                                                                                                Filed
                                                                                          Washington State
                                                                                          Court of Appeals
                                                                                           Division Two

                                                                                            May 31, 2017




    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                         DIVISION II
 STATE OF WASHINGTON,                                                No. 48795-1-II

                                Respondent,                      UNPUBLISHED OPINION

         v.

 JENNIFER L. WALKER,

                                Appellant.

       BJORGEN, C.J. — Jennifer Walker appeals her conviction for felony hit and run. She

argues that: (1) the State failed to provide sufficient evidence that she was the driver of the

vehicle involved in the hit and run, (2) she received ineffective assistance of counsel when her

counsel failed to call a witness, and (3) she received ineffective assistance of counsel when her

trial counsel failed to request a missing witness instruction.

       We hold that the State presented sufficient evidence that Walker was the driver of the

vehicle involved in the hit and run. We hold also that Walker did not receive ineffective

assistance of counsel. Consequently, we affirm the trial court.
No. 48795-1-II


                                                FACTS

        On September 17, 2015, Daniel Toste was driving his green Ford F150 pickup truck

when he was struck from behind by a Ford F2501 driven by Jennifer Walker. After the crash,

Walker approached Toste and asked him if they should exchange insurance information. Toste

told her that he had to call the police. By the time Toste finished calling 911, Walker had left the

scene without her vehicle and did not return.

        The accident occurred near the home of Jeffrey O’Brien-Wile, who arrived at the scene

almost immediately after the trucks collided. About 15 minutes after the crash, police arrived

and spoke with several individuals, including John Ortmann, who told police that he was the

passenger in the F250 and that Walker had been driving the F250 at the time of the accident.

        On October 2, 2015, the State filed an amended information charging Walker with one

count of felony hit and run. At trial on January 28, 2016, the State called O’Brien-Wile, who

testified as follows:

        [Witness]:             I walked outside and saw a woman and a man in a truck, the
                               woman was driving. They had hit a green Ford pickup and
                               knocked him into my yard, kind of, and I waved them in and
                               made sure they were okay, and then went over and checked
                               on the other vehicle. When I came back, the woman was
                               gone.




1
  This vehicle is alternatively referred to as the “blue Ford pickup” at different points in the
record. Verbatim Report of Proceedings (VRP) at 183.

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No. 48795-1-II


                             ....
       [Prosecutor]:         And in the [F250] Ford pickup—
       [Witness]:            Yeah.
       [Prosecutor]:         —that was in your driveway, who was in the driver’s side?
       [Witness]:            The older Ford pickup?2
       [Prosecutor]:         Yes, the older Ford pickup.
       [Witness]:            Yeah, the woman.
       [Prosecutor]:         Okay. And based on your recollection, is she present here in
                             the courtroom today?
       [Witness]:            Yes
       [Prosecutor]:         Can you please describe what she’s wearing?
       [Witness]:            A black dress—black blouse.
                             [Prosecutor]: Your Honor, please let the record reflect that
                             the witness has identified the Respondent (sic)—or excuse me, the
                             Defendant in this matter.

Verbatim Report of Proceedings (VRP) at 147, 149-50.

       The State also called Toste as a witness, who stated:

       [Witness]:            The truck behind me—or the truck that hit me landed into
                             the driveway behind me. . . . I looked to my right, and the
                             truck was sittin’ in the driveway, and at that point I didn’t
                             know exactly what was going on, I was in kind of shock, but
                             I looked over and I saw a lady—
       [Prosecutor]:         Go ahead, finish.
       [Witness]:            —I saw a lady exit the Ford F250.
                             ....
       [Prosecutor]:         Did anybody ever approach you in your vehicle?
       [Witness]:            The only person that approached me—my vehicle after the
                             accident was Jennifer Walker.
       [Prosecutor]:         Okay. Is she present in the courtroom today?
       [Witness]:            Yes, she is.
                             ....
                             [Prosecutor]: Your Honor, please let the record reflect that
                             the witness has identified the Defendant in this matter.
                             ....
       [Prosecutor]:         Did [Walker] ever say she was the driver, or explain or talk
                             about the brakes or anything like that?



2
 In contrast to the “green, newer [F150] Ford pickup” that O’Brien-Wile testified was driven by
Toste. VRP at 148.

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No. 48795-1-II


       [Witness]:             She did say something to the effect that what caused the
                              accident was something—a problem with the brakes, or
                              whatever.

