                                                           FILED
                                                       DECEMBER 13, 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. 35457-1-III
                                               )
                     Respondent,               )
                                               )
       v.                                      )           UNPUBLISHED OPINION
                                               )
SHAUN PAUL DAVIS,                              )
                                               )
                     Appellant.                )

       PENNELL, J. — Shaun Paul Davis appeals his conviction for attempting to elude

a police vehicle and related sentence enhancement. We affirm Mr. Davis’s conviction,

but remand for correction of a scrivener’s error and to strike certain legal financial

obligations made inapplicable by recent statutory amendments.

                                          FACTS

       On September 2, 2015, just after 6:00 p.m., Washington State Patrol Trooper

Douglas Power was on duty and parked on Third Avenue near Lee Street in Spokane.
No. 35457-1-III
State v. Davis


Trooper Power’s attention was drawn to a motorcycle driving east on Third Avenue,

because the motorcycle did not have mirrors. The driver of this motorcycle was later

identified as Shaun Davis. Trooper Power began following the motorcycle in his patrol

car. Trooper Power activated his emergency lights but the motorcycle continued driving,

so Trooper Power activated the patrol car’s siren. Mr. Davis looked back at Trooper

Power, then turned forward, lowered his head and accelerated. Trooper Power advised

communications that a motorcycle was running from him.

       Mr. Davis turned right onto Thor Street, maneuvering around cars and cutting

through traffic, and then drove into a gas station parking lot at the corner of the

intersection. Mr. Davis then drove through an alley next to the gas station and

continued on Third Avenue, but failed to stop at a stop sign when making a right turn.

When Mr. Davis reached Freya Street, he slowed down and continued to drive through

a red light even though other cars were present. Trooper Power paused, with his lights

and siren still on, before he drove through the red light to ensure traffic was clear.

He continued to pursue as Mr. Davis drove through another stop sign at Havana Street.

       At this point, Third Avenue curves and turns into Fourth Avenue while it continues

parallel to the freeway. During this time, Trooper Power estimated the speed of the

motorcycle to be 80 miles per hour (m.p.h.), which is 50 m.p.h. over the posted speed


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No. 35457-1-III
State v. Davis


limit. Other cars on the road began pulling off onto the shoulder as Mr. Davis continued

through this area.

       Trooper Power noticed as Mr. Davis approached Sherman Avenue that he drove

into the oncoming lane and looked back at Trooper Power. Then Mr. Davis drove

through another stop sign and turned right onto another road. Trooper Power noticed

that Mr. Davis was “wobbling the turn,” and slowing down prior to turning, which

gave him the impression that Mr. Davis was an inexperienced motorcyclist. 1 Report of

Proceedings (May 9, 2017) at 84.

       Trooper Power continued to pursue Mr. Davis as he drove up to Eighth Avenue

where he made another right turn without stopping at the stop sign. Trooper Power noted

there was slightly more traffic on Eighth Avenue, and that it had hills that limited

visibility in places. Mr. Davis began passing traffic by crossing over the double-yellow

divider and driving in the oncoming lane. However, Trooper Power advised

communications that Mr. Davis was passing in a no-passing zone “in a safe manner, not

really endangering too many people at [that] time.” Id. at 85. Trooper Power also stated

that Mr. Davis’s driving speeds were excessive and that passing in a no-passing zone in

an area with limited visibility meant unsuspecting motorists may not see what was coming

at them.


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No. 35457-1-III
State v. Davis


       Then Mr. Davis turned onto a residential street and quickly accelerated. At the

end of this street, Mr. Davis circled back onto Fourth Avenue and continued on even

though Fourth Avenue turned into a one-way street. Trooper Power continued to pursue

Mr. Davis until Fourth Avenue became a one-way street which, for safety reasons, forced

Trooper Power to terminate his pursuit. Trooper Power stated that traveling down the

one-way street, which was eastbound, in the wrong direction, as Mr. Davis was doing,

was dangerous to himself, Mr. Davis, and other cars and motorists on the street since

Fourth Avenue turned into a “one-lane, one-way street,” with “no shoulder, . . . no second

lanes, [and] no place to go for” oncoming traffic. Id. at 87.

       Spokane County Sheriff’s Deputy James Wang heard about the pursuit over his

radio and located Mr. Davis around 6:12 p.m. as Mr. Davis was driving the wrong way on

Third Avenue, a one-way street. Deputy Wang activated his vehicle’s lights and sirens

and attempted to stop Mr. Davis. Mr. Davis looked back at Deputy Wang and

then accelerated. Multiple cars approached Mr. Davis and Deputy Wang, which led to

Mr. Davis driving on the shoulder of the road to avoid hitting them. Deputy Wang

ultimately terminated his pursuit of Mr. Davis due to safety concerns.

