      IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON,                     )       DIVISION ONE


              Respondent,                 ]      No. 71938-6-1
                                                                                                O

         v.                               ]      UNPUBLISHED OPINION

ANDREW FORD SMITH,                        '                                            1—

                                                                                       o
              Appellant.                  i      FILED: July 20, 2015                           7? ~o p"

                                                                                       7P"



                                                                                           ^        —< O
       Dwyer, J.—Andrew Smith appeals from the judgment entered on a jury's                ^        o%
                                                                                           en       ^-j:,
verdict finding him guilty of attempting to elude a pursing police vehicle. Smith
challenges the sufficiency ofthe evidence to support the jury's verdict,
contending that insufficient evidence was adduced to establish that he drove "in a
reckless manner" afterthe police officer activated his vehicle's emergency lights.
Smith also contends that the trial court's allowance of testimony opining that

Smith "was under the influence of something," and a reference to Alcoholics

Anonymous, an objection to which was sustained and the evidence ordered
stricken, constitute reversible error. We reject Smith's contentions, concluding
both that sufficient evidence was adduced at trial and that he fails to establish an

entitlement to appellate relief with regard to the allegedly improper testimony.

Consequently, we affirm.

                                          I


       On March 18, 2012, Smith drove to Brian Gaylord's house in his green

Ford Explorer. When confronted by Gaylord, Smith asserted that he needed to
No. 71938-6-1/2


relieve himself, at which time Smith appeared to urinate in Gaylord's goat pen.

Gaylord questioned Smith, threatened to call the police, and eventually escorted

Smith back to Smith's vehicle and told him that he needed to leave. Smith then

slowly, but erratically, backed out of Gaylord's driveway, taking 10 minutes to

back out of the quarter-mile-long driveway, despite the fact that the driveway was

circular and Smith could have easily driven forward to leave the property.

       Gaylord's daughter, Bree Gaylord, was also at his residence that day and

became concerned after seeing Smith go behind the shop and appear to urinate

in the goat pen. After Gaylord and Smith walked out from behind the shop, Bree

called 911. Officer Dodds was dispatched in response to Bree's 911 call and

passed Smith's green Ford Explorer going in the opposite direction on State

Route 20. Dodds turned his fully marked patrol car around and began to follow

Smith's vehicle. Dodds followed Smith for two to four miles on State Route 20,

during which time Dodds observed Smith's vehicle cross the double yellow

center line on two occasions. As they approached Metcalf Street, Smith's vehicle

made an abrupt move into the center lane and made a leftturn southbound on

Metcalf Street, without signaling, causing eastbound traffic on State Route 20 to

come to a stop. Dodds then contemporaneously activated both his vehicle's

emergency lights and siren.

       Smith did not stop his vehicle but, rather, continued south on Metcalf

Street, eventually making a U-turn, passing Dodds vehicle, and proceeding north.

Dodds followed Smith, continuing the pursuit until Smith went past a "stop line"

and came to a stop partially in the eastbound lane of State Route 20. Dodds
No. 71938-6-1/3


exited his patrol vehicle and made contact with Smith at the driver's side door of

Smith's vehicle. There was loud music blaring from Smith's vehicle and Smith

ignored multiple requests from Dodds to turn off the music and to turn off his

ignition. Instead, while Dodds was standing at the driver's side window, Smith

put his vehicle into drive and performed a U-turn, crossing into State Route 20

and continuing south on Metcalf Street. Dodds returned to his patrol vehicle and

recommenced his pursuit of Smith.

       Meanwhile, a nearby officer, Sergeant Adams, joined the pursuit in a fully

marked patrol vehicle with its emergency lights activated. Smith's vehicle

continued down Metcalf Street at a slow rate of speed. Adams maneuvered his

vehicle in front of Smith's vehicle, and Dodds positioned his vehicle behind

Smith's, boxing Smith in. Dodds and Adams eventually forced Smith's vehicle to

a stop in front ofthe Sedro-Woolley Police Department. Dodds proceeded to

take Smith into custody.

       Smith was charged by information with attempting to elude a pursuing

police vehicle and with driving under the influence. Ajury returned a guilty
verdict as to the charge of attempting to elude a pursuing police vehicle;

however, Smith was found not guilty of driving under the influence. Smith was

sentenced to two months of incarceration and ordered to pay various amounts of

fines and assessments. He now appeals.

