her driving ability.

       To prevail on a claim of ineffective assistance, Weichert must show both (1)

that defense counsel's representation fell below an objective standard of

reasonableness and (2) resulting prejudice, i.e., a reasonable probability that but for

counsel's deficient performance, the result of the proceeding would have been


                                             -4-
No. 67376-9-1/5



different. State v. McFarland. 127 Wn.2d 322, 334-35, 899 P.2d 1251 (1995). We

necessarily begin our analysis with a "strong presumption" that counsel's

performance was reasonable. State v. Kvllo, 166 Wn.2d 856, 862, 215 P.3d 177

(2009). To rebut this presumption, the defendant must establish the absence of any

conceivable legitimate tactic explaining counsel's performance. State v. Grier, 171

Wn.2d 17, 42, 246 P.3d 1260 (2011). We review ineffective assistance claims de

novo. State v. Sutherbv. 165 Wn.2d 870, 883, 204 P.3d 916 (2009).

       In order to convict Weichert of vehicular homicide and vehicular assault as

charged in this case, the State was required to prove that she drove "with disregard

for the safety of others." RCW 46.61.520(1 )(c); see also RCW 46.61.522(1 )(c).

Disregard for the safety of others is an aggravated kind of negligence falling short of

recklessness but constituting a more serious dereliction than the hundreds of minor

oversights and inadvertences encompassed within the term "negligence." State v.

Lopez, 93 Wn. App. 619, 623, 970 P.2d 765 (1999). Some evidence must

demonstrate the defendant's "conscious disregard" of the danger to others. Lopez,

93 Wn. App. at 623.

       Lisa Noble, the toxicologist, testified that heroin is a narcotic analgesic and

that its primary effect is to cause sleepiness or sedation. The ingestion of heroin may

also slow the user's reaction time and affect coordination. Noble explained that the

consumption of methamphetamine, a stimulant, generally begins with an "up" phase

that may involve jerky movements and agitated behavior. During the "down" phase,
No. 67376-9-1/6



the user may experience sleepiness and increased reaction times. Noble stated that

difficulty in maintaining lane position and in focusing attention were consistent with

the use of heroin and methamphetamine, but the exact effect on a driver would

depend on the specific person involved and the timing of the drug consumption.

       Evidence is relevant if it makes a fact of consequence more or less likely to be

true. ER 401. The trial court found the evidence insufficient to establish that

Weichert was driving under the influence and dismissed that alternative from the

charged offenses. But as the trial court also suggested, the evidence remained

admissible for the remaining charges. In particular, Weichert's decision to ingest

heroin and methamphetamine before driving, along with evidence of the potential and

unpredictable effects of consumption, was highly relevant to the jury's determination

of whether she was driving with disregard for the safety of others. The jury

appropriately considered that evidence along with Weichert's removal of her hands

from the steering wheel to change clothing, her decision to hand over control of the

Blazer to a passenger, and the other egregious driving errors that led to

overcorrection and loss of control. Given the specific purpose of the evidence, the

potential prejudice did not outweigh its relevance.

      When a defendant claims ineffective assistance based on counsel's failure to

challenge the admission of evidence, the defendant must show, among other things,

that an objection to the evidence likely would have been sustained. State v.

Saunders, 91 Wn. App. 575, 578, 958 P.2d 364 (1998). Because the evidence
No. 67376-9-1/7



remained relevant, Weichert cannot demonstrate the trial court would likely have

sustained an objection to the continued admissibility of the drug evidence. Her claim

of ineffective assistance therefore fails.

Ability To Pay Court Costs

       Weichert next contends the trial court erred in imposing $317 in discretionary

legal financial obligations because the record lacks substantial evidence to support

the boilerplate finding on the judgment and sentence that she had the ability or likely

future ability to pay the obligations. The State agrees the record lacks such

evidence.


