                                                                                           FII. EO
                                                                                   COURT OF AP 'GALS
                                                                                        DI ISIoN II
                                                                                  7013 AUG 20
                                                                                              Pal E2=45
                                                                                  ST

                                                                                  U 1




    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                           DIVISION II

STATE OF    WASHINGTON,                                             No. 42944 6 II
                                                                              - -


                                  Respondent,

       V.



SHILA JEAN WYATT,                                             UNPUBLISHED,OPINION

                                  Appellant.

            BRINTNALL, J.
       QUINN-                     —    Shila J. Wyatt appeals her jury trial conviction for vehicular

assault. She argues that ( ) trial court erred in refusing to redact a witness statement on a 911
                         1 the

tape that referred to her as a " runk driver"arguing that this evidence was irrelevant and highly - -
                               d                                                       -

prejudicial, ( )the trial court erroneously excluded evidence that the state patrol officer who
             2

initially investigated the accident scene had concluded that she had driven negligently and had

cited her for only second degree negligent driving, and (3)the State presented insufficient

evidence that she committed vehicular assault. In her statement of additional grounds (SAG),'

Wyatt asserts that the State violated her right to be free from double jeopardy by charging her

twice for the   same   offense.   Because the trial court's evidentiary rulings were not erroneous,




1M
5171    1   1
No.42944 6 II
         - -



sufficient evidence supports the jury's verdict, and Wyatt's right to be free from double jeopardy

was not violated, we affirm.

                                                    FACTS


       On November 10, 2009, Kaylee Kinney was driving westbound on Old Highway 99 from

Tenino to Grand Mound. Kinney noticed the car in front of her, a white sedan with the license

plate 454WZR, was driving erratically. The white sedan drove at fluctuating speeds, repeatedly

hit " leeper bumps," crossed the center line at least five times. Kinney followed the white
    s              and

sedan for approximately five and a half miles. While following the vehicle, Kinney called 911 to

report the erratic driving. The 911 operator asked Kinney what she was reporting and Kinney

responded that she     was   reporting "[ ]drunk
                                        a              driver." Report    of Proceedings (RP) Nov. 15,
                                                                                              (

2011) at 35. Kinney also described the white sedan's erratic driving to the 911 operator. During

the 911 call, Kinney reported that the white sedan pulled over near Gibson Street to let her pass.

       The same night, Kris Ziesemer was riding his motorcycle eastbound on Old Highway 99.

As Ziesemer approached Gibson Street he saw a car's headlights cross the center line into his
lane. Ziesemer moved his           motorcycle all    the way to the    fog line   on   the   right.   But the car


traveled all the way across the eastbound lane and hit Ziesemer. Ziesemer's leg was broken.

       The car that hit Ziesemer pulled to the shoulder of the westbound lane. Deputy Ryan
                                                                         to the    accident               Hoover
Hoover of the Thurston        County Sheriff's Office responded                                 scene.




contacted the driver of the car that hit Ziesemer and identified her as Wyatt. The car matched

Kinney's   earlier   description   of   a   white sedan with license   plate   454WZR.        Washington State

Trooper Troy Orf also responded to the scene. Orf filled out a police traffic collision report.

        Trooper Orf issued Wyatt a traffic infraction citation for second degree negligent driving.

Wyatt contested the traffic infraction, and the Thurston County District Court dismissed the
                                                        V
No. 42944 6 II
          - -



second degree negligent driving infraction. On November 16, 2010, Detective Juli Gunderman

of the Washington State Patrol reopened the investigation into the Ziesemer Wyatt collision. As
                                                                            /

a result of Gunderman's investigation, the State charged Wyatt with vehicular assault.

          Before trial; Wyatt filed a motion to dismiss the vehicular assault charge on double

jeopardy grounds. Wyatt argued that because the original second degree negligent driving

citation had been dismissed, the vehicular assault charges violated double jeopardy. The State

responded that second degree negligent driving is a civil offense and that jeopardy does not

attach to civil infractions. The trial court agreed that jeopardy did not attach to Wyatt's civil

traffic infraction for second degree negligent driving and denied Wyatt's motion to dismiss. The

matter proceeded to a jury trial.