                                          II


       Smith contends that insufficient evidence was adduced at trial to support

the jury's finding that he was driving recklessly after Officer Dodds activated his
No. 71938-6-1/4


patrol vehicle's emergency lights. This is so, he asserts, because the phrase "in

a reckless manner" means to drive in a "rash or heedless manner, indifferent to

the consequences," which Smith avers requires a high rate of speed, and he was

not speeding. We disagree.

      The relevant statute sets forth the offense of attempting to elude a

pursuing police vehicle, in pertinent part, as being committed by:

      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.

RCW 46.61.024(1).

       Division Two has held, and we agree, that for the offense of attempting to

elude a pursuing police vehicle the phrase "'in a reckless manner'" means
"'driving in a rash or heedless manner, indifferent to the consequences.'" State v.
Ridqlev. 141 Wn. App. 771, 781, 174 P.3d 105 (2007) (quoting State v.

Roqqenkamp, 153 Wn.2d 614, 621-22, 106 P.3d 196 (2005)). In no case has the

definition of "driving in a rash or heedless manner, indifferent to the

consequences" been reduced down to a requirement that the behavior include
driving at a high rate ofspeed. Seee.q.. State v. Randhawa, 133 Wn.2d 67, 78,
941 P.2d 661 (1997) (speed was a factor but was explicitly held to not be
dispositive; "although it was essentially undisputed that Randhawa was
speeding, we cannot say with substantial assurance that the inferred fact of
reckless driving flowed from the evidence ofspeed alone"); Ridqlev, 141 Wn.
No. 71938-6-1/5


App. at 775-76 (speed may have been a factor but not indicated to be

dispositive).

       Additionally, when interpreting statutes, "we 'must not add words

where the legislature has chosen not to include them."' Lake v.

Woodcreek Homeowners Ass'n, 169 Wn.2d 516, 526, 243 P.3d 1283

(2010) (quoting Rest. Dev., Inc. v. Cananwill, Inc., 150 Wn.2d 674, 682, 80

P.3d 598 (2003)). The relevant statute does not mention speed.

       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.

RCW 46.61.024(1).

       Nor does the accepted judicial definition of "in a reckless manner"—

"driving in a rash or heedless manner, indifferent to the consequences"—

reference the driver's rate of speed. Thus, we refuse to reduce "driving in a rash

or heedless manner, indifferent to the consequences" down to a requirement that

the prohibited behavior necessarily includes driving at a high rate of speed.

       "When a statutory term is undefined, the court may look to a dictionary for

its ordinary meaning." In re Estate of Blessing, 174 Wn.2d 228, 231, 273 P.3d

975 (2012) (citing State v. Gonzalez, 168 Wn.2d 256, 263, 226 P.3d 131 (2010));

accord, State v. Rodqers, 146 Wn.2d 55, 62, 43 P.3d 1 (2002). The dictionary

definition of "rash" is: "characterized by or proceeding from lack of deliberation or

caution" and "imprudently involving or incurring risk." Webster's Third New

International Dictionary 1883 (2002). The dictionary definition of "heedless" is:



                                        -5
No. 71938-6-1/6


"inattentive, unmindful, careless, unobservant, [or] oblivious." Webster's, supra,

at 1049.


       The due process clauses of the federal and state constitutions, U.S.

Const, amend. XIV; Wash. Const, art. I, § 3, require that the State prove each

element of a crime beyond a reasonable doubt. Apprendi v. New Jersey, 530

U.S. 466, 476-77, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000). "[T]he critical

inquiry on review of the sufficiency of the evidence to support a criminal

conviction must be ... to determine whether the record evidence could

reasonably support a finding of guilt beyond a reasonable doubt." Jackson v.

Virginia, 443 U.S. 307, 318, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979). "[T]he

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." Jackson, 443 U.S.

at 319.

       A claim of evidentiary insufficiency admits the truth of the State's evidence

and all reasonable inferences from that evidence. State v. Kintz, 169 Wn.2d 537,

551. 238 P.3d 470 (2010): State v. Salinas, 119Wn.2d 192, 201, 829 P.2d 1068

(1992). Circumstantial evidence and direct evidence can be equally reliable.

State v. Delmarter, 94 Wn.2d 634, 638, 618 P.2d 99 (1980). We defer to the jury

on questions of conflicting testimony, credibility of witnesses, and the

persuasiveness of the evidence. State v. Killinqsworth, 166 Wn. App. 283, 287,

269P.3d 1064(2012).
No. 71938-6-1/7


        The jury was instructed that to convict it must find "[tjhat while attempting

to elude a pursuing police vehicle, the defendant [Smith] drove his vehicle in a

reckless manner." Jury Instruction 11. The jury was further instructed that "[t]o

operate a motor vehicle in a reckless manner means to drive in a rash or

heedless manner, indifferent to the consequences." Jury Instruction 12.

