                                                                                                        FILED
                                                                                                QUOUPT OF APPEALS
                                                                                                      DIIVIS1O iq 11
                                                                                             2013 MAR 19 AM 8: 4 4

                                                                                             ST

                                                                                             t




      IN THE COURT OF APPEALS OF THE STATE OF WANHEN U l vlv

                                               DIVISION II

STATE OF WASHINGTON,                                                            No. 43372-
                                                                                    11-  9


                                     Respondent,

          V.



JAMES MICHAEL MILLER,                                                       UNPUBLISHED OPINION




               BRINTNALL, J.
          QUINN-                       —   James Miller appeals his conviction for attempting to elude a

pursuing'police vehicle, arguing that the State did not present sufficient evidence that he knew he
was being pursued by a police vehicle.-We-affirm.1 - -- - - - - -
          At about 11: 5 PM on July 1, 2011, Morton Police Officer Doug Osterdahl was driving
                     1

westbound      on   Highway    12.     He was in full uniform and was driving a fully-
                                                                                     marked patrol

vehicle               with             and sirens.       He   heard,'but could     not          a   motorcycle.        A
           equipped           lights                                                     see,



motorcycle, without a headlight, then passed him, forcing him to turn onto the gravel shoulder of
the   highway. Osterdahl activated his           emergency         lights   and sirens and   began pursuit. He

measured the motorcycle's speed by radar at 84 MPH. When he activated the lights and sirens,

the motorcycle rider changed his seat from sitting upright to crouching forward over the gas tank


1 A commissioner of this court initially considered Miller's appeal as a motion on the merits
  .
under RAP 18. 4 and then transferred it to
            1                                        a   panel   of judges.
No. 43372 9 II
          - -



in order to gain speed. Osterdahl saw the motorcycle make two unsafe passes of other vehicles

before losing sight of the motorcycle. He had pursued the motorcycle for one and a half to two

miles.


         Officer Osterdahl received a report of a motorcycle having pulled into a driveway off of

Highway 12. ,He found the motorcycle that he had pursued behind a duplex on that property. Its

engine was still hot to the touch. A resident of the duplex reported hearing something skidding
down the driveway and then seeing Miller enter a travel trailer on the property. Osterdahl and a

responding   officer knocked    on   the door of the trailer. A woman in the trailer denied them


admittance. After the officers told her that they were obtaining a search warrant, Miller came out

of the trailer.   Osterdahl informed Miller that he was under arrest for attempting to elude a

pursuing police vehicle. Miller replied, I was not riding any f* *motorcycle." 1 Report of
                                         "                      ing *
Proceedings at 43.

         The State   charged   Miller with   attempting   to elude   a   pursuing police   vehicle. Officer


Osterdahl testified as described above. Miller testified that he has constant ringing in his ears as

a result of chainsaws. He testified that he was riding to visit his girlfriend at her -
                                            -                                  -

grandparents' home after learning that he was not the biological father of his.daughter. He said
he could only hear the motorcycle exhaust and the ringing in his ears. He denied having heard
Osterdahl's sirens.    He also said he never turned his head backwards because of the speed at

which he    was   riding. He admitted driving recklessly but denied knowing that Osterdahl was

pursuing him. Finally, he said he delayed exiting the trailer because there was an outstanding

warrant for his failure to pay child support. The jury found Miller guilty as charged.

         For a jury to convict a driver of attempting to elude a pursing police vehicle, the State

must prove beyond a reasonable doubt that (1) police officer was in uniform, 2) pursuing
                                            the                              ( the
                                                    2
No. 43372 9 II
          - -



police vehicle was equipped with lights and sirens, 3) pursuing police vehicle gave a visual
                                                    ( the

or audible signal for the driver to stop, 4)the driver willfully fails to immediately come to a
                                          (

stop, and (5) driver drives in a reckless manner. RCW 46. 1.
             the                                      024(
                                                         1 State v.
                                                         6 ); Tandecki, 120

Wn. App. 303, 308 09;84 P. d 1262 (2004); d,153 Wn. d 842, 109 P. d 398 (2005);
                  -      3              aff'      2             3             State v.

Stayton, 39 Wn. App. 46, 49, 691 P. d 596 (1984),
                                  2             review denied, 103 Wn. d 1026 (1985).
                                                                     2

Miller argues that the State did not present sufficient evidence that he willfully failed to come to

a stop because it did not prove that he knew he was being pursued by a police vehicle. State v.

Flora, 160 Wn. App. 549, 555, 249 P. d 188 (2011).
                                   3

       Evidence is sufficient if,when viewed in a light most favorable to the State, it permits

any rational trier of fact to find the essential elements of the crime beyond a reasonable doubt.
State v. Salinas, 119 Wn. d 192, 201, 829 P. d 1068 (1992).A claim of insufficiency admits
                        2                  2               "

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

Salinas, 119 Wn. d at 201.
               2

        Despite his denial of knowing that he was being pursued and, thus, his denial of willfully
failing to stop, the willfulness ofa defendant's conduct may be -inferred - the jury " here it is - - -
                                                                          by         w

plainly indicated as a matter of logical probability."State v. Delmarter, 94 Wn. d 634, 638, 618
                                                                               2
P. d 99 (1980).The State presented evidence that Miller passed Officer Osterdahl in an unsafe
 2
manner and that immediately after Osterdahl activated his emergency lights and sirens, Miller

changed his seat to be able to increase his speed. The logical inference from that behavior is that
Miller knew that Osterdahl      was    beginning   to pursue        him.   Flora is inapplicable because it

addresses the driver's knowledge that he was being pursued by a police vehicle, as opposed to a

private vehicle, not   the driver's   knowledge that     he   was   being pursued. 160 Wn. App. at 555.

Miller does not claim that he did not know that the vehicle pursuing him was a police vehicle.

                                                     3
No. 43372 9 II
          - -



The State presented sufficient evidence that Miller knew he was being pursued by a police

vehicle, equipped with lights and sirens driven by a uniformed police officer, and willfully

attempted to elude it by driving in a reckless manner after having been given visual and audible

signals to bring his vehicle to a stop.

       We affirm Miller's conviction.


       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




                                                 QtINN-
                                                      BRINTNALL, J.




                                                F.