       The relevant statute provides: "The court shall not order a defendant to pay

costs unless the defendant is or will be able to pay them. In determining the amount

and method of payment of costs, the court shall take account of the financial

resources of the defendant and the nature of the burden that payment of costs will

impose." RCW 10.01.160(3). Under this statute, formal findings are not required to

document the court's basis for deciding for or against the imposition of the

discretionary costs:

              Neither the statute nor the constitution requires a trial court to
       enter formal, specific findings regarding a defendant's ability to pay
       court costs. According to the statute, the imposition of fines is within
       the trial court's discretion. Ample protection is provided from an abuse
       of that discretion. The court is directed to consider ability to pay, and a
       mechanism is provided for a defendant who is ultimately unable to pay
       to have his or her sentence modified. Imposing an additional
       requirement on the sentencing procedure would unnecessarily fetter the
No. 67376-9-1/8



       exercise of that discretion, and would further burden an already
       overworked court system.

State v. Curry, 118 Wn.2d 911, 916, 829 P.2d 166 (1992). The proper time for

findings "is the point of collection and when sanctions are sought for nonpayment."

State v. Blank, 131 Wn.2d 230, 241-42, 930 P.2d 1213 (1997); see also State v.

Baldwin, 63 Wn. App. 303, 310, 818 P.2d 1116, 837 P.2d 646 (1991) ("the

meaningful time to examine the defendant's ability to pay is when the government

seeks to collect the obligation"). The boilerplate finding of ability to pay is therefore

surplusage, unnecessary under the statute. Because it is unnecessary, it should

probably be removed from the form judgment and sentence.

       The imposition of $317 in discretionary legal financial obligations is affirmed as

a proper exercise of the court's discretion under RCW 10.01.160(3) as construed in

Curry. We remand to the trial court with directions to strike the finding from the

judgment and sentence, not because the finding is unsupported by substantial
evidence, but because it is unnecessary. See State v. Bertrand, 165 Wn. App. 393,

405, 267P.3d511 (2011), review denied, 175Wn.2d 1014(2012).

State's Cross Appeal and Weichert's Motion to Strike

       In its cross appeal, the State contends that it is entitled to retry Weichert on

the alternative of driving under the influence should this court reverse her convictions

on appeal and remand for a new trial. Weichert has moved to dismiss the cross

appeal, arguing that reinstatement of the charge would constitute double jeopardy.




                                              -8-
No. 67376-9-1/9




Because we affirm Weichert's convictions, we do not address the cross appeal or the

motion to dismiss.

Statement of Additional Grounds for Review

       In her statement of additional grounds for review, Weichert contends the trial

court erred in refusing to allow defense counsel to argue that the Blazer's mechanical

defects were an intervening, superseding cause of the accident. David Temple, the

State's expert, examined the Blazer and found a slight movement in the left front tie

rod end. He concluded, however, that the condition had no effect on the Blazer's

steering ability or tracking characteristics. The defense did not present any

controverting evidence. Nor has Weichert identified any specific evidence of

mechanical defects that could have constituted an intervening cause of the accident.

Because there was no supporting evidence, the trial court properly refused to permit

the proposed argument. See generally State v. Souther, 100 Wn. App. 701, 710, 998

P.2d 350, review denied, 142 Wn.2d 1006 (2000).

       Weichert alleges prosecutorial vindictiveness based on the State's cross

appeal. Because we are not considering the cross appeal, this allegation need not

be considered.

       Weichert contends the sentencing court erred in denying the defense's

request for an exceptional sentence below the standard range based on the

argument that Bowling, a victim of one of the counts of vehicular assault, was "to a

significant degree ... an initiator, willing participant, aggressor, or provoker of the
No. 67376-9-1/10




incident." RCW 9.94A.535(1)(a). The record shows the trial court did consider

Weichert's request for an exceptional sentence below the standard, noting that in a

general sense, Bowling "was a willing participant in the incident." But the court also

concluded that the presence of other, uninvolved victims outweighed this factor under

the circumstances of this case. This exercise of the court's discretion does not

warrant review.

       In her three remaining grounds, Weichert contends the trial court erred in

admitting evidence of her drug use and permitting the State to base arguments on

that evidence. For the reasons set forth above, however, the evidence was relevant

and admissible. Weichert's challenge therefore fails.

       We affirm Weichert's convictions; we remand only for the trial court to strike

the finding of Weichert's ability to pay from the judgment and sentence.



                                                   ^eJ^e,                  ~£-




WE CONCUR:




                                            -10-
