                                                                  FILEO
                                                          CORT
                                                            U   OF APPEALS OW I
                                                           STATE OF WASHION
                                                                        NGT     •

                                                           2018 MAY -7 Alf 8:30



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

STATE OF WASHINGTON,          )                   No. 76206-1-1
                              )
              Respondent,     )
                              )
         v.                   )
                              )                   UNPUBLISHED OPINION
ROBERT TERRANCE JACKSON, JR., )
                              )                   FILED: May 7, 2018
              Appellant.      )
                              )

       VERELLEN, J. — Following a crash that killed Robert Jackson's passenger,
Jackson's blood was drawn to test for alcohol and drugs. Jackson's constitutional

right to investigate his case does not require advisement about the right to

independent blood testing under due process or equal protection.

       There was significant media coverage following Jackson's arrest. Because

Jackson does not show a probability of prejudice from pretrial publicity, the trial

court did not abuse its discretion when it denied Jackson's motion for a change of

venue from King County to Snohomish County.

       The trial court determined Jackson was a persistent offender based on two

prior convictions for "most serious offenses." The judgment and sentence for one

of the prior convictions cites to the wrong statute. Because the charging

documents from the prior conviction showed the State properly charged and
No. 76206-171/2



convicted Jackson under the correct statute, the trial court did not err in

considering the prior judgment.

         The trial court determined Jackson was a persistent offender. He asserts

a jury should have decided the fact of prior convictions. Under the Persistent

Offender Accountability Act,1 a judge may find the fact of a prior conviction. We

conclude the trial court did not violate Jackson's Sixth Amendment right to a jury

trial.

         Therefore, we affirm.

                                       FACTS

         On November 12, 2015, Jackson was driving through a 25 mile per hour

speed zone at a high rate of speed when he lost control of his vehicle. He crashed

into a utility box. Jackson's passenger, Lindsay Hill, died after being ejected from

the vehicle.

         Jackson was transported to the hospital and his blood was drawn for

testing. The test showed Jackson had alcohol and THC2 in his blood. The State

charged Jackson with vehicular homicide, felony hit and run, and unlawful

imprisonment.

         Before trial, Jackson moved for a change of venue to Snohomish County

and to suppress the blood test results. The court denied both requests. Moving

forward, Jackson chose to represent himself and waived his right to a jury. During


         1 RCW 9.94A.570.
         2 Tetrahydrocannabinol (marijuana).




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trial, a forensic scientist testified that based on the level of alcohol in Jackson's

 blood at the time of the draw, his blood alcohol level was likely between .13 and

.22 at the time of the crash.

        Following a bench trial, the court found Jackson guilty of vehicular homicide

 and felony hit and run. Because he had two prior convictions for most serious

 offenses, the court found Jackson was a persistent offender and sentenced him to

 life imprisonment without parole.

        Jackson appeals.

                                      ANALYSIS

 I. Blood Test

        Jackson contends the trial court erred in denying his motion to suppress the

, results of his blood test. Jackson argues admission of the results violated his

 rights to due process and equal protection because the State did not advise him of

 the right to independent testing.

        Prior to 2013, RCW 46.20.308 provided that "[a]ny person who operates a

 motor vehicle within this state is deemed to have given consent ... to a test or

 tests of his or her breath or blood."3 The statute required law enforcement officers

 to inform individuals subjected to breath or blood tests of their right to independent

 blood testing.4 Following a United States Supreme Court decision, the

 Washington legislature removed any reference to blood from the informed consent


        3 Former RCW 46.20.308(1)(2012).
        4 Former RCW 46.20.308(2)(2012)




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No. 76206-1-1/4



statute.5 The statute in effect when Jackson was arrested in 2015 only required

advisement of the right to independent testing for a breathalyzer.6

       Jackson argues the due process right to collect evidence and present a

defense includes the right to advisement of the right to independent blood testing.

Although Jackson suggests case law is consistent with this argument, he cites

exclusively to cases decided before the 2013 amendment.