          At trial, Wyatt moved to redact Kinney's statement on the 911 recording that she was

reporting "a drunk driver"as irrelevant and overly prejudicial. RP (Nov. 15, 2011) at 10. The

State acknowledged that it was not charging Wyatt under the intoxication prong of the vehicular

assault statute, but argued that the statement was Kinney's simultaneous characterization of the

driving she      was   observing   at the time and did not    require   exclusion. The trial court denied


Wyatt's motion, stating that "the reference to a drunk driver when reporting erratic driving

behavior is a lay way of saying this is what it appears to me." (Nov. 15,2011)at 11.
                                                              RP

          Wyatt also attempted to introduce the prior traffic infraction for second degree negligent

driving    and   Trooper   Orf s   opinion   that   Wyatt's driving   was (   merely) negligent.   The State


argued that it was inappropriate for Orf to offer a legal opinion and that the prior infraction

should be similarly excluded because it was evidence of the same improper legal opinion. The

trial court ruled that Orf was not permitted to testify about what traffic infraction citation he

issued or his legal opinion of the nature of Wyatt's driving.

                                                         3
No. 42944 6 II
          - -



       The jury found Wyatt guilty of vehicular assault. The trial court sentenced Wyatt to a

standard range sentence of 61. months. Wyatt appeals.
                             5

                                             ANALYSIS


911 TAPE


       Wyatt argues that the trial court erred by declining to redact Kinney's statement on the

911 recording that she was reporting a drunk driver because the statement was irrelevant and

prejudicial. Although reasonable minds may differ on the relevance of Kinney's recorded

characterization of the erratic driving that she was reporting to 911, the trial court did not abuse

its discretion   by declining   to   redact the recorded statement.   Furthermore, based on the

arguments and evidence presented in this case, Kinney's recorded statement was not unduly

prejudicial.

       We review a trial court's evidentiary rulings for an abuse of discretion. State v. Brown,

132 Wn. d 529, 571 72,940 P. d 546 (1997),
      2            -       2             cent. denied, 523 U. . 1007 (1998).A trial court
                                                            S

abuses its discretion when its decision is manifestly unreasonable or exercised on untenable

grounds. State v. Lamb, 163 Wn. App. 614; 631, P. d 89 (2011), d in part, rev'd in part,
                                             262 3           aff'

175 Wn. d 121, 285 P. d 27 (2012). Where reasonable minds could take differing views, the
      2             3

trial court has not abused its discretion. State v. Demery, 144 Wn. d 753, 758, 30 P. d 1278
                                                                  2                 3

2001).

       Under ER 401, evidence is relevant if it makes "the existence of any fact that is of

consequence to the determination of the action more probable or less probable than it would be

without the evidence." But under ER 403, relevant evidence "may be excluded if its probative

value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or

misleading the jury."

                                                  11
No. 42944 6 II
          - -



         Wyatt argues that Kinney's statement is not relevant because Wyatt was charged with

vehicular assault      by driving   in   a   reckless manner, not   driving   while intoxicated.   RCW


a), the trial .
522(
46. 1.
   1)( )(
   6  b). court refused to redact Kinney's statement because it
      522(
         1 But

determined that in context, Kinney's statement was a lay description of the type of driving she

was observing and reporting. The statement made it more probable that the driver of the white

sedan —whomever          that may have been was driving in a reckless manner, therefore, the
                                            —

statement was relevant. Although following the collision it was determined that Wyatt was the

driver of the white sedan and was not intoxicated and Wyatt was not charged with vehicular

assault by driving while intoxicated, the trial court's decision to not redact Kinney's recorded
911 account of her observations was not unreasonable. Accordingly, we hold that the trial court

did not abuse its discretion by declining to redact Kinney's recorded statement.

          Wyatt also argues that Kinney's statement should have been excluded because it was

highly prejudicial. Wyatt asserts that "[
                                       h] the statement is characterized, it enabled the
                                          owever

jury   to hear ...   the indisputably incorrect opinion that Ms. Wyatt was driving while drunk."Br.

of Appellant at 23 We disagree.

             Wyatt correctly asserts that there was no evidence that Wyatt was intoxicated at the time
her    car    crossed the road and collided with Ziesemer.          Because there was no evidence of


intoxication, Kinney's recorded statement was merely a summary description of the erratic

driving she was reporting. Furthermore, Kinney's testimony was clear that she never had contact

with Wyatt, and that she        was   describing   the   drivingnot the condition of
                                                                —                      the driver.   It is


undisputed that there was no evidence to support a conclusion that Wyatt was intoxicated.

