State v. Loveland, No. 33147-1-II (Wash. App. 11/14/2006)

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Unpublished Opinion

STATE OF WASHINGTON, Respondent, v. DAVID CHRISTIAN LOVELAND, Appellant.

No. 33147-1-II.

Court of Appeals of Washington, Division Two.

Filed: November 14, 2006.

Appeal from Pierce County Superior Court. Docket No: 04-1-04304-4. Judgment or order under review. Date filed: 04/01/2005. Judge signing: Honorable Frederick Fleming.

Counsel for Appellant(s), Rebecca Wold Bouchey, Attorney at Law, Mercer Island, WA.

Counsel for Respondent(s), Todd Andrew Campbell, Pierce Co Pros Attorneys Ofc, Tacoma, WA.

QUINN-BRINTNALL, J.

David Loveland was charged with attempting to elude a pursuing police vehicle, driving while intoxicated, and reckless driving. The jury found him guilty as charged. On appeal, Loveland does not challenge his conviction for driving while intoxicated. He challenges only his convictions for attempting to elude and reckless driving, arguing that (1) the evidence is insufficient to support both convictions and that (2) double jeopardy bars convictions for both of these charges.

Loveland also challenges his sentence, arguing that the trial court erred in failing to find that attempting to elude and reckless driving were the same criminal conduct and thus improperly included his reckless driving conviction when it calculated his offender score. Because double jeopardy is not offended and the evidence is sufficient to support the jury's verdicts, we affirm Loveland's convictions. Further, Loveland's offenses did not arise out of the same criminal conduct and the sentencing court did not err in including each in calculating Loveland's offender score.

FACTS

Background

On September 7, 2004, a uniformed Puyallup police officer, Jacob Stringfellow, traveled eastbound in his police car on River Road, which had a 50 mile-per-hour speed limit. Officer Stringfellow saw Loveland's red Honda hatchback speeding down the westbound side of the road. Officer Stringfellow estimated Loveland's speed between 95 and 100 miles per hour. Officer Stringfellow switched on his radar detector, which read Loveland's speed at 101 miles per hour. River Road is a four-lane road with two lanes going each direction, separated by a single turn lane down the middle and intersected by numerous access roads. During the incident, medium traffic flowed in both directions and numerous vehicles traveled near Loveland's hatchback.

Officer Stringfellow, still in the eastbound lane with Loveland in front of him traveling westbound, activated his emergency lights and sirens. He then made a u-turn, placing his vehicle into the westbound lane approximately five to seven car lengths behind Loveland's hatchback.¹ Immediately after making the u-turn, Officer Stringfellow drove behind Loveland's hatchback at about 70 to 100 miles per hour and Officer Stringfellow saw the hatchback brake and slow down, but then speed up again. Because Officer Stringfellow did not see anything in front of Loveland's vehicle that would cause Loveland to change his speed, he reasoned that Loveland's conduct was in direct response to his having activated his lights and sirens and making a u-turn. Loveland continued speeding down River Road for about two miles, negotiating the traffic in front of him by passing vehicles in both lanes and switching lanes back and forth. All the while, Officer Stingfellow was behind him continuously with his police lights and siren activated.

Loveland eventually came to a stop-light controlled intersection with Officer Stringfellow directly behind him. The light was red and traffic was stopped. Officer Stringfellow still had his lights and siren activated. The traffic light turned green and Officer Stringfellow noticed that some drivers appeared confused, with some stopping, others trying to pull over, and others trying to move forward. Loveland, with some difficulty because of other vehicles, proceeded forward through the intersection. Traffic was still in front of him. Loveland proceeded forward a little, then pulled over abruptly, half in and half out of a lane, then finally stopped.

To Officer Stringfellow, Loveland's state of intoxication was obvious because he smelled of alcohol, slurred his speech, and had bloodshot eyes and droopy eyelids. Upon questioning, Loveland stated that he had had several beers while fishing.²

Procedure

The State charged Loveland with attempting to elude a pursuing police vehicle,³ count I; driving under the influence of intoxicants,⁴ count II; and reckless driving,⁵ count III.

At trial, Loveland testified in his own defense. He admitted driving between 70 to 80 miles per hour down River Road for approximately two miles, changing lanes to get around traffic, and having a couple of beers while fishing. But he asserted that he did not hear Officer Stringfellow's police siren because he was playing music in his car and said he pulled over immediately after he knew that Officer Stringfellow was signaling for him to do so.

