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                                                                                                  OURT OF A-PPEA S
                                                                                                      DIVIS10" 4 11

                                                                                                20141 MAR - 14 AM 9: 21

                                                                                                STATE OF YVA MI-PllIGTON

    IN THE COURT OF APPEALS OF THE STATE OF WA
                                                                                                           1
                                                                                                                 1N TON

                                                    DIVISION II

STATE OF WASHINGTON,                                                                     No. 44116 -1 - II


                                       Respondent,


        W14



ASLAN M. JEFFERY,                                                               UNPUBLISHEDOPINION




        LEE, J. —        A jury found Aslan M. Jeffery guilty of attempting to elude a police vehicle.

The jury also found, by special verdict, that Jeffery endangered someone other than himself or a

pursuing      officer.    Jeffery   appeals,   arguing ( 1)       there was insufficient evidence to support the


jury' s verdict, and ( 2) the special verdict form relieved the State of its burden to prove an

essential element of the aggravating factor because it did not contain the specific term

 endangered."'       There    was sufficient evidence         to   support      the   jury' s   verdict.
                                                                                                               Jeffery invited the




  Jeffery also challenges the sufficiency of the information based on the failure to include the
word " endangered."    However, Jeffery cites to the amended information. The third amended
information, on which Jeffery went to trial read: "[ A]t the time of the commission of the crime
the Defendant endangered (i.e. threatened by physical injury or harm by the Defendant' s actions)
one or more persons other than the defendant or the pursuing law enforcement officers, contrary
to RCW 9. 94A. 834          and     9. 94A.533."     Clerk'   s   Papers   at    40 -41.        Because the third amended
information contains the exact wording Jeffery alleges was improperly omitted, and Jeffery
never challenged the third amended information, his challenge to the sufficiency of the

information lacks        merit and will not    be   addressed      further.
No. 44116 -1 - II



error    in the   special verdict    form, therefore, this   court    is precluded from reviewing it. We affirm


Jeffery' s conviction.

                                                        FACTS


           On December 14, 2011, Shelton Police Officer Robert Andrew Auderer was on patrol.


Auderer was wearing his police uniform and his patrol car was equipped with lights and sirens.

At approximately 12: 51 AM, Auderer observed a dark colored pickup truck spinning its tires and

speeding down the roadway.               Shortly after Auderer began following the truck, he activated the

lights   and sirens on      his   vehicle.   After Auderer activated the lights and sirens on his vehicle, the


truck    continued    to   accelerate   away from him.      While pursuing the vehicle, Auderer observed the

truck driving in a reckless manner, including driving at high rates of speed, failing to stop at stop

signs,    and     crossing into oncoming lanes        of   traffic.   Two additional law enforcement officers


joined in the        pursuit:      Mason County Sheriff' s Deputies Matt Gray and Michael Sargent.

Eventually, the pursuit ended when the truck reached the end of a dead end road.

           When the truck came to a stop, Deputy Sargent observed the three occupants exit the cab

of   the truck. One person in a black jacket exited the driver' s side door, a person exited from the


passenger side door, and a third person wearing a brown jacket exited the driver' s side door after

the person in the black jacket. Deputy Sargent and Officer Auderer pursued the person who ran

from the passenger side of the truck and apprehended him. Deputy Gray, a K - officer, observed
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the person in the black jacket who exited from the driver' s side of the truck run into a wooded

area. He was also able to maintain a line of sight on the second person who exited the driver' s


side of the truck and released his dog to apprehend that suspect. Gray' s dog stopped the suspect,

who      was      wearing    a    brown jacket,    approximately       10   feet into the   wooded   area.   Gray



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No. 44116 -1 - II



apprehended        that   suspect,   Joseph Tindall,     and returned   to the   police vehicles.   Gray harnessed

his   dog    and   began    a   track for the third     suspect   wearing the black jacket.    Gray and Auderer

ultimately     apprehended        the third   suspect   in the    wooded area.    The third suspect, wearing the

black jacket, was identified as Jeffery.

            On December 15, 2011, the State charged Jeffery with one count of attempting to elude a

police   vehicle.         RCW 46. 61. 024.      Prior to trial the State filed a third amended information


charging Jeffery with one count of attempting to elude a police vehicle and a sentencing

enhancement for endangering persons other than the defendant and the pursuing officers.

Jeffery' s jury     trial began      on   September 6, 2012.        Officer Auderer, Deputy Gray, and Deputy

Sargent testified to the facts stated above.


            The   jury   returned a verdict of    guilty for attempting to       elude a police vehicle.   The jury

also answered yes to the special verdict form which read:


                    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?

Clerk' s Papers at 17. The trial court sentenced Jeffery to 12 months on the attempting to elude a

police vehicle plus the mandatory consecutive sentencing enhancement of 12 months and one

day. Jeffery appeals.