Wyatt's driving, as specifically described in the rest of Kinney's statement on the 911 tape and

during Kinney's testimony, is the type of driving commonly associated with a drunk driver.
                                                         W1
No. 42944 6 II
          - -



Importantly, there was no other mention of intoxication and the State never argued that Wyatt

was intoxicated. There is no indication that Kinney's recorded statement would be characterized

as anything other than Kinney's preliminary description of the type of driving she observed.

       Furthermore, the jury was instructed on the elements of vehicular assault by driving in a

reckless manner; the jury instructions did not include any reference to the alternative means of

committing vehicular assault by driving while intoxicated. We presume that the jury follows the

court's instructions. State v. Russell, 125 Wn. d 24, 84, 747 P. d 747 (1994),
                                              2                2             cent. denied, 514

U. . 1129 (1995).Therefore, we assume that the jury found the essential elements of vehicular
 S

assault by driving in a reckless manner, rather than vehicular assault by driving while

intoxicated.   Given all the facts present in this case, Kinney's brief statement on the 911

recording was not overly prejudicial, and the trial court did not err by declining to redact it.
OFFICER'S EXPERT OPINION


       Wyatt asserts that the trial court erred by excluding Trooper Orf s opinion that Wyatt's

driving was merely negiligent because it was an expert opinion admissible under ER 702, 703,

and 704. "
         Wyatt argues that Orfs opinion was relevant because "it would have shed light on a

material question of fact: Ms. Wyatt's manner of driving."Br. of Appellant at 28. We disagree.

Orf never observed Wyatt's driving and Orf s conclusion that Wyatt's driving was merely

negligent is an improper legal conclusion, and the trial court did not err by excluding it.

        We review a trial court's decision to admit expert testimony for an abuse of discretion.

State v. Willis, 151 Wn. d 255, 262, 87 P. d 1164 (2004). The trial court abuses its discretion
                       2                 3

when its decision is manifestly unreasonable or based on untenable grounds. State v. Powell,

126 Wn. d 244, 258, 893 P. d 615 (1995).Under ER 702,
      2                  2



                                                  N
No. 42944 6 II
          - -



                  i] scientific, technical, or other specialized knowledge will assist the trier
                   f
       of fact to understand the evidence or to determine a fact in issue, a witness
       qualified as an expert by knowledge, skill, experience, training, or education, may
       testify thereto in the form of an opinion or otherwise.

But an expert may not testify to legal conclusions. State v. Olmedo, 112 Wn. App. 525, 532, 49

P. d 960 (2002) citing Hyatt v. Sellen Constr. Co.,40 Wn. App. 893, 899, 700 P. d 1164
 3              (                                                             2

1985);
     Everett v. Diamond, 30 Wn. App. 787, 791 92,638 P. d 605 (1981)),
                                              -       2             review denied, 148

Wn. d 1019 (2003).Improper legal conclusions include testimony that a particular law applies
  2                "

to the case, or testimony that the defendant's conduct violated a particular law."Olmedo, 112

Wn.App. at 532 (citing Hyatt, 40 Wn. App. at 899).

       Here, Wyatt sought to introduce Trooper Orf's opinion that Wyatt's driving was merely'

negligent. Orf's testimony would have offered an opinion that Wyatt violated the second degree

negligent driving statute and, consequently, that Wyatt did not violate the vehicular assault
statute.    RCW 46. 1. 522.
                525, .
                  6                    Because Orf's excluded testimony would have offered an

opinion that Wyatt violated a particular law, it is an improper legal opinion. Accordingly, the

trial court did not err by excluding Orf's legal opinion about Wyatt's driving.

SUFFICIENCY OF THE EVIDENCE


           Wyatt challenges the sufficiency of the evidence supporting      the   jury's   verdict.   Wyatt

does not challenge the sufficiency of the evidence proving that she drove the vehicle or that

Ziesemer suffered substantial bodily harm as a result of the collision. Instead, Wyatt challenges
                                             '

the sufficiency of the evidence proving that she operated her vehicle in a reckless manner.

Sufficient evidence supports the jury's verdict finding Wyatt guilty of vehicular assault.