       Following the 2013 amendment, in State v. Sosa, Division Three of this

court considered whether criminal defendants had a separate constitutional right to

advisement about independent blood testing.7 The court determined "[t]he fact

that a defendant has a constitutional right to investigate his or her case and

develop evidence does not provide an independent basis for requiring an

advisement about independent blood testing. ...There are no due process

problems with eliminating this requirement."5

       Jackson also argues he has a right under equal protection to advisement

about independent blood testing. He contends he is similarly situated to

individuals whose breath is tested and no rational basis supports different



       5 Statev. Sosa, 198 Wn. App. 176, 181-82, 393 P.3d 796 (2017); see
Missouri v. McNeely, 569 U.S. 141, 133 S. Ct. 1552, 185 L. Ed. 2d 696(2013)
("We hold that in drunk-driving investigations, the natural dissipation of alcohol in
the bloodstream does not constitute an exigency in every case sufficient to justify
conducting a blood test without a warrant.").
       6 Former   RCW 46.20.308(1)(2013).
       7 198 Wn. App. 176, 183, 393 P.3d    796(2017).
       8 Id.




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No. 76206-1-1/5



treatment. But he provides no authority applying equal protection in a similar

situation. In Sosa, the court concluded, the defendant could not "show he is

similarly situated to individuals whose breath is tested for alcohol concentration, as

required for an equal protection challenge. Blood and breath testing are different

for a variety of reasons. . .. These differences warrant different statutory

treatment."9 Even if blood samples degrade over time, as argued by Jackson, he

had the opportunity to retest the blood sample soon after his arrest and

appointment of counsel.

       We follow Sosa and conclude there is no due process or equal protection

right to advisement about independent blood testing. For this reason, the trial

court did not err in denying Jackson's motion to suppress the blood test results.

II. Change of Venue

       Jackson argues the trial court abused its discretion in denying his request

for a change of venue to Snohomish County.

       A trial court's decision to deny a motion for a change of venue is reviewed

for abuse of discretion.10 We consider nine factors to determine whether the court

abused its discretion:

      "(1) the inflammatory or noninflammatory nature of the publicity;
      (2) the degree to which the publicity was circulated throughout the
      community;(3) the length of time elapsed from the dissemination of
      the publicity to the date of trial;(4)the care exercised and the
      difficulty encountered in the selection of the jury;(5)the familiarity of


       9 Id. at   184.
       10 State v. Jackson, 150 Wn.2d 251, 269,76 P.3d 217(2003).




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No. 76206-1-1/6



       prospective or trial jurors with the publicity and the resultant effect
       upon them;(6) the challenges exercised by the defendant in
       selecting the jury, both peremptory and for cause;(7) the connection
       of government officials with the release of publicity;(8) the severity of
       the charge; and (9) the size of the area from which the venire is
       drawn."[11]

       "A motion for change of venue should be granted when necessary to

effectuate a defendant's due process guaranty of a fair and impartial trial but a

defendant must show a probability of unfairness or prejudice from pretrial

publicity."12

       Jackson was one of 3,200 individuals mistakenly released early due to a

Department of Corrections error. Jackson should have been in custody when the

crash occurred in November 2015. As a result, there was significant media

coverage following Jackson's arrest.

       Under the first factor, although Jackson's arrest did receive media attention,

the publicity primarily focused on the error by Department of Corrections in

releasing him early. Although the coverage emphasized the tragedy of Hill's

death, Jackson's prior convictions, and his status as a "felon," the information was

factual.

       As to the second factor, in the days after the accident, the coverage was

confined to local news outlets. Although most of the articles came out of King

County, Jackson admits these reports received statewide coverage, which would


       11 Id. at 270(quoting State v. Crudup, 11 Wn. App. 583, 587, 524 P.2d 479
(1974)).
       12 Hoffman, 116 Wn.2d 51, 71, 804 P.2d 577(1991).




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No. 76206-1-1/7



include Snohomish County. Over a month later, national and international news

organizations published articles about the crash and Jackson's arrest.

       Neither the first nor the second factor shows a probability of prejudice from

pretrial publicity. At a minimum, Jackson fails to show, under either factor, that a

change of venue to Snohomish County would have mitigated any alleged prejudice.

       Similarly, the third factor does not support a change of venue because the

coverage appears to be limited to the two months following the crash. There is no

evidence in the record of specific incidents of continued publicity between

December 2015 and the hearing on the motion for change of venue in February

2016. Additionally, the trial court acknowledged that Jackson could renew the

motion if there was additional publicity between the hearing and trial. Jackson did

not renew his motion, and he failed to present evidence of continued publicity

between February 2016 and the bench trial in July 2016.

      The fourth, fifth, and sixth factors relate to jury selection and are not

relevant in this case because Jackson waived his right to a jury trial.