       Spokane Police Officer Jeremey Howe also heard about the pursuit of Mr. Davis

over his radio and intercepted Mr. Davis near the intersection of Fancher Road and Third


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No. 35457-1-III
State v. Davis


Avenue. Officer Howe ended up chasing Mr. Davis on foot, which Trooper Power

witnessed. Trooper Power accelerated down the road in his patrol car and cut Mr. Davis

off in a parking lot, after which Mr. Davis was arrested. The total pursuit covered about

6.1 miles of roadway, occurred during rush hour on a weeknight, and lasted about 11

minutes.

       The State charged Mr. Davis with possession of a stolen motor vehicle, attempting

to elude a police vehicle, and first degree driving while license suspended or revoked.

Mr. Davis was alleged to have eluded “a uniformed law enforcement officer with the

Washington State Patrol.” Clerk’s Papers (CP) at 140. The eluding count also alleged a

sentencing enhancement, or aggravating circumstance, in that when Mr. Davis committed

the crime, “one or more persons, other than [Mr. Davis] or the pursuing law enforcement

officer, were threatened with physical injury or harm by the actions of [Mr. Davis] under

the provisions of RCW 9.94A.834.” Id.

       The case proceeded to a jury trial and the witnesses testified consistent with the

facts described above. Mr. Davis’s defense was that he was not the individual who had

been operating the motorcycle. Consistent with this defense, Mr. Davis did not cross-

examine Trooper Power about what happened during the motorcycle pursuit. Deputy

Wang was also not cross-examined by Mr. Davis.


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No. 35457-1-III
State v. Davis


       The jury instructions included a reasonable doubt pattern criminal jury instruction.

CP at 152; 11 WASHINGTON PRACTICE: WASHINGTON PATTERN JURY INSTRUCTIONS:

CRIMINAL 4.01, at 93 (4th ed. 2016) (WPIC). Also included with the instructions was a

special verdict form directing the jury to answer “yes” or “no” to the following question

should it find Mr. Davis guilty of eluding: “Was any person, other than SHAUN DAVIS

or a pursuing law enforcement officer, threatened with physical injury or harm by the

actions of SHAUN DAVIS during his commission of the crime of attempting to elude a

police vehicle?” CP at 171, 175. The language of the special verdict form was taken

from WPIC 190.12. However, contrary to the note on use accompanying WPIC 190.12,

the trial court did not instruct the jury pursuant to WPIC 160.00 that the State needed to

prove the facts alleged in the special verdict form beyond a reasonable doubt. Mr. Davis

did not object to the court’s instructions.

       At the end of trial, the jury found Mr. Davis not guilty of possession of a

stolen motor vehicle, but guilty of attempting to elude a police vehicle, with the

endangerment sentencing enhancement, and first degree driving while license suspended

or revoked. The jury returned its verdicts on May 10, 2017. The trial court sentenced

Mr. Davis to 37.5 months and 1 day of confinement and imposed only mandatory costs,




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No. 35457-1-III
State v. Davis


including a $500 victim assessment, a $200 criminal filing fee, and a $100 DNA

(deoxyribonucleic acid) collection fee.

       Mr. Davis appeals.

                                          ANALYSIS

Sufficiency of the evidence—endangerment sentencing enhancement

       Mr. Davis argues insufficient evidence supports the endangerment sentencing

enhancement because Trooper Power’s testimony and the dash cam video recording from

his patrol car does not show that anyone else was endangered or threatened by Mr.

Davis’s actions while he was attempting to elude Trooper Power. Mr. Davis also

contends that because the information only alleged the involvement of an officer with the

Washington State Patrol, the testimony of law enforcement officers from other agencies

should not be considered since they were not officers with the Washington State Patrol.

       This court reviews a jury’s special verdict finding under the sufficiency of the

evidence standard. State v. Stubbs, 170 Wn.2d 117, 123, 240 P.3d 143 (2010). In doing

so, we view the evidence in the light most favorable to the State and assess whether any

rational trier of fact could have found the relevant facts proved beyond a reasonable

doubt. See State v. Yates, 161 Wn.2d 714, 752, 168 P.3d 359 (2007), abrogated on other

grounds by State v. Gregory, __ Wn.2d __, 427 P.3d 621 (2018).


