                                                                                                     FILED
                                                                                            OOURT  OF APPCALS
                                                                                                 DIVISIM ii
                                                                                           1a P 3 JUL 30 AM 10: 3Q
    IN THE COURT OF APPEALS OF THE STATE OF WASHIN

                                              DIVISION II

STATE OF WASHINGTON,                                                 No. 42807 5 II
                                                                               - -


                             Respondent,

        LIM




TEDDY JAY PYLE,                                                UNPUBLISHED OPINION




        PENOYAR, J. — Teddy      Pyle appeals his convictions for attempting to elude a pursuing

police vehicle, obstructing a law enforcement officer, and harassment. He argues that the trial

court had no authority to impose probationary conditions as part of his misdemeanor sentences

because he was sentenced to the maximum amount of jail time on each count. We agree. Pyle

also argues several grounds for reversal in his statement of additional grounds (SAG).None of

those issues require reversal. We remand for resentencing.

                                                 FACTS


        At 10: 0 P. . on September 3, 2011, Officer Brian Ruder saw a van run a stop sign at a
             3    M

high rate of speed" and then swerve off and back onto the road. 1 Report of Proceedings (RP)

at 83. The van then signaled left but abruptly turned right. At that point, Officer Ruder turned

on his emergency lights and followed the van. The van did not immediately pull over; instead, it
                                 into the other lane,   alternately breaking   and   accelerating.   After
sped   up and   began swerving

about three and a half blocks, the van suddenly turned into a gravel driveway at a "very high rate

of speed,"
         stopping just before it collided with a fence. 1 RP at 98.

        Pyle stepped out of the van's driver's side and began moving away from Ruder. Ruder
drew his firearm and ordered      Pyle   to   stop and show his hands. Pyle eventually turned and
42807 5 II
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walked toward Ruder,     screaming   and   acting "extremely aggressive."    1 RP at 109.   Ruder


ordered him to stop, show his hands, and get down       on   his knees.   Pyle did not comply and

continued to advance toward Ruder, so Ruder used his baton to strike Pyle in the leg. Ruder was

then able to cuff Pyle. Pyle continued to scream at Ruder and resisted entering the patrol car.

Ruder was eventually able to overpower Pyle and get him into the patrol car. The State charged

Pyle with attempting to elude a pursuing police vehicle, obstructing a law enforcement officer,

harassment, and driving while license suspended.

       The State dismissed the driving while license suspended count before the trial. The jury

convicted Pyle on all remaining counts. The trial court sentenced him to 60 days of confinement

on the attempting to elude count and 364 days on both the obstructing and harassment counts,

with the sentences to   run   concurrently. The trial court also imposed 24 months of probation

without suspending any of Pyle's jail time. Pyle appeals.

                                            ANALYSIS


I.     PROBATIONARY CONDITIONS


       Pyle first argues that the trial court had no authority to impose probationary conditions on
his misdemeanor sentences. The State concedes that the trial court erred. Because the trial court

imposed the maximum amount of jail time, it was not authorized to also order probationary

conditions. We remand for resentencing.

       A court's sentencing authority is limited to that granted by statute. State v. Skillman, 60

Wn. App. 837, 838, 809 P. d 756 (1991).Whether a sentencing court has exceeded its statutory
                        2

authority is a question of law we review de novo. State v. Murray, 118 Wn. App. 518, 521, 77

P. d 1188 (2003).
 3



                                                  2
42807 5 II
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       RCW 9.5.
           a) that " he superior court may suspend the imposition or the
           210(
              1 provides
              9 )(       t

execution of the sentence and may direct that the suspension may continue upon such conditions

and for such time   as   it shall   designate ...."       Thus, probation exists only as a condition of

suspension of part or all of a sentence. Where no jail time is suspended, probation may not be

imposed. State v. Gailus, 136 Wn. App. 191, 201, 147 P. d 1300 (2006) overruled on other
                                                      3

grounds by State v. Sutherby, 165 Wn. d 870, 204 P. d 916 (2009).
                                    2             3

       Both obstructing a law enforcement officer and harassment are gross misdemeanors.

