State Of Washington v. Donnie J. Greer ( 2016 )

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON, No. 73323-1-1
Respondent, DIVISION ONE
v. UNPUBLISHED OPINION
DONNIE JAMAAL GREER,
Appellant. FILED: August 1,2016
Appelwick, J. — Greer appeals his conviction for attempting to elude a
pursuing police vehicle. He contends the trial court abused its discretion when it
refused to instruct the jury on the lesser included offense of failure to obey an
officer. We affirm.
FACTS
On August 22, 2013, Detective Aaron Thompson1 and Deputy Christopher
Przygocki2 were working as plain clothes officers in Burien. Detective Thompson
was wearing a t-shirt, jeans, and a ball cap. Deputy Przygocki was wearing a t-
shirt and jeans. Detective Thompson and Deputy Przygocki were in an
1 Detective Thompson was a deputy in the King County Sheriffs
Department at the time of trial.
2 Deputy Przygocki was a detective in the King County Sheriffs
Department at the time of trial,
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unmarked Dodge Caravan minivan. The van is equipped with a siren and lights
inside the front window, but it does not have the light bar across the roof like
typical police vehicles. The officers were parked in a grocery store parking lot
when they observed Donnie Greer. Based on their observations, the officers
decided to follow Greer and perform an investigative stop. Both officers put on
their "throw-over" vests, which indicate that they are law enforcement officers.
Greer drove his vehicle out of the parking lot and the officers followed.
After briefly following Greer, Detective Thompson activated the emergency lights
on the unmarked car. Greer immediately pulled to the side of the road and
stopped. The officers stopped about a car length behind Greer. Deputy
Przygocki got out of the passenger seat and walked toward Greer's car. Deputy
Przygocki had a gun with him, and he may have drawn it as he approached
Greer's vehicle. As Deputy Przygocki approached, Greer drove off. The officers
activated their siren, followed in the unmarked vehicle, and radioed that a vehicle
was fleeing from a traffic stop. While the officers were following Greer, Greer
was speeding and failed to stop at stop signs.
King County Sheriff Deputy James Price was working patrol that day and
went to assist the other officers. Deputy Price was wearing a police uniform, and
his badge was visible. He was driving a Ford Crown Victoria with sheriff
markings on the side, dual spotlights, and overhead lights. Deputy Price had
stopped at the intersection of Southwest 108th and 4th Avenue Southwest.
Deputy Price moved his police vehicle slightly into the intersection and activated
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his lights in order to get Greer to stop when Greer reached that intersection. But,
Greer did not stop at the intersection. Instead, Greer turned onto 108th and
proceeded. Greer and the other officers drove past Deputy Price while Deputy
Price's lights were activated. When Greer passed Deputy Price's vehicle, his car
came within five to seven feet of Deputy Price's vehicle. Deputy Price made a U-
turn and fell into pursuit behind Deputy Thompson and Detective Przygocki.
Pursuant to department policy that a marked patrol vehicle should be the
lead vehicle in a pursuit when possible, Deputy Price caught up and took the
lead. After a 3.9 mile pursuit that took about four or five minutes in total, Greer
turned into a Park and Ride. Once Greer's vehicle was stopped in the Park and
Ride, Greer cooperated and went willingly into custody.
On February 26, 2014 Greer was charged with attempting to elude a
pursuing police vehicle contrary to RCW 46.61.024. Prior to trial, Greer
requested jury instructions for the lesser included offense of failure to obey a
police officer pursuant to RCW 46.61.022. The State objected to the instruction,
noting that the difference between attempting to elude and failure to obey is that
to be convicted of attempting to elude, the defendant had to be driving in a
reckless manner. The State maintained that all of the evidence supported that
Greer was driving in a reckless manner. Greer argued that if the State failed to
prove the reckless element of attempting to elude, the jury should be given the
option to convict Greer of failure to obey a police officer.
No. 73323-1-1/4
At trial, Greer testified that he did not know that Detective Thompson and
Deputy Pryzgocki were police officers. He testified that because he saw a
"regular person" approaching him with a gun, he was scared and took off. He
stated that he drove to the Park and Ride, because he knew there were cameras
there and he thought he would be safe. He testified that he did not notice there
was a sheriff behind him until right before he arrived at the Park and Ride. He
testified that at that point, he slowed down, came to a complete stop, and put his
hands in the air.
After hearing all of the testimony, the trial court found that there was no
factual basis for the lesser included offense instruction, because the evidence
showed that Greer was driving in a reckless manner. Consequently, the court
provided jury instructions for only the attempting to elude charge. The jury found
Greer guilty of attempting to elude a pursuing police vehicle.
Greer appeals.