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No. 35457-1-III
State v. Davis


       Initially, Mr. Davis claims we should limit our sufficiency analysis to Trooper

Power’s testimony because the charging document specified that Mr. Davis had failed to

bring his vehicle to a stop as signaled “by a uniformed law enforcement officer with the

Washington State Patrol.” CP at 140 (emphasis added). Trooper Power was the only

state patrol officer involved in Mr. Davis’s pursuit. Thus, Mr. Davis claims the State was

obliged to prove Mr. Davis’s offense conduct, including the conduct pertinent to his

sentence enhancement, occurred during the pursuit by Trooper Power.

       We disagree with Mr. Davis’s narrow reading of the State’s case. The language

in the information that gives rise to Mr. Davis’s challenge was a surplus allegation,

unnecessary to prove the crime charged. Mr. Davis did not make any variance or

surplusage objections at trial. Nor does he claim prejudice on appeal. Given these

circumstances, Mr. Davis is not entitled to relief based on an improper variance. State v.

Tvedt, 153 Wn.2d 705, 718, 107 P.3d 728 (2005) (“[W]here unnecessary language is

included in an information, the surplus language is not an element of the crime that must

be proved unless it is repeated in the jury instructions.”); State v. Tharp, 42 Wn.2d 494,

497, 256 P.2d 482 (1953) (“[N]o question of variance was raised in the trial court, and it

cannot be raised successfully for the first time on appeal.”).




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No. 35457-1-III
State v. Davis


      Looking at the substance of Mr. Davis’s challenge, the State was required to prove

beyond a reasonable doubt that “one or more persons,” other than Mr. Davis or the

pursuing law enforcement officers, were “threatened with physical injury or harm” by

Mr. Davis’s eluding offense. RCW 9.94A.834. Sufficient evidence supports the jury’s

conclusion that the State met this burden. The most compelling testimony came from

Deputy Wang. According to Deputy Wang, he encountered Mr. Davis’s motorcycle as it

was accelerating up a one-way street in the wrong direction. The applicable speed limit

was 35 m.p.h. and Deputy Wang had to travel at 50 m.p.h. in his attempt to catch up to

Mr. Davis. Initially, Deputy Wang did not observe any traffic on the one-way street. But

that changed. A “[b]unch of cars started coming around the curve and coming” toward

Mr. Davis and Deputy Wang. RP at 121. Mr. Davis “actually had to bail out onto the

shoulder to avoid hitting some cars.” Id. Deputy Wang then terminated pursuit for the

safety of the public and Mr. Davis. Deputy Wang’s testimony alone was sufficient to

justify Mr. Davis’s endangerment enhancement.

Jury instruction—endangerment sentencing enhancement

      Mr. Davis argues the court’s instruction for the endangerment sentencing

enhancement was defective because it did not require the State to prove endangerment




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No. 35457-1-III
State v. Davis


beyond a reasonable doubt. Mr. Davis also contends that this was a structural error,

requiring reversal regardless of prejudice.

       Mr. Davis’s criticism of the trial court’s instruction is well taken. The court’s

instructions did not specify that the State had to prove the endangerment enhancement

beyond a reasonable doubt. Consistent with the suggestion set by WPIC 190.12, the trial

court should have instructed the jury that the State retained the “beyond a reasonable

doubt” standard of proof with respect to the enhancement. See State v. Tongate,

93 Wn.2d 751, 754, 613 P.2d 121 (1980). This easily could have been accomplished by

issuing an instruction consistent with WPIC 160.00. The trial court’s failure to provide

an instruction clarifying the burden of proof as to the endangerment sentencing

enhancement was error.

       While we agree with Mr. Davis about the existence of error, we disagree with his

assessment of the nature of that error. Mr. Davis claims the flaw in the trial court’s

instructions was a structural error, requiring reversal without an assessment of prejudice.

Binding precedent compels us to disagree.

       The Supreme Court rejected a structural error argument similar to Mr. Davis’s in

State v. Fowler, 114 Wn.2d 59, 785 P.2d 808 (1990), disapproved of on other grounds by

State v. Blair, 117 Wn.2d 479, 816 P.2d 718 (1991). Fowler involved a deadly weapon


                                              10
No. 35457-1-III
State v. Davis


enhancement. The court held that where no reasonable doubt instruction is provided at all

to the jury, such error is reversible per se. Id. at 64. However, “in cases where the jury is

instructed at least once on the State’s burden of proof in a criminal case, the omission of

further instruction where required [for a sentencing enhancement special verdict] shall be

analyzed by looking at whether the error was harmless beyond a reasonable doubt.” Id.