RCW 9A. 6.
    020(
       3 RCW 020(
       7 );9A. 6.The maximum term for these gross misdemeanors
             a).2)(
                4

is 364 days. RCW 9.2. The trial court imposed 364 days of confinement for each of these
                 020.
                   9

convictions.   The trial court then imposed 24 months of probationary conditions without

suspending any of Pyle's jail time. Because the trial court imposed the maximum sentences, it
lacked authority to also impose probationary conditions. We therefore reverse the trial court's

imposition of probation and remand for resentencing.

II.    SAG


       A.      Ineffective Assistance of Counsel


       Pyle next argues that his counsel was ineffective for failing to object, failing to prepare,

and failing to propose jury instructions. His arguments are not persuasive.

       Under the Strickland' test, Pyle must show that counsel's performance was deficient and

that this deficient performance prejudiced him. State v. Thomas, 109 Wn. d 222, 225 26, 743
                                                                       2            -
P. d 816 ( 1987). Performance
 2                                     is deficient only if it "[
                                                               falls] below an objective standard of

reasonableness."Strickland, 466 U. . at 688. Performance is not deficient if counsel's conduct
                                 S

can be characterized as a legitimate trial strategy. State v. Kyllo, 166 Wn. d 856, 863, 215 P. d
                                                                           2                  3

 Strickland v. Washington, 466 U. .668, 104 S.Ct. 2052, 80 L.Ed. 2d 674 (1984).
                                S
                                                      3
42807 5 II
      - -




177 (2009). To establish prejudice, the defendant must show a reasonable probability that the

deficient performance affected the outcome of the trial. Thomas, 109 Wn. d at 226.
                                                                       2

                 1.     Failure to Object

        Pyle contends that counsel was ineffective for failing to object to the admission of

photographs of the scene and to Ruder's testimony regarding legal conclusions. His argument

fails because he cannot show that an objection to the photographs would have been sustained or

that counsel's failure to object to the testimony prejudiced him.

        Pyle argues that his counsel should have objected to the admission of photographs of the

scene. He asserts that the photographs were misleading because they were taken during the day

and did not accurately represent the visibility and parking conditions as they were on the night of

the incident. To prevail on an ineffective assistance claim based on counsel's failure to object,

the defendant must show that an objection would likely have been sustained. State v. Saunders,

91 Wn. App. 575, 578, 958 P. d 364 (1998).Pyle cannot show that an objection would likely
                           2

have been sustained here.      Although defense counsel did not object to the photographs, Pyle

himself told the trial court that he objected to the State using the photographs because they were

taken during the day. The trial court explained why the photographs were admissible, stating

that pictures taken at night would be difficult to see and that Pyle's attorney could argue during

closing argument that the conditions on the night of the incident were different from the

conditions depicted in the State's photographs.

        Pyle also argues that counsel was ineffective for failing to object to Ruder testifying
about   legal   conclusions.   Because the trial court instructed the jury to disregard Ruder's

testimony about legal conclusions, Pyle cannot show that counsel's failure to object prejudiced.
him.

                                                  d
42807 5 II
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         Ruder testified that Pyle's actions " onstituted reckless driving"and that he believed Pyle
                                             c

was " trying    to elude [ him]." RP at
                                1             104, 105. After hearing that testimony, the trial court

excused the jury and discussed with counsel and Ruder the need to avoid testifying about legal

conclusions. The trial court then instructed the jury to disregard Ruder's statement that Pyle was

attempting to elude and reminded the jury that its job is to decide whether Pyle was, in fact,

attempting to elude. Pyle cannot show that the outcome of the trial would have been different if

defense counsel, rather than the trial court,had objected to Ruder's statements.

                 2.      Failure to Prepare

         Pyle   next argues that   counsel   was   ineffective for   failing   to prepare.   Specifically, he

argues that counsel should have asked Ruder whether he passed the test to become a "fully

commissioned Washington police officer" as required by the mutual assistance agreement.
SAG at 20. Ruder, a Vancouver Police Department officer, arrested Pyle outside of Vancouver

city limits, but the trial court ruled that Ruder had jurisdiction under RCW 10. 3.and the
                                                                             070
                                                                               9

mutual law enforcement assistance agreement between Clark County and the Vancouver Police

Department. RCW 10. 3.
                070(
                   3 allows officers who possess basic law enforcement training or a
                   9 )

certificate of equivalency to enforce traffic or criminal laws throughout the state under a mutual
law enforcement assistance agreement.              Ruder testified that he attended law enforcement


academy in Wisconsin, lateral law enforcement academy in Washington, and "several hundred

hours of [ dditional] training"in Washington. 1 RP at 80. The trial court determined that Ruder
         a

met the qualifications under the statute. Because Ruder met the qualifications, Pyle cannot show

that any prejudice resulted from defense counsel failing to further question Ruder's training.



