                                                                           FILED
                                                                         JUNE 4, 2019
                                                                In the Office of the Clerk of Court
                                                               WA State Court of Appeals, Division III




            IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                               DIVISION THREE

STATE OF WASHINGTON,                          )
                                              )         No. 35719-8-III
                     Respondent,              )
                                              )
       v.                                     )
                                              )
DEREK W. SCHILLING,                           )         OPINION PUBLISHED IN PART
                                              )
                     Appellant.               )

       KORSMO, J. — Derek Schilling appeals from a conviction for attempting to elude a

police vehicle, primarily arguing that the statute is unconstitutionally vague under recent

United States Supreme Court precedent. We affirm the conviction, but remand to strike

two financial obligations.

                                          FACTS

       This case has its genesis in a vehicle chase that began after Deputy Sheriff Spencer

Rassier observed a speeding Mercury Cougar on Farr Road in Spokane Valley. He

attempted to stop the vehicle, but the driver of the Cougar refused to stop and sped away.

During a U-turn, Rassier was able to see and identify the driver as Mr. Schilling. The

fleeing vehicle ultimately reached speeds of 80 to 100 m.p.h. in a 35 m.p.h. zone. Officer
No. 35719-8-III
State v. Schilling


Rassier eventually called off the pursuit when it neared a hospital because Schilling was

driving “recklessly.”

       Shortly thereafter, a deputy sheriff, Randy Watts, observed the vehicle crash while

crossing train tracks. The vehicle suffered significant front end damage. The driver was

not in sight, so Watts waited for Deputy Tyler Kullman and his dog, Kahn, to arrive.

Kahn tracked from the open driver’s door and soon located Mr. Schilling on a ridgeline

of a nearby hill.

       Deputy Kullman, when asked at trial, explained how the dogs track humans:

       Our dogs are trained to find human odor, especially when someone is
       running from us or trying to hide, they produce what we call a fear scent.
       They can’t not produce it. Your armpits start sweating, all this stuff starts
       happening, your adrenaline’s going, and a seasoned dog like Kahn, they
       pick up on that fear scent really quickly along with just the human scent
       they’re trained from day one to track.

Report of Proceedings (RP) at 61. His testimony also explained how a person’s scent,

made up of the skin cells humans constantly shed, mixes with that of the newly disturbed

ground to produce a unique, fresh scent for the dog. RP at 57-59.

       Mr. Schilling testified that he was a passenger in the car who urged the driver, an

unnamed friend, to stop driving dangerously while fleeing the police. He had to exit out

the driver’s door because the passenger door was damaged. He fled because he knew

there was a warrant for his arrest.




                                              2
No. 35719-8-III
State v. Schilling


         The jury found Mr. Schilling guilty. After the trial court imposed a standard range

sentence, he timely appealed to this court. A panel heard oral argument of the case.

                                          ANALYSIS

         This appeal presents a vagueness challenge to the eluding statute, alleges that two

of the deputies provided improper opinion testimony, and contests two of the financial

assessments of the judgment and sentence. We address the three claims in the stated

order.

         Eluding Statute

         Mr. Schilling initially argues that the “driving in a reckless manner” element of the

eluding statute is unconstitutionally vague in light of Johnson v. United States, 576 U.S.

___, 135 S. Ct. 2551, 192 L. Ed. 2d 569 (2015). We conclude that Johnson did not

change existing law for assessing vagueness claims.

         The attempting to elude statute is found at RCW 46.61.024(1), which provides:

         Any 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 of a class C felony. The signal given by the police officer may be by
         hand, voice, emergency light, or siren. The officer giving such a signal
         shall be in uniform and the vehicle shall be equipped with lights and sirens.

(Emphasis added.)

         The “reckless manner” element was enacted in 2003; it replaced a previous

prohibition on driving that demonstrated “a wanton or willful disregard for the lives or

                                                3
No. 35719-8-III
State v. Schilling


property of others” while attempting to elude.1 See LAWS OF 2003, ch. 101, § 1 (amending

LAWS OF 1983, ch. 80, § 1). The reckless manner element was borrowed from the

vehicular homicide and vehicular assault statutes. See RCW 46.61.520(1)(b); RCW

46.61.522(1)(a).

