State Of Washington v. Adrian Dorell Greenhalgh ( 2018 )

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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION ONE
STATE OF WASHINGTON, ) No. 75904-3-1
)
Respondent, )
)
v. )
) UNPUBLISHED OPINION
ADRIAN DORELL GREENHALGH, )
) FILED: April 16, 2018
Appellant. )
)
VERELLEN, J. — The State charged Adrian Greenhalgh with vehicular
assault. A jury found Greenhalgh guilty as charged, and the court imposed an 84-
month standard range sentence.
Green halgh challenges the sufficiency of the evidence supporting his
conviction. But viewed in the light most favorable to the State, there was sufficient
evidence that he drove under the influence of intoxicating liquor and caused
substantial bodily harm to another.
The sentencing court calculated Greenhalgh's offender score as 9.
Because we may affirm on any basis supported by the record, and the judgment
and sentence includes a list of his previous offenses, the court's offender score
calculation is correct.
We affirm.
No. 75904-3-1/2
FACTS
On April 26, 2015, Adrian Greenhalgh, his brother Antwon,1 and their
friends Demarcus Simmons and Lovely Child "LC" Manuel went to a concert in
downtown Seattle. They consumed alcohol throughout the night, and sometime
around 2:30 a.m., they went to the Silver Dollar Casino in SeaTac to eat food and
"sober up."2 After approximately "an hour to an hour and a half,"3 the casino shift
manager asked the group to leave because they were being disruptive. Shortly
after leaving the casino, Greenhalgh crashed a BMW sedan into a utility pole with
Antwon, Simmons, and Manuel inside the car. Manuel suffered a serious brain
injury and spent two months in the hospital.
The State charged Greenhalgh with vehicular assault, alleging that he
drove while intoxicated and crashed into a utility pole, causing Manuel significant
brain damage. A jury found Greenhalgh guilty, and the King County Superior
Court imposed an 84-month standard range sentence.
Greenhalgh appeals.
1 We refer to Antwon Greenhalgh throughout this opinion by his first name
to avoid confusion.
2 Report of Proceedings (Aug. 10, 2016) at 334.
3 RP (Aug. 9, 2016) at 182.
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No. 75904-3-1/3
ANALYSIS
I. Sufficiency of the Evidence
Greenhalgh argues the State did not prove he committed vehicular assault
beyond a reasonable doubt.
A defendant's right to due process requires the State to prove each element
of an offense beyond a reasonable doubt.4 Evidence is sufficient to support a
conviction if, viewing the evidence in the light most favorable to the State, it
permits any rational trier of fact to find the essential elements of the crime beyond
a reasonable doubt.5 "A claim of insufficiency admits the truth of the State's
evidence and all inferences that reasonably can be drawn therefrom."6 "In
determining the sufficiency of the evidence, circumstantial evidence is not to be
considered any less reliable than direct evidence."7 While inferences from the
evidence must be based on more than speculation, the trier of fact resolves
conflicting testimony and weighs the persuasiveness of the evidence.5 We defer
to the trier of fact on issues of conflicting testimony, witness credibility, and
persuasiveness of evidence.9
4 State v. Hundlev, 126 Wash. 2d 418, 421, 895 P.2d 403(1995).
5 State v. Salinas, 119 Wash. 2d 192, 201, 829 P.2d 1068 (1992).
6 Id.
v. Delmarter, 94 Wash. 2d 634, 638,618 P.2d 99(1980).
7 State
8 State v. Rich, 184 Wash. 2d 897, 903, 365 P.3d 746 (2016); State v. Walton,
64 Wash. App. 410, 415-16, 824 P.2d 533(1992).
9 Walton, 64 Wash. App. at 415-16.
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No. 75904-3-1/4
A person commits vehicular assault when he or she operates a vehicle
while under the influence of intoxicating liquor and causes substantial bodily harm
to another.1° The State must prove that the defendant's operation of a vehicle was
a proximate cause of the victim's substantial bodily harm.