       Here, Mr. Davis’s jury received a reasonable doubt instruction. There were no

other instructions addressing the nature of the State’s burden of proof. Thus, Fowler

dictates that structural error does not apply. Instead, we assess whether the trial court’s

failure to provide a reasonable doubt instruction in the context of the endangerment

sentencing enhancement was harmless beyond a reasonable doubt.

       We find the instructional error harmless. At trial, the State presented uncontested

evidence that Mr. Davis operated his motorcycle in a manner that presented a danger to

the public. Given this circumstance and the nature of Mr. Davis’s defense, an additional

instruction clarifying the nature of the State’s burden of proof was not apt to change the

outcome of trial. See id. at 65 (Where undisputed evidence supported the finding that the

defendant was armed with a deadly weapon, omission of a reasonable doubt instruction

specifically on the deadly weapon charge was harmless beyond a reasonable doubt.).

       Mr. Davis’s endangerment sentencing enhancement is therefore affirmed.


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No. 35457-1-III
State v. Davis


Scrivener’s error

       Mr. Davis argues, and the State concedes, that there is a scrivener’s error in the

judgment and sentence for his first degree driving while license suspended or revoked

conviction. The judgment and sentence incorrectly states that Mr. Davis was found guilty

on June 20, 2017, even though he was actually found guilty on May 10, 2017. Because

Mr. Davis was found guilty on May 10, rather than on June 10, of first degree driving

with a suspended or revoked license, remand is appropriate to correct this error. State v.

Healy, 157 Wn. App. 502, 516, 237 P.3d 360 (2010); In re Pers. Restraint of Mayer,

128 Wn. App. 694, 701-02, 117 P.3d 353 (2005) (The remedy for a clerical or scrivener’s

error in the judgment and sentence is remand to the trial court for correction.).

           STATEMENT OF ADDITIONAL GROUNDS FOR REVIEW

       Mr. Davis has filed a statement of additional grounds for review raising one

claim. He asks whether there was ineffective assistance of counsel when the jury was

allowed to see Mr. Davis’s criminal record by means of his driving record. Mr. Davis’s

vague assignment of error is insufficient to inform the court of the nature and occurrence

of his claimed error. We therefore decline review. RAP 10.10(c).




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No. 35457-1-III
State v. Davis


            MOTION TO STRIKE FEES ASSESSED BY TRIAL COURT

       Citing State v. Ramirez, __ Wn.2d __, 426 P.3d 714 (2018), Mr. Davis has moved

to strike the $200 criminal filing fee and $100 deoxyribonucleic acid (DNA) collection

fee imposed by the trial court at sentencing. Ramirez was decided after the close of

briefing in this case. The decision held that the 2018 amendments 1 to Washington’s

legal financial obligation scheme apply prospectively to cases on direct review at the

time of enactment. Of interest to Mr. Davis, the 2018 amendments prohibit imposition

of a $200 criminal filing fee on defendants who are indigent at the time of sentencing as

defined by RCW 10.101.010(3)(a)-(c). RCW 36.18.020(2)(h). Also prohibited is the

assessment of a DNA database fee if the State has previously collected the defendant’s

DNA as a result of a prior felony conviction. RCW 43.43.7541.

       The record before the court indicates Mr. Davis’s motion is controlled by

Ramirez. 2 Specifically, Mr. Davis was indigent at the time of sentencing and Mr. Davis’s

lengthy felony record indicates a DNA fee has previously been collected. Accordingly,

we grant Mr. Davis’s motion and direct the trial court to strike the $200 filing fee and

$100 DNA fee from Mr. Davis’s judgment and sentence.



       1
           LAWS OF 2018, ch. 269.
       2
           The State has not responded to Mr. Davis’s motion.

                                             13
No. 35457-1-III
State v. Davis


                                 APPELLATE COSTS

       Mr. Davis objects to imposition of appellate costs under RAP 14.2 should the

State prevail on appeal. Mr. Davis has submitted a declaration supporting his continued

indigence. The State does not question the accuracy of Mr. Davis's information or claim

there has been a change of circumstances. Accordingly, Mr. Davis's request to deny

appellate costs is granted.

                                     CONCLUSION

       The judgment of conviction is affirmed. This matter is remanded for correction of

a scrivener's error regarding Mr. Davis's conviction date and to strike the $200 filing fee

and $100 DNA collection fee. Mr. Davis's request to deny appellate costs is granted.

       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.


                                          Pennell, J.

WE CONCUR:



lAw<'V. l\ ..  ~'W\.~1 • C.' ~,
 Lawrence-Berrey, C.J.



                                            14