2
    This agreement is not in the record.
                                                       WO
42807 5 II
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               3.      Jury Instructions

                       a.      Statutory Defense to Attempting to Elude a Pursuing Police
                               Vehicle


       Pyle contends that counsel was ineffective for not requesting an instruction on the

statutory affirmative defense for attempting   to elude     a
                                                                pursuing police   vehicle.   Because Pyle

cannot show that the trial court would have accepted the proposed instruction, counsel's failure

to propose it does not constitute ineffective assistance.

       Under RCW 46. 1. is an affirmative defense to attempting to elude a pursuing
                 024(
                    2 it
                    6 ),

police vehicle if 1) reasonable person would not believe that the signal to stop was given by an
                  ( a

officer and (2)it was reasonable under the circumstances for the defendant to continue driving

after the signal to stop. If a defendant would not have received a proposed instruction, counsel's

decision to not request it does not result in ineffective assistance. State v. Flora, 160 Wn. App.

549, 556, 249 P. d 188 (2011).
               3

        Here, there are two prongs to the affirmative defense, and Pyle does not argue that the

first pronga reasonable person would not believe a signal to stop was givenwas met.
           —                                                               —

Further, the evidence at trial shows that a reasonable person would have believed a signal was

given. Ruder testified that he had turned on his emergency lights and siren, and Pyle admitted

that he noticed the lights. Because the evidence shows that the first prong was not met, and Pyle

does not argue that it was, the trial court was unlikely to give this instruction if defense counsel

had requested it.




                                                  31
42807 5 II
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                              b.     Lesser Included Offenses


        Pyle next argues that counsel was ineffective for failing to request jury instructions on

lesser included offenses.          Because Pyle cannot show that he was entitled to lesser included

offense instructions on any of his charged offenses, his argument fails.

        We apply a two prong test to determine whether a defendant is entitled to a lesser
                       -
included offense instruction: first,each element of the lesser offense must be a necessary element

of the charged offense; second, the evidence must support an inference that the lesser crime was

committed. State         v.   Sublett, 176 Wn. d 58, 83, 292 P. d 715 ( 2012). Regarding the second
                                             2                3


prong, the test is "`
                   whether there is evidence supporting an inference that the defendant is guilty

of the lesser offense instead ofthe greater one."'
                                                State v. Gallegos, 73 Wn. App. 644, 652, 871

P. d 621 (1994)quoting State v. Bergeson, 64 Wn. App. 366, 369, 824 P. d 515 (1992)).
 2              (                                                    2              We

view the evidence in the light most favorable to the party requesting the instruction. Sublett, 176

Wn. d at 83.
  2


        Pyle first argues that his counsel should have requested a failure to obey jury instruction.

Washington courts have previously recognized that failing to obey is a lesser included offense of

attempting     to elude   a   pursuing police   vehicle.     Gallegos, 73   Wn. App. at 652.          Therefore, the

issue is whether the evidence supports an inference that Pyle is guilty only of failing to obey

rather than attempting to elude a pursuing police vehicle.

            A person is guilty of failing to obey an officer if he "willfully fails to stop when

requested or signaled to do so by a person reasonably identifiable as a law enforcement officer or

fails]to comply with RCW 46. 1.RCW 46. 1. A person is guilty of attempting to
                         021(
                            3
                            6 )." 6022.
elude                officer if he "willfully fails        refuses to   immediately bring   his ...     vehicle to a
        a   police                                    or




stop and ...      drives his ...     vehicle in a reckless manner while attempting to elude a pursuing
                                                            7
42807 5 II
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police vehicle, after being given a visual or audible signal to bring the vehicle to a stop."RCW

024(
46. 1.A person acts recklessly when he knows of and disregards a substantial risk that a
   1
   6 ).

wrongful act may occur and his disregard of the risk is a gross deviation from conduct that a

reasonable person would exercise in the same situation. RCW 9A. 8. 1)(
                                                            01 0(
                                                              0 c).