       Under the seventh factor, both the governor and the Department of

Corrections secretary publicly commented on Hill's death. The comments

expressed regret over Jackson's early release. The record does not support

Jackson's argument that the officials urged conviction or expressed an

endorsement of the State's case against Jackson. Jackson does not establish a

probability of prejudice under this factor.




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No. 76206-1-1/8



       As to the eighth factor, the State charged Jackson with vehicular homicide,

felony hit and run, and unlawful imprisonment. The State concedes these are

serious charges, but courts have denied motions for change of venue involving

charges of similar severity.13

       And finally, the ninth factor does not support a change of venue because

King County has a large population from which a venire could have been drawn.

       We conclude the trial court did not abuse its discretion when it denied

Jackson's motion for a change of venue.

III. Persistent Offender

       Jackson argues he is not a persistent offender because his prior judgment

for second degree assault is facially invalid. Jackson contends the trial court erred

in denying his motion to exclude the prior judgment.

       A "persistent offender" is an individual who has been convicted of any

felony considered a "most serious offense" and has previously "been convicted ...

on at least two separate occasions .. . of felonies that under the laws of this state

would be considered most serious offenses?" Under the Persistent Offender

Accountability Act, "all adult offenders convicted of three 'most serious offenses'

are sentenced to life in prison without the possibility of release."15


      13 See Jackson, 150 Wn.2d at 273 (first degree murder); Crudup, 11 Wn.
App. at 559(second degree murder); Hoffman, 116 Wn.2d at 73 (first degree
aggravated murder and first degree assault).
       14   RCW 9.94A.030(38)(a)(i), (ii).
       15   State v. Witherspoon, 180 Wn.2d 875, 888, 329 P.3d 888 (2014).




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No. 76206-1-1/9



      "[A] prior conviction that is unconstitutionally invalid on its face may not be

considered at sentencing."16 A conviction is invalid on its face when it evidences

infirmities of a constitutional magnitude "without further elaboration."17 In the

context of consideration of a prior conviction at sentencing for a subsequent crime,

the court may consider statutory history and charging documents when

determining validity of the prior judgment and sentence.18

       Here, the trial court determined Jackson was a persistent offender based on

two prior convictions for "most serious offenses," a 1998 conviction for second

degree assault, and a 2011 conviction for second degree robbery. The judgment

and sentence for the 1998 conviction improperly cites to repealed

RCW 9A.36.020. At the time Jackson committed the offense, second degree

assault was defined in RCW 9A.36.021.

       During sentencing in the current case, the State presented the jury

instructions and charging documents from the 1998 case to show that Jackson was

properly charged and convicted under RCW 9A.36.021. In the context of

consideration of a prior conviction at sentencing for a subsequent crime, no case

has relied on jury instructions to determine the validity of the prior judgment and




       16   State v. Webb, 183 Wn. App. 242, 250, 333 P.3d 470 (2014).
       17   State v. Ammons, 105 Wn.2d 175, 188, 713 P.2d 719 (1986).
       18 Webb, 183 Wn. App. 250-51.




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No. 76206-1-1/10



sentence.19 Even without considering the jury instructions, the charging documents

were sufficient to show Jackson's 1998 prior conviction was under RCVV 9A.36.021.

       We conclude the trial court did not err in denying Jackson's motion to

exclude his prior judgment. The court properly sentenced Jackson as a persistent

offender.

IV. Right to a Jury Trial

       Jackson contends the court violated his Sixth Amendment right to a jury trial

when it determined he was a persistent offender.

       In Apprendi v. New Jersey, the United States Supreme Court held that

"[o]ther than the fact of a prior conviction, any fact that increased the penalty for a

crime beyond the prescribed statutory maximum must be submitted to a jury, and

proved beyond a reasonable doubt."29 Consistent with Apprendi, our Supreme

Court has "held that for the purposes of POAA, a judge may find the fact of a prior

conviction by a preponderance of the evidence."21

       Jackson does not present any compelling argument challenging this

existing precedent. We conclude the court did not violate Jackson's Sixth

Amendment right to a jury trial.




       19 We do  not rely upon the dicta in cases cited by the State for the
proposition that the court may also consider jury instructions when determining
facial validity.
        29 530 U.S. 466, 490, 120 S. Ct. 2348, 147 L. Ed. 2d 435(2000).

