State Of Washington v. Carolyn Richardson ( 2015 )

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON, M rj~>
No. 71146-6-1 CJ'< ^*
Respondent, "-I- o-
DIVISION ONE
v.
UNPUBLISHED OPINIONS-
CAROLYN RICHARDSON,
co
Appellant. FILED: January 12, 2015 CT-
Appelwick, J. — Richardson appeals her conviction for felony hit and run. She
argues that the jury was improperly instructed on an uncharged alternative means of
committing the crime. She argues that there was insufficient evidence to conclude that
she knew she was in an accident. In a statement of additional grounds she argues that
she received ineffective assistance of counsel. We affirm.
FACTS
On November 1, 2012, at roughly 7:20 a.m., T.A., a 12 year old girl, was riding her
bicycle to school. T.A. was wearing a bright red hoodie, blue jeans, and a bright red
backpack that was stuffed with books. T.A. was not wearing any reflective gear nor did
any of her clothing have reflective material on it. It was early in the morning and was
"between light and dark." But, it was light enough to see without a flashlight. The
surrounding streetlights were on. It was cloudy and rainy.
T.A. was biking south on the sidewalk of Central Avenue North in Kent. As T.A.
approached a point where a side street exits a park and enters Central Avenue, a truck
was attempting to turn onto Central from the side street and was blocking her path across
the sidewalk. T.A. stopped on the sidewalk before reaching the side street to wait for the
truck to make the turn. After the truck cleared the sidewalk, T.A. started pedaling again,
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arrived at the part of the side street where cars exit the park, looked both ways, and
proceeded through the intersection.
As T.A. was pedaling through the intersection, she saw another car approaching
the intersection. T.A. saw the car stop for a few seconds before reaching the sidewalk.
T.A. could see the driver enough to tell that she was a woman. Before making the right
turn onto Central, the driver looked only left, to the south on Central—the driver was not
looking north at T.A. The driver then continued driving toward the sidewalk in order to
make a right turn to the north on Central. The driver of the car hit T.A.
As the car drove away, T.A. and her bike were pulled underneath the car. T.A. felt
the tire of the car run over her hips and her hand. When the car was running her over,
T.A. screamed "stop" multiple times. Upon impact, the car rolled T.A. causing her to be
faced down on the street. As the driver continued to drive, the car dragged T.A. and T.A.
subsequently felt the second tire drive over her lower back. T.A. was left lying in the street
as the driver continued north on Central.
David Nuon and Julie Binh were driving north on Central that morning. Nuon saw
the car merging into traffic off of the side street. Nuon saw someone moving underneath
the car. Nuon saw T.A. get dragged into the intersection as the car completed its merge
into traffic. Nuon said the car looked like it was driving over a speed bump as it hit T.A.
After T.A. was out from underneath the car, the driver briefly applied the brakes but then
continued driving north on Central. Nuon and Binh stopped to assist T.A. Binh stayed
with T.A., and Nuon followed the car in order to get its license plate number. While Binh
was tending to T.A., another driver called 911.
No. 71146-6/3
When Nuon followed the car, he was driving roughly 40 or 45 miles per hour. Nuon
did not honk or flash his lights at the driver. Nuon caught up with the car in roughly three
to four minutes. He successfully obtained the license plate number and returned to the
scene of the accident. At that point the police had already arrived, and Nuon gave the
license plate number to Officer Robert Kellams.
Officer Kellams retrieved the bicycle from the scene of the accident. The bike's
handlebars were turned clockwise, there was damage to the rear tire and the wheel, the
shaft was broken, one of the pedals was missing, and there were scuffs on the gearshifts,
control cables, and the seat.
Officer Kellams then obtained the registered owner information for the car from the
Department of Licensing. Officer Kellams went to the address associated with the car.
The registered owner of the car was not at home, but a family member advised Officer
Kellams that her grandmother, Carolyn Richardson, had recently left to teach a fitness
class at the YMCA driving the car involved in the accident. Officer Kellams contacted the
registered owner of the car, James Ellis, Richardson's husband, and informed him of the
accident. Officer Kellams traveled to the YMCA, but Richardson was not there. Ellis had
called Richardson and informed her that the police had contacted him about an accident.
Richardson became upset and left the YMCA. After speaking with Ellis, Richardson
called the Kent Police Department and informed them that she would be coming in.
