      IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON,
                                                   DIVISION ONE
              Respondent,
                                                   No. 68812-0-1
                    v.
                                                   UNPUBLISHED OPINION               ^             o/
CHRIS ROBERT MORTENSON,                                                                  03

                                                                                                    crtr'
              Appellant.                           FILED: March 31, 2014
                                                                                                          t."-*



                                                                                              XT        '"r'.~
       Dwyer, J. — Chris Mortenson's first trial on charges of felony driving

under the influence of intoxicants (DUI) and attempting to elude a pursuing police

vehicle ended in a mistrial. Prior to both the first and second trials, Mortenson's

counsel went to great lengths to arrange a procedure whereby Mortenson could
stipulate to an element of the DUI charge (that he had four prior DUI convictions)
without directly informing the jury of that highly prejudicial fact. After a series of
rulings, the judge who presided over the first trial allowed Mortenson to enter into
a stipulation that he had four prior convictions for violation of RCW 46.61.5055, a
reference to the DUI sentencing statute. In this way, the court intended to allow
Mortenson to "sanitize" the impact of the prior offenses while still allowing the

State to prove the charge.

       After the mistrial, the case was assigned to a second judge. Pretrial

motions resulted in the second judge adopting the first judge's ruling on the
stipulation procedure. However, atthe beginning of jury selection for the second
trial, the judge chose to read the information to the prospective jurors. This
No. 68812-0-1/2



resulted in the jurors learning that Mortenson was charged with DUI,

accompanied by a statutory reference to RCW 46.61.5055, and that he was

alleged to have four prior offenses that constituted violations of RCW 46.61.5055.

In this way, the judge inadvertently informed the jurors of Mortenson's prior DUI

conviction history, notwithstanding the previous efforts of counsel and the court

to keep this knowledge from the jury.

      At the next break in the proceedings, while the prospective jurors were out

of the court room, Mortenson requested that the present prospective jurors be

replaced with a new venire. The trial court denied his request for relief and took

no action designed to address the problem created for Mortenson and his

counsel by the inadvertent disclosure of Mortenson's DUI conviction history to

the prospective jurors. Believing that Mortenson was entitled to a remedy and,

on the DUI charge, was prejudiced by the absence of a remedy, we reverse that

conviction. Finding that the error did not prejudice Mortenson on the attempting

to elude charge, and that sufficient evidence was admitted in support of the jury's

verdict on that count, we affirm that conviction.

                                          I


       On August 21, 2010, at approximately 2:00 a.m., Mortenson was driving a

Ford Thunderbird after an evening at a bar in Milton. Mortenson had two

passengers in his vehicle—Catherine Lowrey and John Underdown. At that
same time, Deputy Jeffrey Petrenchak was on patrol on Military Road South in
King County, driving a marked sheriff's department vehicle. Deputy Petrenchak
observed a Ford Thunderbird driving northbound at 65 miles per hour on a

                                         -2-
No. 68812-0-1/3



stretch of road with a posted speed limit of 45 miles per hour. Deputy

Petrenchak pulled onto the shoulder and activated his lights. The Thunderbird,

however, did not stop or slow down.

       Deputy Petrenchak made a u-turn and accelerated to 75 miles per hour in
order to catch up to the vehicle. The deputy activated his siren, but the vehicle

still did not stop. The vehicle turned left onto South 342nd Street. As Deputy
Petrenchak pursued the vehicle, he observed the vehicle cross the center line
and the fog line a number of times. The deputy testified that, "He appeared to be
driving erratically to me." Lowrey, in a statement to officers following the incident,
also described Mortenson's driving as "erratic."

       The Thunderbird proceeded to make five more turns as it travelled through
a residential area. During this time, Lowrey told Mortenson to stop, but he did
not do so. After driving for over a mile with the police vehicle pursuing him,
Mortenson finally came to a stop. Mortenson did not pull to the side of the road,
however, but, instead, "pulled into the oncoming lane and stopped at about a 45
degree angle."