                                                        ANALYSIS


A. SUFFICIENCY OF THE EVIDENCE


            Jeffery argues that there was insufficient evidence to support the jury' s verdict.

Specifically, Jeffery argues that the State presented insufficient evidence to prove that he was the




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No. 44116 -1 - II



driver   of   the truck.         Jeffery is    incorrect.        Viewed in the light most favorable to the State,


sufficient evidence supports the jury' s guilty verdict.

           The test for determining the sufficiency of the evidence is whether, after viewing the

evidence in the light most favorable to the State, any rational trier of fact could have found guilt

beyond     a reasonable     doubt."        State   v.    Salinas, 119 Wn.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.   All " reasonable inferences from the


evidence must be drawn in favor of the State and interpreted most strongly against the

defendant."       Salinas, 119 Wn.2d                at    201.    Circumstantial evidence and direct evidence are


deemed equally           reliable.        State    v.    Delmarter, 94 Wn.2d 634,                638, 618 P. 2d 99 ( 1980).


 Credibility determinations           are    for the trier       of   fact   and cannot   be   reviewed on appeal."   State v.


Camarillo, 115 Wn.2d 60, 71, 794 P. 2d 850 ( 1990).

          To convict Jeffery of attempting to elude a police vehicle the State is required to prove:

 1)   Jeffery   was   the driver     of   the truck, ( 2)     he willfully failed or refused to immediately bring the

truck to    a   stop, ( 3) he operated the truck in                   a reckless manner, (      4) he was given a visual or


audible signal      to   bring   the truck to      a     stop, ( 5) the officer was in a uniform, and ( 6) the officer' s


vehicle was equipped with lights and sirens. RCW 46. 61. 024. At trial, Jeffery conceded that the

crime of attempting to elude had been committed; however, he disputed whether he was the

driver of the vehicle. He renews his claim on appeal.


          Here, Deputy Sargent testified that the first person who exited the driver' s side of the

truck was wearing a black jacket. Deputy Gray testified that the second suspect he apprehended

was the first person who jumped from the driver' s side of the vehicle, and, the suspect was




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    No. 44116 -1 - II




    wearing     a    black jacket.           Deputy Auderer testified that the suspect he helped Deputy Gray

    apprehend in the woods was wearing a black jacket. Both Gray and Auderer identified Jeffery as

    the second suspect they apprehended and as the suspect who was wearing a black jacket. Based

    on the officers' testimony it is reasonable to infer that the first person to exit the driver' s side of

    the truck   was     the       driver.     The person that could reasonably be inferred to be the driver was

    wearing a black jacket, and Jeffery was wearing a black jacket when he was apprehended.

    Therefore,       any rational trier of fact could find that Jeffery was the driver of the vehicle.

    Sufficient evidence supports the jury' s guilty verdict.

    SPECIAL VERDICT FORM


              Jeffery argues that the special verdict form omitted an essential element of the sentencing

    enhancement, and as a result relieved the State of its burden to prove all essential elements of the


    sentencing enhancement beyond                    a reasonable       doubt.       The State argues that Jeffery waived his

    challenge       by failing      to   object   to the   jury   instruction   at   the trial   court.    Jeffery argues that failing

    to include an essential element of a sentencing enhancement is a manifest error affecting a

    constitutional right which               may be ,raised for the first time          on appeal.        RAP 2. 5( a)( 3).   Generally,
r




    Jeffery   would      be       correct.     See State v. Gordon, 172 Wn.2d 671,                        677, 260 P. 3d 884 ( 2011)


     failure to instruct the jury on every element of an offense is an error of constitutional magnitude _

    under   RAP 2. 5(       a)(   3)).   However, because Jeffery invited the error, this court is precluded from

    reviewing it on appeal.

              The invited error doctrine prohibits a party from setting up an error at trial and then

    complaining        of   the      error   on appeal.      State v. Wakefield, 130 Wn.2d 464, 475, 925 P. 2d 183


     1996). "       Under the doctrine of invited error, even where constitutional rights are involved, we




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No. 44116 -1 - II




are precluded from reviewing jury instructions when the defendant has proposed an instruction

or agreed   to its wording."         State   v.   Winings, 126 Wn.   App.   75, 89, 107 P. 3d 141 ( 2005).   When


reviewing the jury instructions the following exchange took place:

         COURT]:          Looking at the special verdict form, any concerns about the way the
        special verdict form is set out?
         DEFENSE COUNSEL] : No, your Honor.


2 Report    of   Proceedings    at   266.    Here, Jeffery did not simply fail to object to the special verdict

form, he stated on the record that he did not have any concerns about the special verdict form.

Therefore, any error in the special verdict form was invited and this court is precluded from

reviewing it.

        We affirm.


        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.




                                                                                      Lee, J.
We




                    Worswick, C




                      J




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