       A statute is unconstitutionally vague if (1) it does not define the offense with

sufficient definiteness so that ordinary people can understand what conduct is prohibited,

or (2) it does not provide ascertainable standards of guilt to protect against arbitrary

enforcement. State v. Williams, 144 Wn.2d 197, 203, 26 P.3d 890 (2001); City of

Spokane v. Douglass, 115 Wn.2d 171, 178, 795 P.2d 693 (1990). The reviewing court

presumes that a statute is constitutional, and the party challenging the statute’s

constitutionality bears the burden of proving the statute’s invalidity beyond a reasonable

doubt. City of Seattle v. Eze, 111 Wn.2d 22, 26, 759 P.2d 366 (1988). The burden is a

heavy one. Douglass, 115 Wn.2d at 178.

       Traditionally, a defendant may only bring a vagueness challenge to the statute as it

was applied to his particular conduct. Id. at 182. This is one of two approaches to a

vagueness challenge:

       The rule regarding vagueness challenges is now well settled. Vagueness
       challenges to enactments which do not involve First Amendment rights are
       to be evaluated in light of the particular facts of each case. Maynard v.


       1
        The “wanton and willful” standard continues to define the crime of reckless
driving. RCW 46.61.500.

                                              4
No. 35719-8-III
State v. Schilling


       Cartwright, 486 U.S. 356, 361, 108 S. Ct. 1853, 1857, 100 L. Ed. 2d 372
       (1988); Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489,
       495 n. 7, 102 S. Ct. 1186, 1191 n. 7, 71 L. Ed. 2d 362, reh’g denied, 456
       U.S. 950, 102 S. Ct. 2023, 72 L. Ed. 2d 476 (1982); United States v.
       Powell, 423 U.S. 87, 92-93, 96 S. Ct. 316, 46 L. Ed. 2d 228 (1975); United
       States v. Mazurie, 419 U.S. 544, 550, 95 S. Ct. 710, 42 L. Ed. 2d 706
       (1975); United States v. National Dairy Prods. Corp., 372 U.S. 29, 32-33,
       36, 83 S. Ct. 594, 597-598, 9 L. Ed. 2d 561 (1963). See also State v.
       Carver, 113 Wn.2d 591, 599, 781 P.2d 1308, 789 P.2d 306 (1989); [State v.
       Worrell, 111 Wn.2d 537, 541, 761 P.2d 56 (1988)]. Consequently, when a
       challenged ordinance does not involve First Amendment interests, the
       ordinance is not properly evaluated for facial vagueness. Rather, the
       ordinance must be judged as applied. Maynard, 486 U.S. at 361.
       Accordingly, the ordinance is tested for unconstitutional vagueness by
       inspecting the actual conduct of the party who challenges the ordinance and
       not by examining hypothetical situations at the periphery of the ordinance’s
       scope.

Id. at 182-83.

       Using the “as applied” standard, our courts long have upheld the driving in a

“reckless manner” language against vagueness challenges. E.g., State v. Jacobsen, 78

Wn.2d 491, 498, 477 P.2d 1 (1970) (negligent homicide); State v. Hill, 48 Wn. App. 344,

348, 739 P.2d 707 (1987) (vehicular assault). Schilling acknowledges this authority, but

suggests that it has been superseded by Johnson.

       In Johnson, the United States Supreme Court faced yet another challenge to the

“residual clause” of the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e)(2)(b).

The statute penalized certain offenders who had three or more prior “violent felony”

offenses, and, in part, defined “violent felony” as a “burglary, arson, or . . . conduct that

presents a serious potential risk of physical injury to another.” Id. (emphasis added). In

                                              5
No. 35719-8-III
State v. Schilling


prior cases construing the ACCA, the Court had concluded that Congress intended it

apply a “categorical” approach to assessing whether conduct fit the residual clause:

       In Taylor v. United States, 495 U.S. 575, 600, 110 S. Ct. 2143, 109 L. Ed.
       2d 607 (1990), this Court held that the Armed Career Criminal Act requires
       courts to use a framework known as the categorical approach when
       deciding whether an offense “is burglary, arson, or extortion, involves use
       of explosives, or otherwise involves conduct that presents a serious
       potential risk of physical injury to another.” Under the categorical
       approach, a court assesses whether a crime qualifies as a violent felony “in
       terms of how the law defines the offense and not in terms of how an
       individual offender might have committed it on a particular occasion.”
       [Begay v. United States, 553 U.S. 137, 141, 128 S. Ct. 1581, 170 L. Ed. 2d
       490 (2008), abrogated by Johnson v. United States, 135 S. Ct. 2551, 192 L.
       Ed. 2d 569 (2015)].

192 L. Ed. 2d at 578.

       Johnson noted that its prior case law showed great difficulty in applying the

categorical approach to residual clause cases. Id. at 578-81. In other words, the statutory

construction tool mandated by the statute was ineffectual. The Court then subjected the

categorical approach to the first of the traditional prongs of vagueness analysis—the

ability to understand what type of conduct fits within the statute. Id. at 578-79. Noting

that prior cases had difficulty in finding a methodology for applying the categorical

approach, let alone reaching consensus as to the meaning in any particular case, the court

concluded that the residual clause was vague since the necessary construction tool did not

work. Id. at 581-83.