       Because the vehicle had failed to stop for a mile and a half, and because

 he could see two passengers in the vehicle, Deputy Petrenchak approached the
Thunderbird with his weapon drawn. The deputy demanded that the driver show
 his hands. Instead of showing his hands, Mortenson exited the vehicle and
 "started kind of stumbling and staggering back towards [the] patrol car." Deputy
 Petrenchak repeatedly yelled at Mortenson to get on the ground, but Mortenson
 did not do so. During this time, Deputy Petrenchak observed that Mortenson was
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No. 68812-0-1/4



"uneasy on his feet," slurring his speech, and smelled strongly of intoxicants.

       Mortenson crossed in front of the patrol vehicle and stumbled eastbound,

with his back toward the deputy. When Mortenson turned around, the deputy

fired his Taser. The Taser probes failed to penetrate Mortenson's clothing, and

Mortenson again turned away from the deputy. Deputy Petrenchak fired his

Taser a second time, this time causing Mortenson to fall face first to the ground.

Deputy Petrenchak ordered Mortenson to show his hands, but he would not

comply until the deputy activated his Taser once more. The deputy then placed

Mortenson under arrest.

       The State charged Mortenson with felony DUI,1 attempting to elude a




       1(1) Aperson is guilty ofdriving while under the influence ofintoxicating liquor,
       marijuana, or any drug if the person drives a vehicle within this state:
               (a) And the person has, within two hours after driving, an alcohol
       concentration of 0.08 or higher as shown by analysis of the person's breath or
       blood made under RCW 46.61.506; or
              (b) The person has, within two hours after driving, a THC concentration
       of5.00 or higher as shown by analysis ofthe person's blood made under RCW
       46.61.506; or
               (c) While the person is under the influence of oraffected by intoxicating
       liquor, marijuana, or any drug; or
               (d) While the person is under the combined influence ofor affected by
       intoxicating liquor, marijuana, and any drug.

                (6) It is a class C felony punishable under chapter 9.94A RCW, or
       chapter 13.40 RCW ifthe person is a juvenile, if:
               (a) The person has four or more prior offenses within ten years as
       defined in RCW 46.61.5055; or
                (b) The person has ever previously been convicted of:
                (i) Vehicular homicide while under the influence of intoxicating liquor or
       any drug, RCW 46.61.520(1 )(a);
                (ii) Vehicular assault while under the influence ofintoxicating liquor or
       any drug, RCW 46.61.522(1 )(b);
                (iii) An out-of-state offense comparable to the offense specified in (b)(i)
       or (ii) of this subsection; or
                (iv) Aviolation ofthis subsection (6) or RCW 46.61.504(6).
 RCW 46.61.502.


                                                -4-
No. 68812-0-1/5



pursuing police vehicle,2 driving while license suspended/revoked in the second

degree,3 and tampering with a witness.4 Mortenson pleaded guilty to driving

while license suspended, and the State dismissed the charge of tampering with a

witness.


       Mortenson's initial trial proceeded before Judge Brian Gain. During that

trial, two witnesses testified to evidence that the court had previously excluded.

This caused Judge Gain to declare a mistrial.

       Mortenson's case was reassigned to Judge Lori Smith. Before trial, in a

repeat of a procedure that had been worked out as the result of several rulings
made by Judge Gain, Mortenson stipulated to the fact that he had four prior
convictions "pursuant to RCW 46.61.5055" (the statute defining DUI convictions
and controlling DUI sentencing). This was done to avoid having the jury hear

       2Any 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 ofa class C
       felony. The signal given by the police officer may be by hand, voice, emergency
       light, orsiren. The officer giving such a signal shall be in uniform and the vehicle
       shall be equipped with lights and sirens.
RCW 46.61.024(1).
       3It is unlawful for any person to drive a motor vehicle in this state while that
       person is in a suspended orrevoked status or when his or her privilege to drive is
       suspended or revoked in this or any other state.
RCW 46.20.342(1).
       4Aperson is guilty of tampering with a witness if he orshe attempts to induce a
       witness or person he or she has reason to believe is about to be called as a
       witness in any official proceeding or a person whom he or she has reason to
       believe may have information relevant to a criminal investigation orthe abuse or
       neglect of a minor child to:
                (a) Testify falsely or, without right or privilege to do so, to withhold any
       testimony; or
                (b) Absent himself or herself from such proceedings; or
                (c) Withhold from a law enforcement agency information which he or she
        has relevant to a criminal investigation or the abuse or neglect of a minor child to
       the agency.
 RCW 9A.72.120(1).
No. 68812-0-1/6



evidence that Mortenson had been convicted of DUI four times in the past ten

years. At the commencement of jury selection, Judge Smith chose to read the

information to the jury pool. The information, as read to the potential jurors,

stated:


          The defendant, Chris Robert Mortenson, in King County,
          Washington, on or about August 21, 2010, drove a vehicle within
          this State while under the influence or affected by intoxicating liquor
          or any drug while under the combined influence of or affected by
          intoxicating liquor and any drug, having at least four prior offenses
          as defined under RCW 46.61.5055(14)(a) within 10 years of the
          arrest for the current offense contrary to RCW 46.61.502 and RCW
          46.61.5055 and against the peace and dignity of the State of
          Washington.

Before the parties began questioning the panel, Mortenson moved for a new

venire. The judge denied the motion.

          During voir dire, juror 31 stated before the entire panel that she would

have trouble being impartial because "I just heard prior that the defendant had

four prior convictions or something such as that that someone said."5 Mortenson

did not object, but noted later for the record that "our point was illustrated by

Juror No. 31 who was aware of four prior DUIs."

          During the presentation of the evidence, the following stipulation was read

to the jury:

          The Defendant, Chris Robert Mortenson, and the State of
          Washington stipulate and have agreed that certain facts are true.
          You must accept as true the following facts:


          5 Juror 31 was dismissed for cause, along with five other panel members who stated that
they could not be impartial in a DUI case. Two additional jurors were dismissed for cause
because they stated that they could not be fair in any case involving alcohol. Three jurors were
dismissed for cause due to reasons unrelated to the specific offenses charged.

                                               -6-
No. 68812-0-1/7



        As to Count II:

        (3) That at the time of the arrest, the defendant had been previously
        convicted of four or more prior offenses within ten years pursuant to
        RCW 46.61.5055.

At the close of the evidence, the trial court gave the following instruction to the

jury:

               Certain evidence has been admitted in this case for only a
        limited purpose. This evidence consists of the stipulation, that at
        the time of the arrest in this case, the defendant had been
        previously convicted of four offenses within ten years as defined by
        RCW 46.61.5055(14)(a) and this evidence has been admitted only
        to establish element (3) of the offense of felony driving under the
        influence as charged in Count II.
               The jury is not to speculate as to the nature of the prior
        convictions.
               You may not consider this evidence for any other purpose.
               You must not consider this evidence for the purpose of
        judging whether the defendant was operating a motor vehicle while
        under the influence of, or affected by, an intoxicating liquor in this
        incident.
               Any discussion ofthe evidence during your deliberations
        must be consistent with this limitation.

Jury Instruction 5.

        Mortenson was convicted by the jury offelony DUI and attempting to elude
a pursuing police vehicle. The trial court sentenced Mortenson to 29 months on
the charge of attempting to elude and 60 months on the charge of felony DUI, to
run concurrently, plus 12 months of community custody.

        Mortenson appeals.



         Mortenson contends that the trial court erred by denying his request for a

 new venire. This is so, he asserts, because he was prejudiced by the court's
No. 68812-0-1/8



action in inadvertently connecting—by statutory reference—his stipulation to prior

convictions and the DUI charge in this case. We agree.

       A trial court's denial of a request for a new venire is akin to a denial of a

motion for a mistrial.6 State v. Young, 129 Wn. App. 468, 472-73, 119 P.3d 870

(2005). This court reviews the denial of a motion for a mistrial for an abuse of

discretion. Young. 129 Wn. App. at 473. "A trial court's denial of a motion for

mistrial 'will be overturned only when there is a substantial likelihood the

prejudice affected the jury's verdict.'" Young, 129 Wn. App. at 472-73 (internal

quotation marks omitted) (quoting State v. Greiff. 141 Wn.2d 910, 921, 10 P.3d

390 (2000)).

