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      IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                                         DIVISION II
                                                                                                                  101114
STATE OF WASHINGTON,                                                                  No. 44512 -3 -II


                                            Respondent,                        UNPUBLISHED OPINION


         v.



STEVEN SMITH,


                                            Appellant.



         BJORGEN, J.—             Steven Smith appeals his conviction and sentence for felony driving under

the   influence ( DUI).             We affirm his conviction, but reverse his sentence and remand for

                    l
resentencing.


                                                              FACTS


         On the afternoon of June 12, 2012, Carolyn Cole was in her car with her husband Chester

Cole.    While stopped at a stop sign, she observed a white pickup truck coining directly at the

front   of   the   car.    The   white   pickup truck hit the Coles'     car   head   on.   Smith was identified as the


driver of the white pickup truck.

          Officer Mark Hinton of the Shelton Police Department responded to the scene of the


accident. When Hinton contacted Smith, he observed that Smith exhibited a flushed face,




1
    A commissioner of this court initially considered this appeal as a motion on the merits under
RAP 18. 14         and    then   referred   it to   a panel of judges.
No. 44512 -3 - II



delayed   responses, and      delayed     actions.   Hinton also smelled the odor of intoxicants on Smith' s


breath   and observed a six -
                            pack of         beer inside    of   Smith'     s car.   One of the beers was open and a


    good amount" of the      beer had been    consumed.      1 Report of Proceedings ( RP) at 66.


         Hinton asked Smith to perform standardized field sobriety tests, but Smith refused.

Hinton then placed Smith under arrest for DUI and transported him to Mason County Jail.

Hinton advised Smith of his rights and read Smith the implied consent warnings regarding breath

alcohol concentration       tests.   Smith refused the breath test.

                                                                  2
          The State   charged    Smith     with   felony   DUI.       A jury trial began on January 29, 2013, at

which    Carolyn Cole testified to the            circumstances       of   the accident.   The "State also presented


evidence establishing that Smith had four prior DUI convictions.

          Officer Hinton testified regarding his DUI investigation. Hinton testified that Smith did


not make any statements to him regarding the circumstances leading to the collision. Hinton also

testified that he had no recollection of observing a dog at the scene of the accident and that there

was no notation     in his   computer -aided      dispatch log3 that he had called animal control or that any


animals weretransported to the pound.


          Smith testified at trial that he bought beer at the Airport Grocery approximately three

minutes    prior   to the    collision.    Before leaving the grocery, Smith opened a beer and drank

approximately two -thirds to three -quarters of it. He explained that he also had his wife' s dog in

the car at the time. According to Smith, the dog jumped into his lap while he was going through



2
  Smith was also charged with one count of first degree driving while license suspended or
revoked and one count of operating a vehicle without an ignition interlock device. Prior to trial,
Smith pleaded guilty to both counts and neither count is the subject of this appeal.
3
    The dispatch log is an electronic log of the officers' activities.
                                                            2
No. 44512 -3 -II



the intersection causing               him to      swerve    into the Coles'        car.    Smith testified that he was not


impaired        at   the time of the      accident.      Smith called Sergeant Virgil Pentz of the Shelton Police


Department to           testify.   Pentz testified that he did not recall the DUI investigation, but he had


documentation that he impounded a dog belonging to Smith with animal control on June 12,

2012.


           The       jury   found Smith guilty          of   felony     DUI.    The trial court sentenced Smith to 55. 5


months'        confinement on          the DUI      charge.       The trial court also sentenced Smith to 12 months'


community custody               with   the      notation "   up to the statutory      maximum          of   60   months."         Clerk' s


Papers ( CP) at 8. As a condition of the community custody, the trial court ordered that:

               Smith]   shall   have    a ...      chemical      dependency ...       evaluation within 30 days of
           release      from custody,            provide     a   copy    of   the   evaluation    to   the [ community

           corrections'         officer]        CCO,     successfully         participate    in   and       complete        all


           recommended treatment, and sign all releases necessary to ensure that the CCO
           can consult with the treatment provider to monitor progress and compliance[.]


CP   at   17. Smith appeals his conviction and sentence.


                                                                 ANALYSIS


           Smithchallenges his conviction, arguing that there Was insufficient evidence to support

the jury' s verdict. He also challenges his sentence. Specifically, Smith argues that ( 1) the trial

court improperly ordered him to engage in a chemical dependency evaluation, and ( 2) the trial

court improperly imposed community custody. We affirm Smith' s conviction and the portion of

his sentence ordering a chemical dependency evaluation. The State concedes that the trial court

erred     in   imposing      community custody. We                agree, reverse    Smith'   s sentence as       to the term      of
No. 44512 -3 - II



community custody and remand for the trial court to reduce the term of community custody so

that it, together with his sentence of confinement, does not exceed the statutory maximum of 60

months.