                                             6
No. 35719-8-III
State v. Schilling


        Nothing in Johnson suggests that the “as applied” standard has been supplanted as

the method for assessing vagueness challenges when First Amendment concerns are

absent. The “as applied” standard was not discussed, let alone overruled or relegated to

some constitutional backwater. It simply was not a relevant concern since the statute, as

construed by the Supreme Court, precluded consideration of the facts of an individual

case.

        Mr. Schilling reads too much into the Johnson opinion.2 It does not change

vagueness analysis except to perhaps add an additional approach when legislation

dictates that a statute be construed in a manner that precludes “as applied” consideration.

It does no more than that.

        In light of Jacobsen and Hill, Mr. Schilling’s vagueness argument is without

merit. The “reckless manner” language does not render the eluding statute vague.

        A majority of the panel having determined that only the foregoing portion of this

opinion will be printed in the Washington Appellate Reports and that the remainder,

having no precedential value, shall be filed for public record pursuant to RCW 2.06.040,

it is so ordered.



        We note that the Washington Supreme Court has continued to use the “as
        2

applied” test since the Johnson opinion was issued without any apparent concern that the
standard has changed. E.g., State v. Evergreen Freedom Found., 192 Wn.2d 782, 432
P.3d 805 (2019); State v. Murray, 190 Wn.2d 727, 416 P.3d 1225 (2018).


                                             7
No. 35719-8-III
State v. Schilling


       Comments on Guilt

       Mr. Schilling next argues that two of the deputies wrongly expressed comments on

his guilt by describing his driving as “reckless” and testifying that the dog was tracking a

“fear scent.” We need not determine whether these unchallenged statements constituted

error since any error is not manifest.

       Well settled law governs these contentions. A proper objection must be made at

trial to perceived errors in admitting or excluding evidence; the failure to do so precludes

raising the issue on appeal. State v. Guloy, 104 Wn.2d 412, 421, 705 P.2d 1182 (1985),

cert. denied, 475 U.S. 1020 (1986). “‘[A] litigant cannot remain silent as to claimed

error during trial and later, for the first time, urge objections thereto on appeal.’” Id.

(quoting Bellevue Sch. Dist. 405 v. Lee, 70 Wn.2d 947, 950, 425 P.2d 902 (1967)).

       An exception to this general rule exists if the issue involves a manifest error

affecting a constitutional right. RAP 2.5(a). A party is first required to establish the

existence of error that is constitutional in nature. If such an error is demonstrated, the

party must then show that the error was not harmless and actually had an identifiable and

practical impact on the case. State v. Kirkman, 159 Wn.2d 918, 934-35, 155 P.3d 125




                                               8
No. 35719-8-III
State v. Schilling


(2007); State v. Scott, 110 Wn.2d 682, 687-88, 757 P.2d 492 (1988). A witness cannot

express the opinion that the defendant is guilty. State v. Montgomery, 163 Wn.2d 577,

591, 594, 183 P.3d 267 (2008). Opinion testimony indirectly related to an ultimate fact is

not a “manifest” constitutional error that may be raised for the first time on appeal.

Kirkman, 159 Wn.2d at 936. Instead, in order to constitute manifest error, the testimony

must be a “nearly explicit” comment on credibility. Id.

       Both of the comments Mr. Schilling now challenges were consistent with his own

testimony. He testified that he urged his buddy to stop because the driving scared him.

He admitted that he was in the car and fled from the police because of his arrest warrant;

he was the one the dog tracked. Neither of the now-challenged comments addressed

issues of import at the trial. The contested issue in this case was the identity of the driver,

not the manner of his driving, nor the fact that Mr. Schilling fled the car after the crash.

       The alleged errors are not manifest.

       Financial Assessments

       Mr. Schilling also argues that the trial court cannot impose the filing fee and DNA

collection fee in light of legislation passed subsequent to his sentencing. Those statutory

changes do apply retroactively to cases on appeal. State v. Ramirez, 191 Wn.2d 732, 735,

426 P.3d 714 (2018). Accordingly, we direct that the two fees be struck.




                                              9
No. 35719-8-III
State v. Schilling


       The conviction is affirmed. Remanded to strike the noted financial assessments.




WE CONCUR:




      ahw.
  ;izSiddoway, J. �
                   / ff-.




                                           10