Upon her arrival at the police station Richardson was not under arrest, but
voluntarily answered questions and cooperated with all requests. Richardson claimed
that she was at the intersection in question and made the turn in question, but did not
know that she had hit T.A. Richardson told the officers that she was at the intersection,
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because she was running late to a fitness class that she teaches and cut through the park
to avoid traffic. Richardson was upset at the thought that she had hit a person. She was
very distraught when she learned that T.A. had been injured. Richardson told the officers
that she thought she had hit a muffler, a hubcap, or some other road debris. Richardson
told the officers that after she believed she hit road debris, she looked in the rearview
mirror and did not see anything, looked behind her and did not see anything so she
continued driving. Richardson was listening to the radio at the time of the accident.
While at the police station, Officer Donovan Dexheimer performed a drug influence
evaluation on Richardson. Richardson voluntarily engaged in the evaluation and
performed all tests adequately. Officer Kellams photographed Richardson's car, including
the undercarriage. The car had a mark at the bottom corner and a dent and a crack on
the front bumper. The car had numerous scrapes underneath it and a black mark that
looked like itwas caused by a tire. There was also damage to the muffler. Officer Kellams
believed it was fresh damage. Richardson then gave a taped statement about the events
of that morning.
T.A. was taken to Harborview Medical Center for treatment after the accident. T.A.
sustained three fractures of her pelvis and several fractures to her hands. T.A had tire
marks on her lower back.
Richardson was charged with felony hit and run, RCW 46.52.020(1 ),(4)(a), or (b).
A jury found Richardson guilty as charged. Richardson was sentenced to 45 days in King
County Work/Education Release, six months of community custody, and 240 hours of
community service within six months. Richardson appeals.
No. 71146-6/5
DISCUSSION
Richardson argues that her conviction must be reversed, because the jury was
instructed on an uncharged alternative means of committing the crime of hit and run.
Richardson also contends that reversal is required, because there was insufficient
evidence to conclude that she knew she was involved in an accident. She also makes a
statement of additional grounds and contends that she received ineffective assistance of
counsel.1
I. Uncharged Alternative Means
Richardson argues that the jury was improperly instructed on an uncharged
alternative means of committing the crime of hit and run. She highlights the discrepancies
between the information charging her with hit and run and jury instruction six. Jury
instruction six says:
A person commits the crime of hit and run when he or she is the
driver of a vehicle and is knowingly involved in an accident resulting in injury
to any person and fails to carry out his or her obligation to fulfill all of the
following duties:
(1) Immediately stop the vehicle at the scene of the accident or as
close thereto as possible;
(2) Immediately return to and remain at the scene of the accident
until all duties are fulfilled;
1 Richardson asserts two additional grounds. However, her first additional ground
makes an insufficiency of the evidence argument—the same argument her counsel made
in the second assignment of error in Richardson's opening brief. Richardson repeats her
counsel's argument. As such, we will address Richardson's first statement of additional
grounds as an assignment of error instead of a pro se statement of additional grounds.
See RAP 10.10(a) (a pro se statement of additional grounds is appropriate when the
defendant believes a matter has not been adequately addressed by the brief filed by the
defendant's counsel).
No. 71146-6/6
(3) Give his or her name, address, insurance company, insurance
policy number, and vehicle license number, and exhibit her driver's license,
to any person struck or injured or the driver or any occupant of, or any
person attending, any vehicle collided with; or if none of the persons
specified are in condition to receive the information and no police officer is
present, immediately report the accident to the nearest office of the police,
give her name, address, insurance company, insurance policy number, and
vehicle license number, and exhibit his or her driver's license, after fulfilling
all other obligations insofar as possible on her part to be performed; and
(4) Render to any person injured in the accident reasonable
assistance, including the carrying or making of arrangements for the
carrying of such person to a physician or hospital for medical treatment if it
is apparent that such treatment is necessary or if such carrying is requested
by the injured person or on his or her behalf.
(Emphasis added.) Richardson claims the underlined portion of the instruction is an
alternative means of committing the crime of hit and run that was missing from her
charging document.
The State contends that Richardson may not assert this argument on appeal,
because she herself proposed the challenged jury instruction. Under the invited error
doctrine, a party may not request an instruction and later complain on appeal that the
requested instruction was given. State v. Henderson, 114 Wash. 2d 867, 870, 792 P.2d 514
(1990). Richardson proposed the jury instruction she now challenges on appeal. This
instruction became jury instruction six at trial. We decline to review Richardson's claim.