Here, there was sufficient evidence that Greenhalgh, who was intoxicated,
drove the BMW into a utility pole, causing a severe brain injury to one of his
passengers. Silver Dollar Casino surveillance cameras recorded the events
immediately before and after the crash. The video showed the four men leaving
the casino at 4:15 a.m. Greenhalgh and Antwon were both visibly intoxicated and
had difficulty walking. The men spent nearly 15 minutes in the parking lot. When
the sedan left the Casino parking lot, Greenhalgh was driving, Antwon was in the
front passenger seat, Simmons was in the backseat behind the driver, and Manuel
was in the backseat on the passenger side. Soon after the group left the casino in
the early morning hours of April 27, 2015, Robert Nero, the casino's shift manager,
learned a car had crashed outside. Nero went outside and saw that a BMW sedan
had crashed into a utility pole. The surveillance video showed Nero going outside
to investigate the crash within two minutes after Greenhalgh drove out of the
parking lot. He approached the car and recognized the four men from the casino.
Greenhalgh was in the driver's seat, trying to start the car. Nero saw Antwon in
the passenger seat, reaching into his pants for what turned out to be a cellphone.
Nero also noticed Simmons leaning into the backseat and shaking Manuel, who
10 RCW 46.61.522(1)(b).
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No. 75904-3-1/5
appeared unconscious. Greenhalgh got out of the car, and Nero told him that
police were on the way.
King County Sheriff's Deputy Richard Dosio arrived and saw the crashed
sedan, with smoke coming from the hood. No one was in either front seat, but
Dosio saw Antwon get out of the rear passenger side, look at him, and put
something in some bushes nearby. Dosio later found a liquor bottle in those
bushes.
Nero identified Greenhalgh as the person in the driver's seat immediately
following the crash, and deputies arrested him. Greenhalgh's blood was drawn
nearly three hours after the crash, and his blood-alcohol level was 0.12. Drug
recognition expert Deputy Mark Silverstein observed that Greenhalgh appeared
intoxicated, his balance was poor, and he swayed approximately four inches from
side to side.
Manuel sustained a serious brain injury and spent two months in the
hospital. When he was discharged, he still had serious cognitive and memory
problems and was unable to care for himself.
At trial, Greenhalgh and Antwon acknowledged they had consumed alcohol,
and Greenhalgh drove the car when they left the casino. But they said that when
Greenhalgh pulled out of the parking lot, he stopped the car, saw an acquaintance
of Manuel's walking down the street, Manuel got out of the car to speak to the
man, Greenhalgh got out of the car to vomit, and Manuel's acquaintance agreed to
drive the car. According to Greenhalgh and Antwon, Greenhalgh got into the
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No. 75904-3-1/6
backseat with Simmons and Manuel and the acquaintance got into the driver's
seat, drove away erratically, and crashed into the pole. They testified that after the
crash, the acquaintance immediately ran away. No one saw anyone other than
Greenhalgh, Antwon, Simmons, and Manuel near the car after the crash.
Greenhalgh found the car keys, got into the driver's seat and tried to start the car,
to "coast the car back to the casino parking lot."11 According to Greenhalgh, once
he was unable to start the car, he walked across the street to a motel and asked
an employee to call an ambulance. He also testified that he asked the motel
employee for a room because "the vehicle was crashed," and the men would
"need somewhere to go," but the motel employee said there was no vacancy.12
Considering the evidence as a whole, any rational fact-finder could
conclude beyond a reasonable doubt that Greenhalgh was intoxicated and drove
the car into the pole, injuring Manuel. The video evidence showed Greenhalgh in
the driver's seat, driving out of the casino parking lot. The car crashed less than
two minutes later. Within two minutes, Nero learned of the crash and walked
outside to investigate. Within three minutes, Nero saw Greenhalgh in the driver's
seat, trying to start the car's engine. Any rational juror could reasonably infer from
the circumstantial evidence that Greenhalgh crashed the car.13
11 RP (Aug. 10, 2016) at 383.
12 RP (Aug. 10, 2016) at 387.
13 Delmarter, 94 Wash. 2d at 638 ("In determining the sufficiency of the
evidence, circumstantial evidence is not to be considered any less reliable than
direct evidence.").