           Evidence is sufficient if,when viewed in the light most favorable to the jury's verdict, it

permits a.rational trier of fact to find the essential elements of the crime beyond a reasonable

                                                    7
No. 42944 6 II
          - -



doubt. State v. Salinas, 119 Wn. d 192, 201, 829 P. d 1068 (1992).A claim of insufficiency
                               2                  2               "

admits the truth of the State's evidence and all inferences that reasonably can be drawn

therefrom."Salinas, 119 Wn. d at 201. Circumstantial and direct evidence are equally reliable.
                          2

State   v.   Delmarter, 94 Wn. d 634, 638, 618 P. d 99 (1980). Our role is not to reweigh the
                             2                  2


evidence and substitute our judgment for that of the jury. State v. Green, 94 Wn. d 216, 221,
                                                                                2

616 P. d 628 (1980).
     2

          The State charged Wyatt with vehicular assault under RCW 46. 1.To convict
                                                                   a).
                                                                   522(
                                                                      1)(
                                                                      6

Wyatt of vehicular assault, the State was required to prove that Wyatt (1)operated or drove a

vehicle, 2)in
         (          a   reckless manner, and (3)caused substantial             bodily   harm to another.   RCW


a). reckless"[
522(
46. 1.D]
   1)( `in a
   6   riving manner' means `driving in a rash or heedless manner,

indifferent to the consequences. "'          State v. Roggenkamp, 153 Wn. d 614, 622, 106 P. d 196
                                                                        2                  3

2005)quoting State v. Bowman, 57 Wn. d 266, 270, 271, 356 P. d 999 (1960)).
      (                            2                       2

          Wyatt relies    on   three arguments to support her insufficient evidence claim. First, she


alleges      that her   driving demonstrated caution.           Second, she . claims that her driving "was

consistent with distracted,         negligent,   or   incompetent driving, not      reckless   driving." Br. of

Appellant      at 38.    Third, she argues that "there was no evidence here of joyriding, excessive

speeds, or intoxication."Br.of Appellant at 39.

          As an initial matter, we reject Wyatt's first contention that her driving was actually

evidence of caution. We view all inferences that can be drawn from the evidence in the light

most favorable to the          jury's   verdict. Salinas, 119 Wn. d at 201.
                                                                2                       Inferring that Wyatt was

exercising caution by driving at speeds that often fluctuated below the speed limit is

fundamentally at odds with the jury's verdict finding Wyatt guilty of vehicular assault.

Substantial evidence supports the jury's verdict          on   this   point.
No. 42944 6 II
          - -



         Wyatt also contends that her driving was not consistent with reckless driving but rather

distracted, negligent,   or   incompetent driving." Br. of Appellant          at 38.   Wyatt attempts to

support her argument by demonstrating what she did not do, i..,
                                                            e joyriding, excessive speeds, or

intoxication.   But the fact Wyatt's driving could have been worse has no bearing on whether

sufficient evidence supports the   jury's   verdict.       Rather, the appropriate inquiry is whether the

manner of her driving is sufficient to prove beyond a reasonable doubt that she drove in a rash

and heedless manner indifferent to the consequences. Roggenkamp, 153 Wn. d at 622. Here,
                                                                       2

the State presented evidence that Wyatt drove at fluctuating speeds and swerved in and out of her

lane. Wyatt also hit the " leeper bumps"at the center line and fog line causing her entire vehicle
                         s

to vibrate.     And, ultimately, Wyatt swerved across the entire width of the roadway to hit

Ziesemer while he was attempting to avoid a collision by riding his motorcycle on the far, right

fog line. Based on this evidence, any rational jury could find that Wyatt was driving in a rash
and heedless manner indifferent to the consequences at the time of the collision (and for the

previous 5. miles)..
          5       Accordingly, her sufficiency of the evidence claim fails.
SAG


         In her SAG, Wyatt argues that her right to be free from double jeopardy was violated

because the district court had already dismissed her citation for second degree negligent driving

related to this accident. Because jeopardy does not attach to civil traffic infractions, Wyatt's

right to be free from double jeopardy was not violated.