Even if we were to reach the merits of Richardson's claim, her argument fails
because hit and run is not an alternative means crime. An alternative means crime sets
forth "distinct acts that amount to the same crime." State v. Peterson, 168 Wash. 2d 763,
770, 230 P.3d 588 (2010). The legislature has not statutorily defined which crimes are
alternative means crimes and it is left to judicial determination, jd. at 769. Theft is an
example of an alternative means crime, because it may be committed by (1) wrongfully
No. 71146-6/7
obtaining or exerting control over another's property or (2) obtaining control over another's
property through color or aid of deception. State v. Linehan, 147 Wash. 2d 638, 644-45,
647, 56 P.3d 542 (2002). In each alternative means of committing theft, the defendant's
conduct varies significantly. Peterson, 168 Wash. 2d at 770.
In contrast, the failure to register as a sex offender is not an alternative means
crime. Id. In Peterson the defendant argued that the failure to register statute is an
alternative means crime, because the crime can be committed by failing to register as a
sex offender after (1) becoming homeless, (2) moving between residences in one county,
or (3) moving between counties, id. at 769-70. The court held that the statute did not
create an alternative means crime, because an individual's conduct in each of the three
scenarios did not vary significantly. id. at 770. The statute prohibited the single act of
moving without providing the proper notice, id.
Similarly, the relevant portion of the hit and run statute contemplates a single act—
the failure to provide identification to the other party after an accident has taken place.
RCW 46.52.020(3). A driver can provide the identification via different methods—directly
to the party at the scene of the accident or, if the party is not in a condition to receive the
identification, then the driver may provide the information at the nearest police station, id
Richardson argues that her charging document was insufficient, because itdid not
provide the alternative duty to report to the police station in the event the driver cannot
provide identification to the other party at the scene of the accident. But, the failure to
provide the required information at the scene ofan accident or at the closest police station
is one single act—failing to provide the requisite identification. That there are different
methods available to a driver of presenting identification after an accident does not make
No. 71146-6/8
hit and run an alternative means crime. Therefore, the trial court did not instruct the jury
on an alternative means of committing the crime that was not included in Richardson's
charging document. This was not instructional error.
II. Sufficiency of the Evidence
Richardson argues that there was insufficient evidence at trial to conclude that she
knew she was involved in an accident. Richardson argues the State was tasked with
proving that she knew that she had been involved in an accident as opposed to hitting
road debris as she contends.
RCW 46.52.020(1) provides:
A driver of any vehicle involved in an accident resulting in the injury to or
death of any person or involving striking the body of a deceased person
shall immediately stop such vehicle at the scene of such accident or as
close thereto as possible but shall then forthwith return to, and in every
event remain at, the scene of such accident until he or she has fulfilled the
requirements of subsection (3) of this section; every such stop shall be
made without obstructing traffic more than is necessary.
(Emphasis added.) To convict a person of felony hit and run, the State must also prove
beyond a reasonable doubt that the defendant knew she was involved in an accident.
State v. Perebevnos. 121 Wash. App. 189, 192, 87 P.3d 1216 (2004).
A person acts with knowledge when:
(i) he or she is aware of a fact, facts, or circumstance or result
described by a statute defining an offense; or
(ii) he or she has information which would lead a reasonable man in
the same situation to believe that facts exists which facts are described by
a statute defining an offense.
RCW9A.08.010(1)(b).
No. 71146-6/9
An appellate court reviews a challenge to the sufficiency of the evidence by
determining whether, after viewing the evidence in the light most favorable to the State,
any rational trier of fact could have found the essential elements of the crime beyond a
reasonable doubt. State v. Green. 94 Wash. 2d 216, 221, 616 P.2d 628 (1980).
In determining the sufficiency of the evidence, circumstantial evidence is not to be
considered any less reliable than direct evidence. State v. Delmarter, 94 Wash. 2d 634, 638,
618 P.2d 99 (1980). Knowledge may be inferred from circumstantial evidence.
Perebevnos, 121 Wash. App. at 196. If information is sufficient to cause a reasonable
person in the same situation to believe that a fact exists, the trier of fact may infer that the
defendant had knowledge, id An appellate court will defer to the trier of fact to resolve
conflicts in testimony, weigh evidence, and draw reasonable inferences, id
Richardson argues that the evidence taken in a light most favorable to the State
does not support the conclusion that Richardson knew that she had been involved in an
accident. Richardson supports this assertion by arguing that it was dark and raining, that
T.A. was not wearing reflective clothing, and that T.A. looked both ways before turning
and did not see Richardson coming. Richardson also asserts that she looked back after
feeling a bump and did not see anything. However, there is conflicting evidence in the
record that supports the opposite conclusion—that Richardson, or a reasonable person
in the same situation, would have had knowledge of an accident.