                                              I. SUFFICIENCY OF THE EVIDENCE


          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.2d 192, 201, 829 P. 2d 1068 ( 1992). "                          A claim of insufficiency admits

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

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


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


substitute our          judgment for that      of   the   jury. State v. Green, 94 Wn.2d 216, 221, 616 P. 2d 628

 1980).       Instead, because the jurors observed the witnesses testify firsthand, we defer to the

jury' s   resolution        of    conflicting testimony,             evaluation     of    witness    credibility, and decisions


regarding the           persuasiveness and      the     appropriate weight          to be   given    the   evidence.   See State v.


Walton,,64 Wn. App. 410 415 -16, 824 P.2d 533 ( 1-992) —

             To convict Smith of felony DUI, the State had to prove that on June 12, 2012, Smith

drove a vehicle under the influence of or affected by intoxicating liquor, that Smith had four or

more prior DUI convictions within 10 years, and that the driving occurred in the State of

Washington. RCW 46. 61. 502( 1)(                c), (   6)(   a).   A person is under the influence of or affected by the

use of intoxicating liquor if " ability to handle an automobile was lessened in an appreciable
                              the

degree       by   the   consumption of       intoxicants       or   drugs." State    v.   Wilhelm, 78 Wn.      App.    188, 193,
No. 44512 -3 - II



896 P. 2d 105 ( 1995).


           Smith challenges the sufficiency of the evidence that he was under the influence of or

affected by intoxicating liquor. Specifically, Smith argues that the State failed to present

evidence establishing that he was intoxicated, particularly due to the lack of field sobriety tests

and breath test results. Further, Smith argues that his driving was not affected by intoxicating

liquor because the collision was caused by the dog jumping in his lap, not by his recent drinking.

Because Smith' s arguments necessarily require us to reweigh the evidence, review the jury' s

credibility determinations, and reject reasonable inferences that are favorable to the jury' s

verdict, his arguments must fail.


           Here, the State presented evidence that Hinton observed signs of intoxication on Smith


including        a   flushed face, delayed           reactions,       and   the   odor of   intoxicants.    The most reasonable


inference, favorable to the State, from Smith' s refusal to take field sobriety tests or a breath test

is that he refused the tests because he was intoxicated. In addition, Smith admitted to consuming

over   half      a       can   of   beer in   one   or   two   sips   directly     before the   accident.    Ultimately, Smith' s

driving resulted in a head -on collisionWith a Vehicle stopped at a stop sign on the opposite side

of   the   road.          Rejecting Smith' s explanation that the dog caused the accident rather than the

alcohol     is       a   credibility determination for the             jury,      not us.   There was sufficient evidence to


support the jury' s verdict.

                                                               II. SENTENCE


           Smith          challenges     his   sentence on      two    grounds.       First, Smith argues that the trial court


lacked statutory authority to order him to engage in a chemical dependency evaluation. Second,




                                                                        5
No. 44512 -3 -II



he argues that the trial court erred by imposing a term of community custody that could result in

a sentence     longer than the statutory        maximum.        The State concedes that the trial court erred by

imposing    the term of community custody. -               We affirm the trial court' s order requiring Smith to

engage in a chemical dependency evaluation and reverse the erroneous term of community

custody.


          Smith      argues    that   under   RCW 9. 94A. 607( 1)        the trial court was required to make a


specific finding that a chemical dependency contributed to Smith' s offense before it could order
                                              4
a   chemical       dependency      evaluation.         RCW 9. 94A. 607( 1),        however, is not the only statute

requiring this       sort of evaluation.       Under RCW 9. 94A.703( 4)( b)( i) " the court shall require the


offender to complete a diagnostic evaluation by an alcohol or drug dependency agency" if the

offender committed an alcohol or              drug -
                                                   related    traffic   offense.    DUI is specifically defined as an

alcohol    or .   drug -related   traffic   offense.     RCW 9. 94A.703( 4)( b)( ii).      Therefore, the trial court


properly ordered Smith to engage in a chemical dependency evaluation.

          Smith also argues that the trial court erred by imposing 12 months of community custody,

which   combined        with          sentence of - 5..5 months of confinement could impose a term longer
                                                  5


than the statutory maximum of 60 months. RCW 9. 94A.701( 9) requires that the trial court




4 RCW 9.94A.607( 1) provides:
      Where the court finds that the offender has a chemical dependency that has
          contributed to his or her offense, the court may, as a condition of the sentence and
          subject to available resources, order the offender to participate in rehabilitative
          programs or otherwise to perform affirmative conduct reasonably related to the
          circumstances of the crime for which the offender has been convicted and
          reasonably necessary or beneficial to the offender and the community in
          rehabilitating the offender.

                                                               6
No. 44512 -3 -II



reduce or eliminate the term of community custody " whenever an offender' s standard range term

of confinement in combination with the term of community custody exceeds the statutory

maximum[.]"       The State properly concedes that the term of community custody imposed was

erroneous.   Accordingly, we reverse Smith' s sentence as to the term of community custody and

remand for the trial court to reduce the term of community custody so that it, together with his

sentence of confinement, does not exceed the statutory maximum of 60 months.

        We affirm his conviction, but reverse his sentence and remand for resentencing.

        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

2. 06. 040, it is so ordered.




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