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No. 75904-3-1/7
Greenhalgh contends that this inference is speculative because no witness
at trial testified to seeing Greenhalgh driving the car at the moment of impact. But
his argument overlooks the compelling circumstantial evidence in the surveillance
video which showed him stumbling away from the casino to the car, starting the
car, driving away, and the short time that elapsed before crashing into the pole.
Both Greenhalgh and Antwon admitted being intoxicated at the time. We do not
disturb the fact-finder's credibility determinations on appeal. Additionally,
Greenhalgh's testimony that he vomited and got into the backseat to sit with
Simmons and Manuel is not credible because the photograph admitted at trial
shows the backseat center armrest was down, making it impractical that three
adult men fit into the backseat with the armrest down.
There was sufficient evidence Greenhalgh operated a vehicle under the
influence of intoxicating liquor and caused substantial bodily harm to another.
II. Offender Score
Greenhalgh argues the court's findings of fact do not support its offender
score calculation.
The State bears the burden of proving a defendant's criminal history by a
preponderance of the evidence.14
To calculate an offender score, the sentencing court must "(1) identify all
prior convictions;(2) eliminate those that wash out;(3)'count' the prior convictions
14 RCW 9.94A.500(1); State v. Ford, 137 Wash. 2d 472, 479-80, 973 P.2d 452
(1999).
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No. 75904-3-1/8
that remain in order to arrive at an offender score."15
Here, the court's findings specifically incorporate appendix B of the
judgment and sentence which lists Greenhalgh's convictions that contribute to his
offender score. Greenhalgh's criminal history listed in appendix B reflects an
offender score of 9. Each of his four adult felony convictions count as one point
each,for a total of four points.16 Greenhalgh's two adult misdemeanor DUI
convictions score as one point each,for two additional points.17 His seven juvenile
convictions count as one half point each,for three and a half more points, rounded
down to three.15
But Greenhalgh argues the findings do not establish that his class C
felonies and serious traffic convictions prior to 2009 did not wash out under
RCW 9.94A.525(2). His argument fails.
The Sentencing Reform Act of 1981 provides that an offender score is "the
sum of points accrued under this section."19 The statute then defines a "prior
conviction" as "a conviction which exists before the date of sentencing for the
offense for which the offender score is being computed."29 The statute then
v. Moeurn, 170 Wash. 2d 169, 175, 240 P.3d 1158(2010).
15 State
16 RCW 9.94A.525(11); RCW 9.94A.030(26)(a).
17 RCW 9.94A.525(11); RCW 9.94A.030(45)(a).
18 RCW 9.94A.525(11).
18 RCW 9.94A.525.
28 RCW 9.94A.525(1).
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No. 75904-3-1/9
provides that certain prior convictions will not be included in the offender score if
certain conditions are met:
(c) Except as provided in (e) of this subsection, class C prior felony
convictions other than sex offenses shall not be included in the
offender score if, since the last date of release from confinement
(including full-time residential treatment) pursuant to a felony
conviction, if any, or entry of judgment and sentence, the offender
had spent five consecutive years in the community without
committing any crime that subsequently results in a conviction.
(d) Except as provided in (e) of this subsection, serious traffic
convictions shall not be included in the offender score if, since the
last date of release from confinement(including full-time residential
treatment) pursuant to a conviction, if any, or entry of judgment and
sentence, the offender spent five years in the community without
committing any crime that subsequently results in a conviction.[211
Greenhalgh argues the sentencing court's findings of fact for the offender
score calculation are incorrect because they do not address any potentially
washed out convictions. He relies on State v. Ramirez, but there, the judgment
and sentence itself, regardless of any wash out provisions, did not support the
offender score.22 Greenhalgh offers no compelling authority that Ramirez stands
for a broader application.
21 RCW 9.94A.525(2)(c),(d)(emphasis added).
22 190 Wash. App. 731, 734, 359 P.3d 929(2015)("Significantly, the State
agrees that the criminal history as listed in appendix B does not support the
offender score. The State points to three additional misdemeanor convictions to
explain how it calculated the offender score of 7. Nonetheless, the State argues
that it met its burden to prove criminal history because Ramirez 'affirmatively
agreed in writing that his offender score was ``7.' We reject this argument. The
Supreme Court has emphasized "the need for an affirmative acknowledgement by
the defendant of facts and information introduced for the purposes of sentencing"
before the State will be excused from its burden of providing criminal history.