       All of the evidence of the nature of Pyle's driving after he was signaled to stop was that it

was reckless. Ruder testified that, after he turned on his lights, Pyle immediately sped up and

began swerving        into the other lane and   signaling erratically. Pyle also "spiked the brakes"

several times and then accelerated. 1 RP at 90.          He eventually turned abruptly into a gravel

driveway   at     very high
                a "            rate of   speed."   1 RP at 98. Ruder further stated that this was a


residential area and that he had previously observed other cars and pedestrians on the road at that

time of night. Ruder testified that, given the nature of the area and Pyle's driving, Pyle's actions

jeopardized others' safety. Even viewing the evidence in a light most favorable to Pyle, he was

driving recklessly. And because he was driving recklessly, Pyle has failed to prove that he was

guilty only of the lesser included offense of failing to obey; therefore, he was not entitled to an

instruction on failing to obey and counsel was not deficient for failing to request one.
       Next, Pyle argues that his counsel should have requested a resisting arrest instruction.

Because resisting arrest is not a lesser included offense of obstructing a law enforcement officer,

counsel was not ineffective for failing to request this instruction.




3
 Pyle also argues that there is insufficient evidence that he drove recklessly. 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. Longshore, 141 Wn. d 414, 420 21, 5 P. d 1256 (2000).As discussed above,
                                      2              -        3
there is sufficient evidence to support the jury's finding that Pyle was driving recklessly.
                                                     8
42807 5 II
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         A person is guilty of obstructing a law enforcement officer if he willfully hinders, delays,

or obstructs any law enforcement officer in the discharge of his official powers or duties. RCW

020(
9A. 6.A person is guilty of resisting arrest if he intentionally attempts to prevent a peace
   1
   7 ).

officer from lawfully arresting him. RCW 9A. 6.
                                         040(
                                            1
                                            7 ).

         Resisting arrest is not a lesser included crime of obstructing a law enforcement officer

because the elements of resisting arrest are not necessary elements of obstructing a law

enforcement officer. Resisting arrest requires intent, while obstructing requires only willfulness.

RCW      9A. 6.RCW 9A. 6. Resisting arrest also requires an arrest, while
            1); 040(
         020(
            7        1
                     7 ).

obstructing requires only that a person interfere with an officer's official duties, which include—

but are not limited to— RCW 9A. 6.
                      arrest. 020(
                                 1 RCW 040(
                                 7 );9A. 6.
                                          1
                                          7 ).

         Finally, Pyle argues that his counsel should have requested an instruction on third degree
assault. Third degree assault is a class C felony, and the State charged Pyle with gross

misdemeanor harassment. RCW 9A. 6.
                            031(
                               2 RCW 020(
                               3 );9A. 6.
                                     a). Pyle
                                        2)(
                                        4 Even assuming that

was entitled to a third degree assault instruction, it was a legitimate trial strategy for defense
                                                                                           (

counsel to not request an instruction on a crime that carried a potentially greater punishment.




4
    Pyle alternates between requesting an instruction on third degree and fourth degree assault.
However, an instruction on fourth degree assault, even if it were a lesser included offense, would
not fit the facts of this situation.  A person is guilty of fourth degree assault if, under
circumstances not amounting to assault in the first, second, or third degree, he assaults another.
RCW 9A. 6. Here, if an assault did occur, it is more appropriately categorized as third
    041(
       1
       3 ).
         assault because it occurred while     Pyle   was   attempting   to   prevent his   arrest.   RCW
degree
a)
031(
9A. 6. person is guilty of third degree assault if he assaults another with intent to
   1 a
   3 )(             (
prevent or resist the execution of any lawful process or the lawful apprehension or detention of
himself).
                                                  9
42807 5 II
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        B.      Leading Questions

        Pyle also argues that the prosecutor asked leading questions and that both the prosecutor

and Ruder stated " misleading                    SAG at 6.
                                    conclusion[s]." Neither of these arguments are

persuasive. Before introducing photographs into evidence, the prosecutor asked Ruder, who

took the photographs, whether they were "accurate and fair depictions of the incident scene." 1

RP at   89.    The context of this question indicates that the prosecutor was attempting to

authenticate the photographs and was asking Ruder whether the photographs had been altered.

