                                                                       FILED
                                                                  FEBRUARY 22, 2018
                                                               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. 34528-9-111
                    Respondent,              )
                                             )
      V.                                     )
                                             )
JOSHUA V. FOWLER,                            )         UNPUBLISHED OPINION
                                             )
                    Appellant.               )

      KORSMO, J.   -Joshua Fowler appeals from his convictions for unlawful

possession of a firearm and attempting to elude a pursuing police vehicle, raising two

challenges to the latter conviction. We affirm.

                                         FACTS

      The incident in question arose when Sergeant Kurt Vigesaa of the Spokane Police

Department, while driving in his patrol car, recognized Mr. Fowler as the driver of an

oncoming vehicle. The two men made eye contact and the officer made a U-turn to get

his vehicle behind Fowler's. The sergeant had recently stopped Mr. Fowler for driving

while license suspended.
No. 34528-9-III
State v. Fowler


       When the officer made the U-tum, Mr. Fowler accelerated his vehicle away from

the patrol car. Sergeant Vigesaa responded by turning on his lights and siren and

followed in pursuit. After four or five blocks, Mr. Fowler pulled into the parking lot of

an apartment complex. He stopped the car and fled to the southeast, while his passenger,

Haley Lloyd, fled to the west. The sergeant followed Mr. Fowler with his patrol vehicle

for a distance before parking and chasing him on foot. During the foot pursuit, Vigesaa

observed Fowler reach into his waistband while running through an area of shrubs and

trees. Shortly thereafter, he surrendered. 1

       The prosecutor filed charges of second degree unlawful possession of a firearm,

possession of a stolen firearm, and attempting to elude a pursuing police officer. The

matter proceeded to jury trial.

       Several times during the testimony of Sergeant Vigesaa, the prosecutor asked him

to describe the defendant's driving. On one occasion, the officer responded that Mr.

Fowler "upon seeing me and making a U-tum, immediately tries to elude me." Report of

Proceedings (RP) at 133. Later, the prosecutor asked for a description of the driving

through intersections:




       1
        After arresting Fowler, Vigesaa checked the shrubbery and found a .45 Smith &
Wesson handgun along with a box of ammunition. The gun's owner later reported it
missing and identified the recovered weapon as his.

                                               2
No. 34528-9-111
State v. Fowler


       [Sergeant Vigesaa]: Well, he was attempting to elude me. He was driving
       recklessly at speeds almost twice the speed limit and was not reducing his
       speed at each one of these uncontrolled intersections.
       [Prosecutor]: In your mind, how did you know or believe that he was
       trying to elude you?
       [Sergeant Vigesaa]: I've been doing this job for almost 25 years. I've had
       numerous people run from me, elude me. I knew immediately upon-that
       he was driving normal. And upon seeing me and his acceleration and his
       failure to stop/pull over, which normal-normal-is the normal behavior
       for citizens upon hearing lights and sirens-his behavior was to drive
       faster, recklessly, and try to get away from me.

RP at 137. On another occasion, the prosecutor asked about Mr. Fowler's speed:

      [Sergeant Vigesaa]: I said approximately 45 miles an hour. That's a
      fluctuation of me a little bit and trying to catch up to him; so we were not
      exactly traveling at 45 miles per hour, but it fluctuated as he's trying to
      elude me and I'm trying to catch that. And I base that on an average of
      each time I looked down at the speedometer.
      [Prosecutor]: At what moment and what precise location, if you can
      estimate, did you tum on and activate both your audible and visual sirens
      on your vehicle?
      [Sergeant Vigesaa]: I ... immediately noticed he was trying to elude. I
      initially hit my emergency lights, and I knew at this point that he was trying
      to get away. And at that point, I activated my siren with my emergency
      lights.

RP at 140. No objection was raised to any of the noted testimony.

      Mr. Fowler testified in his own defense that he had fled from Sergeant Vigesaa at

the urging of his passenger, Ms. Haley, who had outstanding arrest warrants. In closing

argument, defense counsel conceded the eluding charge in order to argue for acquittal on

the two firearms counts:

      There are facts in this case that are just not in dispute. There are elements,
      as [the prosecutor] eloquently went through, that have been proven by the

                                             3
No. 34528-9-111
State v. Fowler


      state beyond a reasonable doubt. Mr. Fowler, in his Yukon with his
      girlfriend, felony warrant next to him, at some point, one or both see
      Sergeant Vigesaa. They decide, Nope, warrant. Go, run. They do.
              They take off for a few blocks, go into a parking lot, stop. He was
      driving with a suspended license, but he didn't have a warrant, but he was
      clearly trying to get away. Yeah, he was eluding. He was attempting to,
      anyway; no question about that. It's not in dispute.
              What else isn't in dispute? Well, he is a convicted felon. We know
      that. We've talked about it already. He's been convicted of three forgeries.
      You heard his testimony on the stand. He pled guilty to those. Why? He
      said he did it. He didn't take those to trial, but here he is in trial today.
      And again, it's not because of the elude. He's already admitted to that on
      the stand. The state's right. He did that. But here's what's not clear, and
      here's what he didn't do. He didn't possess a firearm; and even if he did,
      he sure didn't know it was stolen.

RP at 293-294. Counsel also argued:

              There was some mention in the state's first closing about reckless
      driving. It is part of attempt to elude. I think there is some question as to
      how reckless the driving was, but again, Mr. Fowler said he was trying to
      get away, that he was traveling over the speed limit. I think there's some
      question of how many people were wherever.
              You also heard Sergeant Vigesaa testify that, Yeah, sometimes we
      actually end pursuit if it's too dangerous. Well, he didn't do that here. But
      as I already said, Mr. Fowler admitted to eluding. That's something that's
      not in dispute. The elements are satisfied by the state there, but they're not
      satisfied with respect to possession of the firearm because he didn't have it.