First, witnesses testified that it was not as dark or raining as hard as Richardson
claimed at the time of the accident. Richardson testified that it was dark, pouring down
rain, and that she was using her windshield wipers on maximum speed. But, Julie Binh
described it as "a little bit dark" and "sprinkling" at the time. David Nuon also described
No. 71146-6/10
sprinkling and said that it was cloudy out. T.A. testified that it was sprinkling just a little.
T.A. testified that it was "between light and dark" and that it was light enough to see
everything. Officer Kellams testified that by the time he arrived at the accident scene, he
did not need a flashlight to see anything. In addition to bolstering the State's assertions
that visibility was sufficient that morning, the conflicting testimony of these several
witnesses likely undercut Richardson's credibility with the jury.
Moreover, in light of this testimony suggesting reasonable visibility on the day of
the accident, a reasonable trier of fact could conclude that T.A. was readily visible despite
her lack of reflective clothing. While it is true that T.A. was not wearing reflective clothing
at the time of the accident, she was wearing a bright red hoodie and a bright red backpack
stuffed with books.
Finally, T.A.'s experience, the damages to T.A.'s bike, and other testimony about
the accident suggest that Richardson would have heard or felt more than a bump that a
driver might attribute to a muffler, a pothole, or other road debris. T.A.'s bicycle was
heavily damaged. Similarly, there was damage to Richardson's car that Officer Kellams
implied was caused by the bike. Additionally, T.A. testified that she felt both tires run her
over. Nuon testified that he saw Richardson's car bouncing as if it had driven over a
speedbump.
There is sufficient evidence in the record for a jury to infer that a reasonable person
under the same circumstances as Richardson would have known that she was involved
in an accident. A rational trier of fact could have found that Richardson had the requisite
knowledge to be convicted of a hit and run beyond a reasonable doubt.
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No. 71146-6/11
III. Ineffective Assistance of Counsel
In her statement of additional grounds, Richardson argues that she received
ineffective assistance of counsel. To prevail on a claim of ineffective assistance, a
defendant must show that (1) counsel's performance was deficient and (2) the deficient
performance prejudiced the trial. Strickland v. Washington, 466 U.S. 668, 687,104 S. Ct.
2052, 80 L. Ed. 2d 674 (1984). The first prong of the Strickland test requires a showing
that counsel's representation fell below an objective standard of reasonableness based
on consideration of all the circumstances. State v. Thomas, 109 Wash. 2d 222, 226, 743
P.2d 816 (1987). The second prong requires the defendant to show there is a reasonable
probability that, but for counsel's conduct of errors, the results of the proceeding would
have been different. Jd There is a strong presumption of effective assistance. In re Pet,
of Moore, 167 Wash. 2d 113, 122, 216P.3d 1015(2009). Ifdefense counsel's trial conduct
can be characterized as legitimate trial strategy or tactics, then it cannot serve as a basis
for a claim that the defendant did not receive effective assistance of counsel. State v.
Lord, 117 Wash. 2d 829, 883, 822 P.2d 177 (1991).
First, Richardson asserts that her attorney should have presented a different
theory of the accident per their pretrial agreed strategy. She contends that their original
strategy was to present the view of the accident that T.A. collided with only Richardson's
back passenger tire and that is why Richardson did not see her and know about the
accident. This court will not find ineffective assistance of counsel if the actions a
defendant complains about go to the theory of the case. State v. Varga. 151 Wash. 2d 179,
199, 86 P.3d 139 (2004). Further, it was reasonable for Richardson's counsel to stray
from this theory, because evidence in the record directly contradicts it. T.A. testified that
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No. 71146-6/12
she was run over by two tires. Other witnesses testified that T.A. was trapped underneath
Richardson's car and dragged. It was reasonable for Richardson's counsel to be wary of
the back tire theory because it is inconsistent with the other witness accounts. As
counsel's actions go to the theory of the case, Richardson did not receive ineffective
assistance of counsel.