See ER 901. This question was not improper under the circumstances. The other statements that

Pyle takes exception to all involve whether there were spaces for him to pull over safely. He

argues that there were no places to pull over and that the prosecutor's and Ruder's references to

these spots were,misleading conclusion[s]."Whether or not Pyle had space to pull
                  "                     SAG at 6.

over is a factual question and notas Pyle argues a legal conclusion. It is the jury's job to
                                  —              —

resolve disputed factual issues, and we will not review the jury's credibility determinations.

State v. Cantu, 156 Wn. d 819, 831, 132 P. d 725 (2006)credibility determinations are for the
                      2                  3              (

trier of fact and are not subject to review).

        C.      Speculative Testimony

        Next, Pyle contends that the trial court erred by allowing Ruder's speculative testimony.

Because Ruder's testimony was based on his rational observations of Pyle's driving, the trial

court did not err by allowing it.

        The prosecutor asked Ruder whether " t was]possible that the defendant could have hit a
                                           i [

pedestrian."   1 RP at 93.       Defense counsel objected to the question as speculative, and the

prosecutor offered to rephrase, instead asking Ruder if Pyle's driving jeopardized the safety of

pedestrians, bicyclists,   or   other vehicles.   Ruder said yes to each and added that this was a
                                                    10
42807 5 II
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residential    area.     Defense counsel again objected, and the trial court overruled the objection,

stating that Ruder's answers " ould indicate where [Pyle has] driven."1 RP at 93.
                             w

         A lay witness may give an opinion if it is rationally based on his perceptions and helpful

to the jury. ER 701. The trial court has "wide discretion" to admit such testimony. State v.
Kinard, 39 Wn. App. 871, 874, 696 P. d 603 (1985).
                                   2

         Ruder's testimony was based on his perceptions about where and how Pyle was driving.

Ruder testified that this was a residential area and that he had previously seen people "out and

about"in the area at the time of night when the incident occurred. 1 RP at 94. He also testified

that   Pyle   was "swerving      from side to side all   over   the   roadway." 1   RP at 90.     Ruder's assertion


that Pyle could have hit other vehicles or pedestrians was based on these observations. Because

his testimony was based on facts that he observed, the trial court did not err by allowing it.

         D.           Vagueness

          Finally, Pyle asserts that all three statutes he was charged under are void for vagueness.

He argues that the attempting to elude statute, RCW 46. 1.is vague because it does not give
                                                    024,
                                                      6

distance and time designations. But a statute is not vague merely because it does not contain

such    specific   standards     as   Pyle advocates. City of Spokane v. Douglass, 1 15 Wn. d 171, 179,
                                                                                          2

795 P. d 693 (1990)the vagueness doctrine does not require impossible standards of specificity
     2              (

or absolute agreement);City ofSeattle v. Eze, 111 Wn. d 22, 27, 759 P. d 366 (1988) ( " statute
                                                    2                2              a

is not unconstitutionally vague merely because a person cannot predict with complete,certainty

the exact     point    at which his actions would be classified          as   prohibited   conduct ").   Pyle fails to

give    any    reasons    why    the other two statutes     are   vague.       Therefore, we do not review his

5
    Although Ruder could be classified as an expert, this particular testimony was "not based on
scientific, technical,      or    other   specialized knowledge."         ER 701.      Therefore, this particular
testimony is better analyzed under ER 701, which involves opinion testimony by lay witnesses.
                                                          11
42807 5 II
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arguments. State   v.   Johnson, 119 Wn. d 167, 171, 829 P. d 1082 ( 1992) ( "
                                       2                  2                Parties raising

constitutional issues must present considered arguments to this court. ").

       We remand for resentencing.

       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

040,
2.6.it is so ordered.
  0




We concur:




                              w



       Hunt, J.




                          y



         jo   n, _..,
               J




                                                12