RP at 302.

      The court instructed the jury on the elements of attempting to elude:

      [E]ach of the following elements of the crime must be proved beyond a
      reasonable doubt:
             1) That on or about September 5th, 2014, the defendant drove a
      motor vehicle;
             2) That the defendant was signaled to stop by a uniformed police
      officer by hand, voice, emergency light, or siren;

                                            4
No. 34528-9-III
State v. Fowler


               3) That the signaling police officer's vehicle was equipped with
       lights and siren;
               4) That the defendant willfully failed or refused to immediately
       bring the vehicle to a stop after being signaled to stop;
               5) That while attempting to elude a pursuing police vehicle, the
       defendant drove his vehicle in a manner indicating a reckless manner; and
               6) That the acts occurred in the state of Washington.

Clerk's Papers (CP) at 95 (emphasis added). The definitional instruction told the jury

that the offense required proof that the vehicle was driven "in a reckless manner." CP at

94 (Instruction 7). There were no objections to these instructions.

       The jury convicted on the eluding and unlawful possession counts, but acquitted

on the stolen firearm charge. After the court imposed a standard range sentence, Mr.

Fowler appealed to this court. A panel considered the matter without argument.

                                       ANALYSIS

       This appeal raises two arguments. First, we briefly consider Mr. Fowler's

contention that Sergeant Vigesaa improperly expressed an opinion by repeated use of the

word "elude." We then consider whether the elements instruction prejudiced Mr.

Fowler's trial.

       Testimony

       Mr. Fowler argues that the repeated use of the word "elude" during the testimony

of the officer constituted improper opinion testimony. Without deciding that issue, it is

clear that any error was not manifest and was completely harmless in light of the

defendant's own testimony and the concession that the elements were established.

                                            5
No. 34528-9-111
State v. Fowler


       Witnesses are not permitted to opine as to the guilt of the defendant. State v.

Black, 109 Wn.2d 336,348,745 P.2d 12 (1987). 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 claiming the existence of manifest

constitutional error 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.

Scott, 110 Wn.2d 682,687-688,757 P.2d 492 (1988); State v. Kirkman, 159 Wn.2d 918,

934-935,155 P.3d 125 (2007). 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.




                                               6
No. 34528-9-111
State v. Fowler


       The word "elude" is a synonym for "evade" or "escape."2 Given the name of the

crime of attempting to elude, as well as its elements, we recommend that officers avoid

use of the word "elude" when describing flight or other evasive behavior. But, even if

the .officer erred here, any error was not meaningful in light of the defense theory of the

case. The defendant himself admitted he was trying to evade the officer in order to allow

his passenger to escape capture. Defense counsel agreed with that factual position in his

closing argument and used it to ask the jury to hold his client accountable for the offense

he agreed he had committed (the eluding) while acquitting him on the (more serious)

firearm charges. That approach proved successful in part.

       Under these circumstances, Mr. Fowler cannot show that he was prejudiced by the

officer's testimony. Accordingly, he has not established that manifest constitutional error

occurred. We therefore decline to further consider this claim.

       Jury Instruction

       Mr. Fowler also argues that the elements instruction was constitutionally

defective. We again conclude that, despite the extraneous verbiage in the instruction, he

has not established manifest constitutional error.




       2
        Webster's Third New International Dictionary at 738, in part, recognizes modern
meanings for the word as including: 2 : to avoid slyly or adroitly (as by artifice,
stratagem, or dexterity) : EVADE 3 : to escape the notice or perception; syn see ESCAPE.

                                             7
No. 34528-9-111
State v. Fowler


       A challenge on appeal to a jury instruction that was not challenged in the trial

court is treated similarly to the evidentiary issue previously discussed. Only if the

alleged instructional error raises a question of manifest constitutional error is the claim

reviewable under RAP 2.5(a). Scott, 110 Wn.2d at 687-688. Again, he has not met the

burden of establishing prejudicial error that makes his claim manifest.

       The eluding statute currently prohibits driving "in a reckless manner" while

fleeing a police officer. RCW 46.61.024. Prior to its amendment in 2003, the eluding

statute had prohibited driving in a "manner indicating a wanton or wilful disregard for the

lives or property of others." Former RCW 46.61.024 (2002). The instruction used in this

case grafted on the "manner indicating" language of the former statute to the current

"reckless manner" standard. Mr. Fowler argues that by doing so, the instruction altered

the elements so that the State needed to only prove the appearance of driving in a reckless

manner rather than that he had actually driven in a reckless manner.

       Although the language is erroneous, we disagree that "indicating" means what Mr.

Fowler says that it means. That particular verb has many meanings, including to show,

demonstrate, or to point out.3 While the language of this hybrid instruction is strange and

erroneous, it did not necessarily dilute the prosecutor's burden of proof. Instruction 7




       3
           Id. at 1150.

                                              8
No. 34528-9-III
State v. Fowler


properly defined the crime for the jury, making it unlikely that the elements instruction

would be read as Mr. Fowler suggests.

       However, the error is not manifest for the same reasons that the officer's testimony

did not constitute manifest constitutional error. Defense counsel agreed that the elements

of the crime were established and argued that point to the jury as part of the defense

strategy for acquittal on the greater crimes. Having conceded this offense to the jury, Mr.

Fowler simply does not have a colorable claim of manifest constitutional error from the

inapt wording of this instruction.

       The convictions are affirmed.

       A majority of the panel has determined this opinion will not be printed in the

Washington Appellate Reports, but it will be filed for public record pursuant to RCW

2.06.040.




WE CONCUR:



               ,Y

       Lawrence-Berrey,




                                             9