       21   Witherspoon, 180 Wn.2d at 892.




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No. 76206-1-1/1 1



V. Statement of Additional Grounds

       In his statement of additional grounds, Jackson asks this court to reverse

and dismiss his conviction for vehicular homicide. Jackson appears to argue there

was insufficient evidence that he was "under the influence of or affected by

intoxicating liquor or any drug."22

      "The sufficiency of the evidence is a question of constitutional law that we

review de novo.'"23 To determine whether there is sufficient evidence to sustain a

conviction, we review the evidence in the light most favorable to the State and ask

whether any rational trier of fact could have found the essential elements of the

crime beyond a reasonable doubt.24 "A claim of insufficiency admits the truth of

the State's evidence and all inferences that reasonably can be drawn therefrom."25

       RCW 46.61.520 provides:

      (1) When the death of any person ensues within three years as a
      proximate result of injury proximately caused by the driving of any
      vehicle by any person, the driver is guilty of vehicular homicide if the
      driver was operating a motor vehicle:

      (a) While under the influence of intoxicating liquor or any drug, as
      defined by RCW 46.61.502; or

      (b) In a reckless manner; or

      (c) With disregard for the safety of others.


       22   Former RCW 46.61.502(1)(c)(2011).
       23 State v. Hummel, 196 Wn. App. 329, 352, 383 P.3d 592(2016)(quoting
State v. Rich, 184 Wn.2d 897, 903, 365 P.3d 746 (2016)).
       24 State v. Elmi, 166 Wn.2d 209, 214, 207 P.3d 439(2009).

       25 State   v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992).




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No. 76206-1-1/12



         Here, Jackson's blood was drawn 10 hours after the accident. David

Nguyen, a forensic scientist at the Washington State Patrol Toxicology Laboratory,

testified that based on the level of alcohol in Jackson's blood at the time of the

draw, his blood alcohol level was likely between .13 and .22 at the time of the

crash.

         Similarly, in State v. Hill, the State presented evidence that Hill had a .18

percent blood alcohol level over three hours after the accident, and a toxicologist

testified that she had a .23 percent at the time of accident.26 Division Three of this

court held the blood test results and toxicologist's testimony was sufficient

evidence that Hill was intoxicated.27

         Viewed in the light most favorable to the State, the fact finder could

reasonably infer from Nguyen's testimony and the blood test results that Jackson

was under the influence of alcohol at the time of the crash. We conclude that the

State presented sufficient evidence to support Jackson's vehicular homicide

conviction.

         Next, Jackson asks this court to reverse and dismiss his conviction for

felony hit and run because he was physically incapable of complying with the

statute.

         Under RCW 46.52.020(1),"A driver of any vehicle involved in an accident

resulting in the injury to or death of any person . . . shall immediately stop such


         26 48 Wn. App. 344, 352, 739 P.2d    707(1987).
         27   Id. at 352-53.



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No. 76206-1-1/13



vehicle at the scene of such accident. . . and in every event remain at, the scene

of such accident." Jackson was convicted under RCW 46.52.020(4), which

provides that any driver failing to stop is guilty of felony hit and run. But

RCW 46.52.020(4)(d) states, "This subsection shall not apply to any person

injured or incapacitated by such accident to the extent of being physically

incapable of complying with this section." Jackson has the burden of proving this

statutory affirmative defense.28

       Jackson elicited testimony from Dr. James Boehl, the treating emergency

room doctor, that Jackson suffered a head injury as a result of the crash and that

people "with head injuries ... do and say things they normally would not do had

they not suffered a severe blunt trauma to the head."29 Malikai Hill, the victim's

son, testified that shortly after the accident, Jackson looked like he had a

concussion. Evidence that people with concussions may have difficulty

functioning did not compel the trial court, in this bench trial, to find that Jackson's

injuries rendered him physically incapable of staying at the scene of the accident.




       28 See  State v. W.R., Jr., 181 Wn.2d 757, 762, 336 P.3d 1134(2014)("The
legislature does not violate a defendant's due process rights when it allocates to
the defendant the burden of proving an affirmative defense when the defense
merely 'excuse[s] conduct that would otherwise be punishable.")(alteration in
original)(internal quotation marks omitted)(quoting Smith v. United States, 586
U.S. 106, 110, 1338. Ct. 714, 184 L. Ed. 2d 570 (2013)).
       29   RP (July 14, 2016) at 168.




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         Stated another way, the possibility of a concussion and possibility of

   impairment do not establish Jackson was physically incapable of complying with

\ the hit and run statute.
         Therefore, we affirm.




   WE CONCUR:




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