The jury found Loveland guilty as charged and the trial court sentenced him to five months for count I, allowing any in-patient treatment program time to be credited toward the five-month sentence. The trial court also imposed concurrent 365-day suspended sentences on counts II and III, with credit for two days already served. As a condition of the suspended sentence, the trial court prohibited Loveland from having any alcohol-related offense for five years.

Loveland appeals.

This appeal requires that we address three issues: (1) whether sufficient evidence supports Loveland's convictions for attempting to elude a pursing police vehicle and reckless driving; (2) whether Loveland's convictions for both attempting to elude a police vehicle and reckless driving violate double jeopardy; and (3) whether the trial court abused its discretion by failing to find that attempting to elude a police vehicle and reckless driving were the same criminal conduct for purposes of calculating Loveland's offender score.

ANALYSIS

Sufficiency of the Evidence

Loveland maintains that the evidence is insufficient on both counts I and III to support the jury's guilty verdict. Regarding the attempting to elude conviction, he argues that insufficient evidence supported the element of "willful failure to stop" because he testified that he did not see the officer and pulled his car to the side of the road shortly after he noticed the police car. Regarding both the attempting to elude conviction, count I, and the reckless driving conviction, count III, he argues that insufficient evidence supported that he drove recklessly because the prosecution presented evidence only that he drove at an excessive speed.

Evidence is sufficient to support a conviction if, viewed in the light most favorable to the prosecution, 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 evidence and direct evidence are equally reliable. State v. Delmarter, 94 Wn.2d 634, 638, 618 P.2d 99 (1980). We defer to the trier of fact on issues of conflicting testimony, credibility of witnesses, and the persuasiveness of the evidence. State v. Walton, 64 Wn. App. 410, 415-16, 824 P.2d 533, review denied, 119 Wn.2d 1011 (1992).

Attempting to Elude a Pursuing Police Vehicle

In order to convict Loveland of attempting to elude a pursuing police vehicle, the State was required to prove that (1) Loveland willfully failed or refused to immediately bring his vehicle to a stop after a police officer gave him a visual or audible signal to stop by hand, voice, emergency light, or siren; (2) Loveland drove his vehicle in a reckless manner while attempting to elude a pursuing police vehicle; and (3) the officer giving such a signal was in uniform and the vehicle was equipped with lights and sirens when the officer signaled Loveland to stop. RCW 46.61.024. Loveland challenges the sufficiency of the evidence to support that he willfully failed to stop and that he drove in a reckless manner.

Sufficient evidence supports the jury's finding that Loveland willfully failed to stop. Officer Stringfellow first saw Loveland speeding toward him at 95 to 101 miles per hour. He signaled Loveland to stop by activating his lights and sirens and made a u-turn to pull behind Loveland. Loveland immediately braked but then sped up. Loveland continued to speed, changing lanes and weaving in and out of traffic for two miles while Officer Stringfellow followed him with his lights flashing and sirens blaring. Loveland did not stop. Loveland claimed that he stopped immediately upon noticing that the officer was behind him, but the jury was entitled to disbelieve Loveland's testimony on this point and we do not revisit credibility determinations on appeal. State v. Camarillo, 115 Wn.2d 60, 71, 794 P.2d 850 (1990). Based upon this evidence, any rational trier of fact could find beyond a reasonable doubt that Loveland willfully failed to stop after being directed to do so, as the statute required.

Sufficient evidence also supports the jury's finding that Loveland was driving recklessly, here defined as "in a rash or heedless manner, indifferent to the consequences."⁶ Clerk's Papers (CP) at 42. Loveland drove at speeds between 70 to 101 miles per hour in a 50 mile-per-hour zone while switching lanes and weaving in and out of traffic. Loveland was also intoxicated, smelled of alcohol, and had bloodshot eyes and slurred speech. From this evidence, a rational trier of fact could find beyond a reasonable doubt that Loveland drove recklessly while attempting to elude Officer Stringfellow.

Reckless Driving

To prove that Loveland drove recklessly in violation of RCW 46.61.500, the State was required to prove that he drove his vehicle "in willful or wanton disregard for the...