        After Officer Dodds activated his vehicle's patrol lights, Smith repeatedly

ignored Dodds's presence and continued driving. A jury could find that Smith's

ignorance demonstrated a state of being that was, at a minimum, "inattentive,

unmindful, . .. [or] oblivious," thus establishing that he drove heedlessly.

Webster's, supra, at 1049. Furthermore, after Dodds had exited his vehicle and

made contact with Smith, and with Dodds standing right next to Smith's vehicle,

Smith put his vehicle into drive and made another U-turn. A jury could find this to

be an action blatantly taken with an "indifference] to the consequences." When

viewed in the light most favorable to the State, sufficient evidence was adduced

to support the jury's conclusion that Smith drove "in a rash or heedless manner,

indifferent to the consequences."1

                                                   Ill


        Smith contends that the trial judge improperly allowed three instances of

testimony opining on Smith's intoxication level. He asserts that testimony stating

that Smith was "under the influence of something," along with a stricken



        1Although not necessary for affirmance, sufficient evidence was also adduced that Smith
drove in a rash manner. Smith made a U-turn in the middle of Metcalf Street, drove north, and
did not come to a stop until he was partially into the eastbound lane of State Route 20, thereby
exposing himself to the possibility of a collision and obstructing traffic. Thus, a jury could find that
Smith demonstrated a "lack of deliberation or caution" and "imprudently involved] or incur[ed]
risk" sufficient to conclude that he drove rashly. Webster's, supra, at 1883.
No. 71938-6-1/8


reference to Alcoholics Anonymous, require reversal. This is so, he maintains,

because testimony that he "was under the influence of something," was not a

valid opinion as to his intoxication but, rather, was an opinion on his guilt, and it is

improper to opine on the defendant's guilt. Smith further asserts that the only

value to the testimony regarding Alcoholics Anonymous was to prove "the

character of a person in order to show action in conformity therewith," and thus

was impermissible pursuant to ER 404(b). We disagree.

       "Generally, no witness may offer testimony in the form of an opinion

regarding the guilt. . . of the defendant." State v. Demery, 144 Wn.2d 753, 759,

30 P.3d 1278 (2001). However, Smith is appealing his conviction for attempting

to elude a pursuing police vehicle. Intoxication is not an element of attempting to

elude a pursuing police vehicle. Nor is intoxication a dispositive indicator of

whether Smith drove in a "rash or heedless manner, indifferent to the

consequences," while attempting to elude a pursuing police vehicle. Therefore,

testimony that Smith was "under the influence of something" did not constitute an

opinion on his guilt. Smith does not establish an entitlement to appellate relief on

this claim of error.

       With regard to the reference to Alcoholics Anonymous, the experienced

trial judge properly sustained the defendant's objection and ordered that the

objectionable testimony be stricken, thereby "curfing] any error recognized by

defense counsel at trial." State v. Fisher, 4 Wn. App. 512, 514, 483 P.2d 166

(1971). Appellate relief is not warranted.




                                           8
No. 71938-6-1/9



       Finally, even if there were error, the alleged error was harmless.

"'Evidentiary error is grounds for reversal only if it results in prejudice. An error is

prejudicial if, "within reasonable probabilities, had the error not occurred, the

outcome of the trial would have been materially affected." Improper admission of

evidence constitutes harmless error if the evidence is of minor significance in

reference to the evidence as a whole.'"     In re Detention of Post, 145 Wn. App.

728, 748, 187 P.3d 803 (2008) (citations omitted) (quoting State v. Neal, 144

Wn.2d600, 611,30P.3d 1255 (2001)), affd, 170 Wn.2d 302, 241 P.3d 1234

(2010). As previously established, testimony that Smith was "under the influence

of something" was not an opinion on his guilt of the charge of attempting to elude

a pursuing police vehicle—the only count on which he was convicted and the

count from which his appeal is taken. Further, the juryfound Smith not guilty of

driving under the influence. While the testimony that Smith was "underthe

influence of something" clearly applied to the DUI charge, the jury's not guilty

verdict plainly indicates that it paid little heed to the testimony. Any error was

harmless.


       Affirmed.


                                                     b^-^
We concur:




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