VRP at 166, 168-69, 176.

       Additionally, the State called Officer Brad Gillaspie of the City of Woodland Police

Department, who testified as follows:

       [Prosecutor]:          Did you speak with anyone after you arrived [at the scene of
                              the accident]?
       [Witness]:             Yes, I spoke to several people.
       [Prosecutor]:          All right. Do you recall who you spoke to?
       [Witness]:             Yes.
       [Prosecutor]:          Can you please tell me their names?
       [Witness]:             One would be Jeff [O’Brien-]Wile, which was the – told me
                              that he was the witness. The blue truck was actually parked
                              in his driveway. I talked to Mr. Toste, who was the driver
                              of the green Ford pickup, and then there was another
                              individual that was affiliated with the blue Ford pickup, last
                              name of Ortman[n].
                              ....
       [Defense]:             Is it safe to assume that the two that had told you the name
                              of Jennifer Walker, could possibly have been Mr.
                              Ortman[n], whose license was suspended, or Mr. Keen, who
                              was the registered owner of the vehicle?
       [Witness]:             Both Mr. Ortman[n] and Mr. [Richard] Keen told me that
                              she had been the driver of the vehicle.

VRP at 182-83, 186.

       Neither party called Ortmann as a witness at trial. Walker testified that she had been in

the F250 pickup on the day of the accident, but that she was not in the truck at the time of the

accident and that one of Ortmann’s friends, Lexi, had been driving the truck. The jury found

Walker guilty of felony hit and run and she was sentenced to four months’ confinement. Walker

appeals her conviction.




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No. 48795-1-II


                                             ANALYSIS

                                  I. SUFFICIENCY OF THE EVIDENCE

          Walker argues that the State did not offer sufficient evidence that she was the driver of

the F250 pickup. We disagree.

          In evaluating the sufficiency of the evidence, we view the evidence in the light most

favorable to the State to determine whether any rational trier of fact could have found the

elements of the crime beyond a reasonable doubt. State v. Mines, 163 Wn.2d 387, 391, 179 P.3d

835 (2008). A challenge to the sufficiency of the evidence admits the truth of the State’s

evidence. Id. We do not review credibility determinations, which are reserved for the trier of

fact. Id. In addition, we consider direct and circumstantial evidence equally reliable in

evaluating the sufficiency of the evidence. State v. Kintz, 169 Wn.2d 537, 551, 238 P.3d 470

(2010).

          Both Toste and O’Brien-Wile identified Walker as the driver of the F250. That supplies

sufficient evidence that Walker was the driver of the vehicle involved. Walker argues, though,

that this does not provide sufficient evidence that she was the driver of the F250 because

“[a]lthough Mr. Toste and Mr. O’Brien-Wile identified Ms. Walker as the driver of the F250 in

the courtroom, both witnesses had only momentary contact with her on September 17, 2015, and

did not otherwise know Ms. Walker.” Br. of Appellant at 9-10. However, the evidence does not

suggest that the witnesses’ contact was so fleeting as to compromise their identification of

Walker, and their not being acquainted with her similarly does not affect their identification. In

addition, to the extent this argument invites us to assess the credibility of Toste and O’Brien-




                                                   5
No. 48795-1-II


Wile in making their identification, we decline the invitation. We do not review credibility

determinations on appeal.

        Sufficient evidence supports the determination that Walker was the driver of the vehicle

involved.

                              II. INEFFECTIVE ASSISTANCE OF COUNSEL

A.      Standards

        To establish ineffective assistance of counsel, Walker must demonstrate that: (1) her

counsel’s performance was deficient in that it fell below an objective standard of reasonableness

under the circumstances and (2) she was prejudiced as a result of her counsel’s performance.

State v. Larios-Lopez, 156 Wn. App. 257, 262, 233 P.3d 899 (2010). A defendant is prejudiced

by counsel’s deficient performance if, but for counsel’s errors, there is a reasonable probability

that the result of the proceeding would have been different. State v. McFarland, 127 Wn.2d 322,

334-35, 899 P.2d 1251 (1995). We presume that defense counsel’s representation was effective,

and Walker must demonstrate that there was no legitimate or strategic reason for defense

counsel’s conduct. McFarland, 127 Wn.2d at 335-36. As we have previously held, “[i]n

general, the decision to call or not call a witness is a matter of legitimate trial tactics.” State v.