There was no such affirmative acknowledgement in this case.")
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No. 75904-3-1/10
Additionally, the record before the trial court was inconsistent with
Greenhalgh having spent five years in the community without committing a
crime.23 He was incarcerated in 2009 for 65 months, and the current crime
occurred in April 2015.
Greenhalgh suggests the score is incorrect because the sentencing court
did not include the specific information regarding time served for each prior crime
in its findings of fact. But "[w]e may affirm on any basis supported by the record,"24
and here, the record is inconsistent with Greenhalgh spending "five years in the
community without committing any crime that subsequently results in a
conviction."25
We conclude the sentencing court properly calculated Greenhalgh's
offender score.
23 At sentencing, the court remarked:"And you have an offender's score of
nine because you have a lengthy criminal history. You sit before me at about 28
years of age with an offender's score of nine, wherein in 2009 you were sentenced
on, let's see, four different counts, the highest of which was 65 months. You were
sentenced to the low end of the range for each of those charges, and that seems
to be the only time you weren't getting in trouble. You get out, you're driving with a
suspended license, which is another indication you can't follow a court's order, you
can't stay out of trouble, no matter how many times we try and encourage you to
realize that you're only harming yourself. You get stopped for a DUI, and then
mere months later, this incident occurs." RP (Sept. 16, 2016) at 473.
24 Bavand v. OneWest Bank, 196 Wash. App. 813, 825, 385 P.3d 233(2016).
25 RCW 9.94A.525(2)(c),(d); see State v. Zamudio, 192 Wash. App. 503, 510-
11, 368 P.3d 222(2016)(reasoning that appellant's "suggestion that [his class C
felonies] might have washed out is dubious at best").
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No. 75904-3-1/1 1
III. Statement ofAdditional Grounds for Review
In a statement of additional grounds for review, Greenhalgh argues the
State presented insufficient evidence, the police failed to inform him "of his right to
additional tests by a professional of his choosing,"26 and the State shifted the
burden of proof in its closing argument.
i. Sufficiency of the Evidence
As addressed in Section I of this opinion, there was sufficient evidence for a
rational fact-finder to convict Greenhalgh beyond a reasonable doubt.
ii. Informed Consent
Our Supreme Court has observed that officers "may obtain a blood alcohol
test pursuant to a warrant regardless of the implied consent statute."27 Police are
required to notify individuals of their right to have separate testing when law
enforcement chooses to exercise a blood draw through the implied consent
statute, as opposed to a search warrant.28 Here, it is undisputed that law
enforcement obtained a warrant for Greenhalgh's blood, thus, his argument fails.
iii. Burden Shifting
A prosecutor may commit misconduct by arguing that the defense failed to
present witnesses or explain the factual basis of the charges, or asserting the jury
should find the defendant guilty because he did not present evidence to support
26 Statement of Additional Grounds for Review at 1.
27City of Seattle v. St. John, 166 Wash. 2d 941, 946, 215 P.3d 194 (2009).
28 State v. Turpin, 94 Wash. 2d 820, 824-25, 620 P.2d 990(1980); State v.
Morales, 173 Wash. 2d 560, 569, 269 P.3d 263(2012).
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No. 75904-3-1/12
his theory of defense.29 But merely mentioning "that defense evidence is lacking
does not constitute prosecutorial misconduct or shift the burden of proof to the
defense."39
Here, Greenhalgh cites various portions of the State's closing argument in
which it walked the jury through the jury instructions. The State did not argue the
defense failed to present witnesses, or explain the factual basis of the charges, or
ask the jury to find him guilty because he did not present evidence to support his
theory of defense. His arguments fail.
We affirm.
WE CONCUR:
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29 State v. Jackson, 150 Wash. App. 877, 885, 209 P.3d 553(2009).
39 Id. at 885-86.
12