                                                  A


       Our decision today is guided by our opinion in Young. In that case, Young

stipulated prior to trial that he had previously been convicted of a "serious
offense," which was an element of unlawful possession of a firearm. Young, 129

Wn. App. at 474. During voir dire, however, the judge told the jury that Young

had previously been convicted "'of a serious offense ... to wit: Second Degree
Assault.'" Young. 129 Wn. App. at 471 (alteration in original). After the jury was

excused, Young requested a mistrial, which the trial court denied. Young. 129

Wn. App. at 471. We overturned Young's conviction, holding that the motion for

a mistrial should have been granted. Young. 129 Wn. App. at 479.

        In assessing whether the trial court's improper comment affected the jury's

        6Unlike the stage in the proceeding when a motion for a mistrial is typically made,
however, jeopardy had not yet attached when Mortenson requested a new venire. Thus, the trial
court had broad discretion to fashion a remedy.

                                               -8-
No. 68812-0-1/9



verdict, we analyzed the following three factors: "(1) the seriousness of the

irregularity; (2) whether it involved cumulative evidence; and (3) whether the trial

court properly instructed the jury to disregard it." Young. 129 Wn. App. at 473.

       Analyzing the first factor, we stated that "[w]hen the sole purpose of the

evidence is to prove the element of the prior conviction, revealing a defendant's

prior offense is prejudicial in that it raises the risk that the verdict will be

improperly based on considerations of the defendant's propensity to commit the

crime charged." Young. 129 Wn. App. at 475 (citing Old Chief v. United States.

519 U.S. 172, 174, 117 S. Ct. 644, 136 L Ed. 2d 574 (1997); State v. Johnson.

90 Wn. App. 54, 63, 950 P.2d 981 (1998)). Accordingly, we held that the trial

court's revelation of Young's prior assault conviction was "inherently prejudicial"

and constituted a serious irregularity. Young, 129 Wn. App. at 476.

       Here, the trial court told the jury that Mortenson had "at least four prior

offenses as defined under RCW 46.61.5055(14)(a) within 10 years of the arrest

for the current offense." The trial court also told the jury that the present charge

was that Mortenson "drove a vehicle within this State while under the influence or

affected by intoxicating liquor or any drug while under the combined influence of

or affected by intoxicating liquor and any drug, . . . contrary to RCW 46.61.502

and RCW 46.61.5055 and against the peace and dignity of the State of

Washington." The trial court's mention of RCW 46.61.5055 with respect to both

the current offense and the prior offenses informed the jury that Mortenson had

been convicted of DUI on four prior occasions within the last ten years. As in

Young, this revelation was inherently prejudicial. Indeed, given that it involves

                                           -9-
No. 68812-0-1/10



four prior convictions for the identical crime charged herein, the error here is

likely more prejudicial than the error in Young, which involved one prior

conviction for a related offense.

       The State contends that it was unlikely that the jurors recognized the

significance of the statutory citation or concluded therefrom that Mortenson had

four prior DUI convictions. The State's assertion is belied by the fact that juror 31

did make this connection. Juror 31 stated, in front of the entire panel, that she

"just heard prior that the defendant had four prior convictions." Had any other

jurors not initially made the connection between the two references to the same

statute, they certainly did after juror 31 announced it to them. Thus, the trial

court's disclosure that Mortenson had four prior DUI convictions was a serious

irregularity.

       Analyzing the second factor, whether the irregularity presented cumulative

evidence, the Young court held that because "there was nothing else that

disclosed to the jury the nature of the prior offense, either at the time of the trial

irregularity or thereafter[,]" the trial court's revelation did not present cumulative

evidence.7 129 Wn. App. at 476. Here, although Mortenson stipulated to the fact

that he had four prior predicate convictions, he purposely was allowed to not

refer to them as DUI convictions, but, rather, to only refer to them by statutory

reference. This was in an effort to "sanitize" the convictions, a proper ruling

made by Judge Gain and adopted by Judge Smith. See Old Chief, 519 U.S. at

        7Where the irregularity presents cumulative evidence, the necessity of declaring a
mistrial is diminished. State v. Garcia. 177 Wn. App. 769, 781, 313 P.3d 422 (2013), review
denied.       P.3d      (Wash. Mar. 5, 2014).