King, 24 Wn. App. 495, 499, 601 P.2d 982 (1979).

B.      Failure to Call Witness

        Walker asserts that her trial counsel was ineffective for failing to subpoena Ortmann and

call him as a witness in order to “rebut the initial ‘identification’” of Ms. Walker as the driver of

the F250 pickup. Br. of Appellant at 12. At trial, Officer Gillaspie testified that Ortmann had

identified Walker as the driver of the F250. Therefore, had Ortmann been called as a witness in


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No. 48795-1-II


this case, it is likely that he would have identified Walker as the driver of that vehicle. Although

Walker contends that Ortmann’s “testimony could have been challenged on any number of

reasons[,]” defense counsel would also have to weigh the possible benefit of undermining

Ortmann’s credibility against the possible harm of having another witness identify Walker as the

driver of the F250. Br. of Appellant at 13.

       Consequently, defense counsel’s decision not to call Ortmann as a witness was a matter

of legitimate trial strategy that cannot form the basis for a claim of ineffective assistance of

counsel. Additionally, it is doubtful that defense counsel would have been able to undermine

Ortmann’s credibility given that Ortmann was in the F250 with Walker when the crash occurred.

Even if defense counsel were able to successfully attack Ortmann’s credibility, Walker has not

demonstrated a reasonable probability that the outcome of the trial would have been different

because two other witnesses, including the victim, identified her as the driver of the F250. For

these reasons, defense counsel’s decision not to call Ortmann as a witness did not constitute

ineffective assistance.

C.     Missing Witness Instruction

       Walker argues that she received ineffective assistance of counsel because defense counsel

failed to request a missing witness instruction based on the State’s failure to call Ortmann as a

witness. We disagree.

       In order to establish ineffective assistance of counsel for failure to request a jury

instruction, Walker must first demonstrate that she was entitled to that jury instruction. State v.

Cienfuegos, 144 Wn.2d 222, 227, 25 P.3d 1011 (2001). Under the missing witness doctrine, a

party may highlight the absence of a “‘natural witness’” where “it appears reasonable that the


                                                  7
No. 48795-1-II


witness is under [another party’s] control or peculiarly available to [that party] and [that party]

would not have failed to produce the witness unless the testimony were unfavorable.” State v.

Montgomery, 163 Wn.2d 577, 598, 183 P.3d 267 (2008) (quoting State v. Blair, 117 Wn.2d 479,

485-86, 816 P.2d 718 (1991)). However, a court should only give a missing witness instruction

if three criteria are satisfied:

        First, the doctrine applies only if the potential testimony is material and not
        cumulative. . . . Second, the doctrine applies only if the missing witness is
        particularly under the control of [one party] rather than being equally available to
        both parties. . . . Third, the doctrine applies only if the witness’s absence is not
        satisfactorily explained.

Id. at 598-99 (citations omitted).

        In this case, Walker was not entitled to a missing witness instruction because Ortmann

was not under the particular control of the State and Ortmann’s testimony would have been

cumulative. In State v. Flora, Division One of our court determined that a civilian who

accompanied a police officer was not under the particular control of the State, adopting the trial

court’s reasoning that:

        If [the civilian] was an undersheriff or employee, a party, law enforcement officer
        something like that, that would be another matter. This is a civilian witness just
        like any other civilian witness not under the control of or peculiarly available to the
        State.

160 Wn. App. 549, 556-57, 249 P.3d 188 (2011).

        Similar to the witness in Flora, Ortmann was a civilian witness with no affiliation with

law enforcement, and therefore was not particularly available to either party. Furthermore,

Ortmann’s expected testimony, that Walker was the driver of the F250, would have been

cumulative insofar as both Toste and O’Brien-Wile identified Walker as the driver of the F250.



                                                  8
No. 48795-1-II


        Because Ortmann was not particularly available to the State and his testimony would

have been cumulative, Walker has not demonstrated that she was entitled to a missing witness

jury instruction. Therefore, defense counsel’s failure to request a missing witness instruction did

not constitute ineffective assistance.

        We affirm the trial court.

        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.



                                                     BJORGEN, C.J.
 We concur:



 WORSWICK, J.




 LEE, J.




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