                                                                         FILED
                                                                       April 7, 2016
                                                               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. 33098-2-111
                    Respondent,              )
                                             )
      v.                                     )
                                             )
ANDREW JACKSON GILBERT, JR,                  )        UNPUBLISHED OPINION
                                             )
                    Appellant.               )

      KORSMO, J. -Andrew Gilbert appeals his conviction for attempting to elude and

second degree vehicle prowling, arguing that the eluding charge should be dismissed.

Distinguishing the case he relies upon, we affirm.

                                         FACTS

      In the late evening of August 26, 2014, a Moses Lake police sergeant chased, but

was unable to apprehend, a motorcycle containing two people. The sergeant broke off

pursuit when the motorcycle drove at high speed through a residential area. About two

hours later, a man call 911 to report that someone was in his pickup truck while another

person waited nearby on a motorcycle. An officer responded to the location and saw the

two men. They got on the motorcycle and fled with the officer giving chase.
No. 33098-2-111
State v. Gilbert


       The motorcycle eventually crashed and the occupants were arrested after fleeing

on foot. Mr. Gilbert was identified as the motorcycle driver during the second pursuit.

The prosecutor ultimately charged Gilbert in count 1 with attempting to elude for the

successful evasion of the sergeant on August 26; count 2 was identified as attempting to

elude on August 27; count 3 alleged second degree vehicle prowling on August 27. The

matter proceeded to jury trial.

       There was no identification of Mr. Gilbert as the driver on the August 26 eluding

count and that charge was dismissed at the conclusion of the State's case. The remaining

charges, identified in the charging documents as counts 2 and 3, were submitted to the

jury. The jury was instructed on the elements of the charge of eluding "as charged in

count one" and the verdict form for that count identified the attempting to elude "as

charged in count one." Clerk's Papers (CP) at 112, 122. In contrast, the elements and

verdict form for the vehicle prowling did not make any reference to a "count." CP at

117, 123.

       The jury convicted Mr. Gilbert on both charges submitted to it. He then timely

appealed to this court.

                                       ANALYSIS

       The sole challenge raised in this appeal concerns the attempting to elude count.

Mr. Gilbert argues that because the jury instructions and verdict referred to the eluding




                                             2
No. 33098-2-III
State v. Gilbert


"as charged in count one" when in fact, count one had already been dismissed, there is no

valid verdict on the eluding charge. However, there was no error.

       Mr. Gilbert contends this case is controlled by State v. Rooth, 129 Wn. App. 761,

121 P.3d 755 (2005). 1 Although there are some superficial similarities between this case

and that one, the error identified in Rooth did not occur in this case.

       As relevant here, Rooth involved a prosecution for two counts of unlawful

possession of a firearm; one of the weapons was a .22 caliber handgun and the other a 9

mm handgun. 2 The 9 mm gun was identified in the charging document as the basis for

count I, while the .22 caliber was the basis for count II. Id. at 769. However, the court's

instructions and accompanying verdict forms reversed the count number for each weapon

from the count number used in the charging document. Id. During closing argument, the

prosecutor conceded that the evidence was insufficient to support the charge involving

the .22 caliber handgun. The jury acquitted the defendant on count one and convicted on

count two. Id. at 769-770.




       1
         Mr. Gilbert also contends his counsel was ineffective for failing to identify and
challenge the verdict form. Since we address the merits of his instructional challenges
and conclude that there was no prejudicial error, we decline to further address the
ineffective assistance contention.
       2 Three additional charges were submitted to the jury but are not relevant to the
issue presented here. 129 Wn. App. at 766.

                                              3
No. 33098-2-111
State v. Gilbert


       Division Two concluded that the "as charged in count" language of the verdict

forms referenced the charging documents. 3 Id. at 772. The appellate court then

interpreted the jury's acquittal on "count I" as involving the 9 mm handgun. Id. Because

the evidence concerning the .22 caliber handgun was insufficient, the jury's verdict on

"count II" was reversed. Id.

       Similarly here, Mr. Gilbert argues that the "as charged in count one" language

used in the eluding count instructions should be read to refer to the dismissed August 26

eluding instead of the August 27 eluding presented to the jury. For a couple of reasons,

there was no risk here of any similar confusion to that which occurred in Rooth.

       First, there is no indication in our record that the jury here was ever notified about

the charging document, let alone the numbering of counts in that document. While any

initial instructions to the venire were not transcribed for appeal, the court's preliminary

instructions do not at all refer to the charges before the jury and the court's written

instructions likewise only reference a single eluding charge rather than the two similar

counts described in the charging document.

       More critically, unlike the jury in Rooth that rendered verdicts on two similar

weapons charges, the jury here decided only a single eluding charge. There was no



       3  The court's opinion does not indicate whether the charging document was read to
the jury or whether the contents of the charging document were otherwise identified to
the jury.

                                              4
No. 33098-2-III
State v. Gilbert


possibility of confusion between multiple similar charges as might have occurred in

Rooth. Here the jury was told that it was to consider whether the prosecution had proved

the elements of an attempting to elude count committed on August 27 "as charged in

count one." The verdict form similarly referred to the eluding "as charged in count one."

The elements instruction and the verdict form were internally consistent, even if

denominating the "count one" eluding charge differently than it had been alleged in the

charging document.

       We see no risk of jury confusion here. The panel was properly instructed solely

on one count of attempting to elude and returned a single verdict on a single eluding

charge. If there were any error here at all, it was a mere clerical error. Mr. Gilbert's right

to a jury determination of the charge against him was not impinged in the slightest.

       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:



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