                                             -10-
No. 68812-0-1/11



186.


       Moreover, the trial court's statement did not constitute the presentation of

cumulative evidence because the trial court's disclosure—although stated to the

jurors—was not evidence. Ordinarily, the jury may not discount statements made

by the trial court. Cf. State v. Gamble. 168Wn.2d 161, 178, 225 P.3d 973 (2010)

(jury presumed to follow court's instructions). While the jury is told to weigh

evidence and discount it if it chooses, the jury is not told to weigh statements

from the judge. Jurors are told to accept instruction from the court "regardless of

what you personally believe the law is or what you personally think it should be."

11 Washington Practice: Washington Pattern Jury Instructions: Criminal

1.02, at 13 (3d ed. 2008). Thus, for both reasons, the irregularity did not present

cumulative evidence of Mortenson's prior convictions. This factor also weighs in

his favor on appeal.

       The third factor considered in Young was whether the trial court properly

instructed the jury to disregard the comment. In Young, the trial court gave no

curative instructions. 129 Wn. App. at 477. Rather, the trial court told the jury

that "'the Information in this case is only an accusation against the defendants

which informs them of the charges. You are not to consider the filing of the

Information or its contents as proof of the crimes charged.'" Young. 129 Wn.

App. at 476-77. We held that this instruction was inadequate to cure the error:

"[A]n instruction that fails to expressly direct the jury to disregard evidence,

particularly where, as here, the instruction does not directly address the specific
evidence at issue, cannot logically be said to remove the prejudicial impression

                                        -11 -
No. 68812-0-1/12



created by revelation of identical other acts." Young. 129 Wn. App. at 477.

       Here, the trial court offered the following instruction at the close of trial:

               Certain evidence has been admitted in this case for only a
       limited purpose. This evidence consists of the stipulation, that at
       the time of the arrest in this case, the defendant had been
       previously convicted of four offenses within ten years as defined by
       RCW 46.61.5055(14)(a) and this evidence has been admitted only
       to establish element (3) of the offense of felony driving under the
       influence as charged in Count II.
              The jury is not to speculate as to the nature of the prior
       convictions.
             You may not consider this evidence for any other purpose.
             You must not consider this evidence for the purpose of
      judging whether the defendant was operating a motor vehicle while
      under the influence of, or affected by, an intoxicating liquor in this
       incident.


Jury Instruction 5. However, the trial court—during voir dire—gave no

contemporaneous instruction to disregard the court's own comment. Thus, "the

jury venire was left with the knowledge that" Mortenson had been previously

convicted of DUI on four previous occasions, "before it even heard the State's

case." Young. 129 Wn. App. at 477. Moreover, the instruction given was aimed

at the stipulation itself—not at the trial court's comment during voir dire. This is

so because the instruction given referred to "evidence" and specifically

referenced the stipulation. The court's statement during voir dire was not

"evidence," but the stipulation was. Thus, a careful juror would not understand

the instruction to apply to the court's statement during voir dire. The trial court

did not effectively instruct the jury to disregard the disclosure it made during voir

dire. The prejudice to Mortenson was never cured.

       As in Young, all three factors weigh in Mortenson's favor. This case is not


                                           12-
No. 68812-0-1/13



distinguishable from Young such that a different result is compelled. The trial

court erred by not granting Mortenson's request for relief.

                                            B


       When a trial court makes an improper comment during venire, that

irregularity is subject to harmless error analysis. Young. 129 Wn. App. at 478.

"'A harmless error is an error which is trivial, or formal, or merely academic, and

was not prejudicial to the substantial rights of the party assigning it, and in no

way affected the final outcome of the case.'" State v. Wanrow. 88 Wn.2d 221,

237, 559 P.2d 548 (1977) (guoting State v. Golladav, 78 Wn.2d 121, 139, 470

P.2d 191 (1970)). The error here was not harmless with respect to the felony

DUI conviction.