Richardson claims that her attorney should have called the accident investigator
from her insurance company to testify instead of the less experienced accident
reconstructionist, Mark Chapman. Ordinarily, the decision whether to call a witness is a
matter of legitimate trial tactics and will not support a claim of ineffective assistance of
counsel. State v. Maurice, 79 Wash. App. 544, 552, 903 P.2d 514 (1995).
Here, Richardson has provided no facts showing that her counsel should have
selected the insurance investigator instead of the accident reconstructionist, that counsel
had any reason to believe that Chapman was incompetent, or that Chapman's credentials
were deficient. See In re Pers. Restraint of Pavis, 152 Wash. 2d 647, 733, 101 P.3d 1, 47
(2004) (counsel's expert witness selection not deficient when counsel had no reason to
believe the experts were incompetent or that credentials of the experts were deficient in
any manner). That Chapman was "less experienced" does not necessarily make him
deficient. It was not unreasonable for Richardson's counsel to elect to choose an accident
reconstructionist instead of an insurance investigator to testify as to what likely happened
when Richardson hit T.A. Counsel's decision to use Chapman was a legitimate tactical
decision.
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No. 71146-6/13
Additionally, Richardson contends her attorney should have presented a picture of
her steep driveway to account for the damage to the undercarriage of her car. Richardson
wanted this evidence admitted to prove that the scrapes were not from the accident with
T.A. Richardson's counsel cross-examined Officer Kellams about the scrapes on the
bottom of Richardson's car during trial. Officer Kellams admitted that he had never seen
the undercarriage of the car before the accident and that many of the marks were from
before the incident. As such, a picture of Richardson's driveway would have been
cumulative to make the point that the undercarriage of the car had prior damage. See
State v. Peyton. 29 Wash. App. 701, 718, 630 P.2d 1362 (1981) (reasoning no ineffective
assistance when testimony would have been cumulative). Presenting a picture of the
driveway could have afforded the State the opportunity to argue that some of the scrapes
were definitively not from the driveway and were instead from the accident. Richardson
fails to show that counsel's decision not to present the photo was not a legitimate trial
tactic.
Similarly, Richardson contends that her attorney should have called the previous
owner of her vehicle or her husband as witnesses to testify to the fact that there was
existing damage to her vehicle. The officer testified that many of the marks on the
undercarriage were from before the accident, potentially making their testimony
unnecessary. And, there is no suggestion that they had knowledge allowing them to
contradict the testimony that some of the damage to the bottom of the vehicle was "fresh"
and that one of the marks was a tire mark. It was reasonable for Richardson's attorney
to decide not to present contradictory witness testimony that might have undercut
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No. 71146-6/14
Richardson's credibility, particularly when the vehicle damage was not completely
determinative as to whether Richardson knew she was involved in an accident.
Richardson's counsel objected when a witness insinuated that Richardson was
aware she had hit T.A. Counsel objected based on speculation when Nuon said that
Richardson was panicking as she was driving away from the scene of the accident.
However, Richardson argues that her attorney did not adequately challenge several of
the prosecutor's witnesses when they contended Richardson was aware an accident took
place. This assertion lacks the required specificity for our review. See RAP 10.10(c)
("[T]he appellate court is not obligated to search the record in support of claims made in
a defendant/appellant's statement of additional grounds for review."); State v. O'Connor,
155 Wash. App. 282, 29394, 229 P.3d 880 (2010) (declining to review statement of
additional grounds where appellant did not explain the underlying facts for his claims).
Finally, Richardson claims that her attorney making references to her as a "hurried
poor driver" and references to her as being "guilty" of not knowing about the accident in
closing argument undermined her. We are unable to find "several" references in the
record of this nature. At one point, defense counsel argues that just because Richardson
was negligent does not make her guilty of a crime. Insofar as a statement like this forms
the basis for Richardson's challenge, itwas a legitimate trial strategy for defense counsel
to highlight for the jurors that they could find Richardson's actions careless and
reprehensible and yet still find her innocent of the crime of hit and run. Richardson fails
to show that counsel's closing arguments were not a legitimate trial tactic.
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No. 71146-6/15
The trial court did not err in presenting instruction six to the jury. There was
sufficient evidence to conclude that Richardson knew she was involved in an accident.
Richardson has not demonstrated that she received ineffective assistance of counsel.
We affirm.
WE CONCUR:
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