         The double jeopardy clause of the United States Constitution provides that no person

shall "be subject for the same offense to be twice put in jeopardy of life or limb."U. .CONST.
                                                                                     S

2
 Wyatt also challenges the decision to reopen the investigation. However, there is no legally
enforceable right to the results of an incomplete investigation and we decline to address this
claim.
                                                       9
No. 42944 6 II
          - -



amend. V.       The double jeopardy clause in the Washington Constitution provides the same

protection as the federal constitution. In re Pers. Restraint of Davis, 142 Wn. d 165, 171, 12
                                                                              2

P. d 603 (2000).For a defendant's double jeopardy right to be violated, three elements must be
 3               "

present: (   1)jeopardy must have previously attached, (2)jeopardy must have previously

terminated, and (3) defendant is again being put in jeopardy for the same offense."State v.
                   the

McPhee, 156 Wn. App. 44, 56, 230 P. d 284 (citing State v. Corrado, 81 Wn. App. 640, 645,
                                  3

915 P. d 1121 ( 1996)),
     2               review           denied, 169 Wn. d
                                                    2           1028 (2010). The             double jeopardy clause

protects only against the imposition of multiple criminal punishments for the same offense."
Hudson    v.   United States, 522 U. . 93, 99, 118 S. Ct. 488, 139 L. Ed. 2d 450 (1997). If the
                                   S


penalty is civil, then the defendant does not face multiple criminal punishments. Accordingly,

jeopardy does not attach.

         To determine whether a punishment is civil, rather than criminal, we first ask whether the
             indicated    either   expressly        impliedly   a   preference   for   one   label   or   the other. "' In
legislature "`                                 or




re Det. of Turay, 139 Wn. d 379, 416, 986 P. d 790 (1999) quoting Hudson, 522 U. . at 99)
                        2                  2              (                    S

internal quotation marks omitted).Even if the legislature has clearly indicated that the nature of

the punishment is civil,we inquire whether the punishment is so punitive as to render it criminal
rather than civil. Turay, 139 Wn. d at 417 (quoting Hudson, 522 U. . at 100). The defendant
                                2                                S

must   present     high level of proof
                 a `                      that the statutory scheme he is          challenging ... is so punitive

that it must be considered criminal and not civil."Turay, 139 Wn. d at 416 (quoting In re Pers.
                                                                2

Restraint    of Young,   122 Wn. d
                               2       1, 20, 857 P. d 989 (1993)). "'[ ly the clearest proof will
                                                   2              O]  n




                                                         10
No. 42944 6 II
          - -



suffice to override legislative intent and transform what has been denominated a civil remedy

into   a   criminal    penalty. "' Turay, 139 Wn. d at 417 (quoting Hudson, 522 U. .at 100) internal
                                                2                                S           (

quotation marks omitted).

            In 1996, the legislature distinguished between first degree and second degree negligent

driving.     LAWS      of   1996, ch. 307, § 1. Second degree negligent driving was decriminalized and

designated      as a   traffic infraction. LAWS     of    1996, ch. 307, § 1. Clearly, the legislature intended

for second degree negligent driving to be designated as a civil rather than criminal punishment.

Accordingly, Wyatt must show that the penalty for second degree negligent driving is so punitive

as to render second degree negligent driving criminal, despite the legislature's explicit

designation.

            Second degree negligent driving is punishable by a $ 50 fine. RCW 46. 1.A
                                                               2              c).
                                                                              525(
                                                                                 1)(
                                                                                 6

                                     imprisonment   for   committing second degree negligent driving.      See
person is not         subject   to



RCW 46. 1.Furthermore, the Department of Licensing may not suspend or revoke a
    c).
    525(
       1
       6 )(

person's driver's license solely on the grounds that the driver committed second degree negligent

driving. See RCW 46. 0. We do not see any proof, much less clear proof, that would allow
                 291.
                   2

us to override the legislature's explicit intent to designate second degree negligent driving a civil

traffic infraction. Turay, 139 Wn. d at 417. Accordingly, Wyatt was never subject to multiple
                                 2

criminal punishments as a result of her earlier second degree negligent driving infraction, and

jeopardy never attached. Her right to be free of double jeopardy was not violated.




                                                             11
No.42944 6 II
         - -



       The trial court's evidentiary rulings were not erroneous, sufficient evidence supports the

jury's verdict, and Wyatt's right to be free of double jeopardy was not violated. 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

040,
2.6.it is so ordered.
 0

                                                     fir°              o




                                                      INN-
                                                         BRINTNALL, J.
We concur:




                                                                   M




                                                12