       With regard to the felony DUI charge, the prejudicial effect of the trial

court's comment was that the jury might infer that because Mortenson had been

convicted of four prior DUIs, he had a propensity for driving while intoxicated and

acted in a manner consistent with that propensity on the date charged.

             When the sole purpose of the evidence is to prove the
       element of the prior conviction, revealing a defendant's prior
       offense is prejudicial in that it raises the risk that the verdict will be
       improperly based on considerations of the defendant's propensity
       to commit the crime charged. This risk is especially great when the
       prior offense is similar to the current charged offense.

Young. 129 Wn. App. at 475 (footnote omitted).

       Here, the prior offenses were not just similar to the current charged

offense—they were identical to the current offense. This is exactly the type of




                                           13
No. 68812-0-1/14



evidence that Evidence Rule 4048 normally seeks to exclude. Moreover, there

was not just one prior offense introduced by the court, as in Young; rather, there

were four. In light of these factors, there is a substantial likelihood that the

comment affected the outcome at trial. The error committed by the trial court

was not harmless with respect to the felony DUI charge. Accordingly, we reverse

Mortenson's conviction for felony DUI.9

                                                Ill


                                                A


        Mortenson next contends that his conviction for attempting to elude should

be overturned because it was not supported by sufficient evidence. This is so,

he asserts, because the State failed to prove that he drove in a reckless manner.

We disagree.

       When reviewing a sufficiency of the evidence challenge, "'the relevant

question is whether, after viewing the evidence in the light most favorable to the

prosecution, any rational trier of fact could have found the essential elements of

the crime beyond a reasonable doubt.'" State v. Green. 94 Wn.2d 216, 221, 616

P.2d 628 (1980) (quoting Jackson v. Virginia. 443 U.S. 307, 319, 99 S. Ct. 2781,

61 L. Ed. 2d 560 (1979)). When the sufficiency of the evidence is challenged in a

criminal case, all reasonable inferences from the evidence must be drawn in



        8"Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a
person in order to show action in conformity therewith." ER 404(b).
        9While this appeal was pending, the parties filed a joint motion to strike the term of
community custody from Mortenson's felony DUI sentence. Because we reverse Mortenson's
felony DUI conviction, the parties' motion is mootand we decline to address it. We also choose
not to address Mortenson's other assignments of error arising out of his DUI conviction.

                                              -14-
No. 68812-0-1/15



favor of the State. State v. Salinas. 119Wn.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.

"Deference must be given to the trier of fact who resolves conflicting testimony

and evaluates the credibility of witnesses and persuasiveness of material

evidence." State v. Carver. 113 Wn.2d 591, 604, 781 P.2d 1308, 789 P.2d 306

(1989).

       In order for an individual to be found guilty of attempting to elude a

pursuing police vehicle, the State must prove that he or she "willfully fail[ed] or

refuse[d] to immediately bring his or her vehicle to a stop and [drove] 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." RCW

46.61.024. "'[I]n a reckless manner'" is defined as "'in a rash or heedless

manner, indifferent to the consequences.'" State v. Roggenkamp. 153Wn.2d

614, 622, 106 P.3d 196 (2005) (defining "reckless manner" as used in RCW

46.61.520 and 46.61.522) (quoting State v. Bowman. 57 Wn.2d 266, 270-71, 356

P.2d 999 (1960)); State v. Ridglev. 141 Wn. App. 771, 781, 174 P.3d 105 (2007)

("[T]he 'reckless manner' standard of RCW 46.61.024 at issue here takes the

same meaning as the 'reckless manner' standard of RCW 46.61.520 (vehicular

homicide) and RCW 46.61.522 (vehicular assault).").

          Here, the evidence sufficiently supports the jury's finding that Mortenson

drove in a reckless manner. When Deputy Petrenchak first saw Mortenson, he

was driving 20 miles per hour over the speed limit. Deputy Petrenchak described

                                          -15-
No. 68812-0-1/16



Mortenson's driving as erratic, and testified that Mortenson crossed both the

center line and the fog line multiple times. Lowrey, who was a passenger in

Mortenson's vehicle at the time of the incident, also described Mortenson's

driving as "erratic." When Mortenson finally stopped the vehicle, he pulled into

the oncoming lane at a 45 degree angle. From these facts, a rational juror could

find that Mortenson drove in a reckless manner. Therefore, the conviction for

attempting to elude a pursuing police vehicle is supported by sufficient evidence.

       Nevertheless, Mortenson contends that he was not driving in a reckless

manner because he did not endanger other drivers or pedestrians. Mortenson's

contention was expressly rejected by this court in State v. Whitcomb, 51 Wn.

App. 322, 753 P.2d 565 (1988). In that case, the trial court held that the State

had presented insufficient evidence that the defendant drove with "wanton or

willful disregard," because "no pedestrians or other vehicles were present."

Whitcomb. 51 Wn. App. at 327. This court overturned the trial court's ruling

because the trial court had misinterpreted the attempting to elude a pursuing

police vehicle statute. Whitcomb. 51 Wn. App. at 327. We held that in order to

prove that an individual attempted to elude a pursuing police vehicle, "[t]he State

need not prove that anyone else was endangered by the defendant's conduct, or

that a high probability of harm actually existed. Rather, the State need only show

that the defendant engaged in certain conduct, from which a particular disposition

or mental state . . . may be inferred."10 Whitcomb. 51 Wn. App. at 327. Because


        10 Whitcomb was construing a prior version of the attempting to elude statute, which
incorporated a "willful or wanton disregard" mens rea requirement. Nonetheless, Whitcomb's

                                             -16-
No. 68812-0-1/17



actual endangerment of others is not an element of attempting to elude a

pursuing police vehicle, Mortenson's contention lacks merit.

                                                B


       The final question presented is whether the trial court's error in revealing

that Mortenson had four prior DUI convictions was harmless with respect to the

attempting to elude charge. As previously stated, "'A harmless error is an error

which is trivial, or formal, or merely academic, and was not prejudicial to the

substantial rights of the party assigning it, and in no way affected the final

outcome of the case.'" Wanrow, 88 Wn.2d at 237 (quoting Golladav, 78 Wn.2d

at 139). Here, the error committed by the trial court did not affect the outcome of

the attempting to elude charge. The trial court informed the potential jurors only

about Mortenson's DUI convictions; it did not inform them about any prior

convictions for attempting to elude or reckless driving. In other words, the trial

court's error revealed prior convictions for an unrelated crime, which did not

speak to any of the elements of the attempting to elude charge. Thus,

Mortenson's four DUI convictions did not demonstrate a propensity to elude

police vehicles.

       Additionally, with respect to the attempting to elude charge, the trial court's

revelation of Mortenson's four prior DUI convictions was no more prejudicial than

the stipulation itself. The stipulation informed the jurythat Mortenson "had been

previously convicted of four or more prior offenses," without revealing what those


holding still applies because "in a reckless manner" is a lessermens rea requirement than "willful
or wanton disregard." Ridglev, 141 Wn. App. at 781.

                                              -17-
No. 68812-0-1/18



offenses were. Had the trial court not read the information to the jury, it would

still have learned that Mortenson had four prior criminal convictions. The specific

nature of the convictions created no additional inferences relevant to the

attempting to elude charge. Thus, the trial court's error in disclosing the prior

DUI convictions to the potential jurors was harmless with respect to this charge.

Accordingly, we affirm Mortenson's conviction for attempting to elude a pursuing

police vehicle.

                                               C


        Mortenson's felony DUI conviction was counted in his offender score for

sentencing on the conviction for attempting to elude a pursuing police vehicle.

Thus, Mortenson must be resentenced on the attempting to elude conviction

following the disposition of the felony DUI charge on remand.11 Accordingly, we

remand the count of attempting to elude a pursuing police vehicle for

resentencing and the count of felony DUI for further proceedings consistent with

this opinion.

       Affirmed in part, reversed in part.




We concur:


 &~4,e-/.
        11 We do not address Mortenson's assignments of error to his offender score calculation.
The trial court will need to calculate the score on remand based on evidence presented at that
hearing. RCW 9.94A.525(1); State v. Collicott. 118 Wn.2d 649, 665, 827 P.2d 263 (1992).

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