DISCUSSION
Greer argues that the trial court erred, because he was entitled to have
the jury instructed on the lesser included offense of failure to obey an officer. He
further asserts that if the State prevails in this appeal, this court should decline to
impose appellate costs on him because he is indigent.
I. Lesser Included Offense Instruction
The right to a lesser included offense instruction is statutory, codified at
RCW 10.61.006. State v. Condon, 182 Wash. 2d 307, 316, 343 P.3d 357 (2015).
No. 73323-1-1/5
In State v. Workman, 90 Wash. 2d 443, 447-48, 584 P.2d 382 (1978), the
Washington Supreme Court set forth a two-prong test to determine whether a
party is entitled to an instruction on a lesser included offense under RCW
10.61.006. Under the first prong of the test (the legal prong), the court asks
whether the lesser included offense consists solely of elements that are
necessary to conviction of the greater, charged offense. Id. Under the second
(factual) prong, the court asks whether the evidence presented in the case
supports an inference that only the lesser offense was committed, to the
exclusion of the greater, charged offense, jd. at 448. The requesting party is
entitled to the lesser included offense instruction when the answer to both
questions is yes. ]d_, at 447.
Below, the State conceded that the legal prong of the Workman test was
satisfied. And, the trial court agreed that the legal prong was satisfied.
Therefore, our focus is strictly on the factual component of the Workman test.
The purpose of the factual test is to ensure that there is evidence to support the
giving of the requested instruction. State v. Fernandez-Medina, 141 Wash. 2d 448,
455, 6 P.3d 1150 (2000). When determining ifthe evidence at trial was sufficient
to support the giving of an instruction, the appellate court is to view the
supporting evidence in the light most favorable to the party that requested the
instruction. ]d. at 455-56. A trial court's refusal to give instructions to a jury, if
based on a factual dispute, is reviewable for abuse of discretion. State v.
Walker, 136 Wash. 2d 767, 771-72, 966 P.2d 883 (1998).
No. 73323-1-1/6
The attempting to elude a police vehicle statute, RCW 46.61.024(1),
states,
Any driver of a motor vehicle who willfully fails or refuses to
immediately bring his or her vehicle to a stop and who drives his or
her vehicle in a reckless manner while attempting to elude a
pursuing police vehicle, after being given a visual or audible signal
to bring the vehicle to a stop, shall be guilty of a class C felony.
The signal given by the police officer may be by hand, voice,
emergency light, or siren. The officer giving such a signal shall be
in uniform and the vehicle shall be equipped with lights and sirens.
The failure to obey a police officer statute, RCW 46.61.022, provides:
Any person who willfully fails to stop when requested or signaled to
do so by a person reasonably identifiable as a law enforcement
officer... is guilty of a misdemeanor.
To drive a vehicle "in a reckless manner" for purposes of the attempting to
elude statute means driving in a rash or heedless manner, indifferent to the
consequences. 11A Washington Practice: Washington Pattern Jury
Instructions: Criminal 90.05, at 255 (3d ed. 2008); State v. Ridglev, 141 Wn.
App. 771, 781, 174 P.3d 105 (2007). Greer argues that whether the evidence
supports an inference that he did not drive in a reckless manner requires the
court to pay close attention to the sequence of events. He notes that it was not
until Deputy Price joined the pursuit that an indisputably uniformed police officer
signaled Greer to stop. Because of this, he claims the relevant question is
whether the evidence supports an inference that Greer did not drive in a reckless
manner after Deputy Price signaled for him to stop. Greer implies that this signal
occurred only after Deputy Price took over as the lead vehicle rather than after
he initially drove past Deputy Price's marked vehicle with its lights flashing.
No. 73323-1-1/7
Even accepting this assertion and disregarding the manner of Greer's
driving between the initial stop and when Deputy Price took over as the lead
vehicle, the evidence supports that Greer drove in a reckless manner. Deputy
Price took over as the lead vehicle at South 102nd and 1st Avenue South. When
Deputy Price took over as the lead vehicle, Greer was ahead of him by about five
to six car lengths. At this point, Greer was traveling about 25 miles per hour
(MPH) through a curvy stretch of road. After the curvy portion of the road, Greer
drove through a stop sign at an intersection without stopping. Deputy Price
testified that when he finally caught up to Greer, both cars were travelling at 65
MPH on Myers Way. Deputy Thompson testified that Greer was driving 50 MPH
on that road. Deputy Price testified that he believed that speed limit on Myers
Way was either 40 or 45 MPH. As Greer approached the turn for the Park and
Ride, he drove in the wrong lane of traffic on Myers Way before making the turn
into the Park and Ride driveway. Greer made the turn at an elevated rate of
speed. Once they were in the Park and Ride area, Greer slowed to ten or fifteen
MPH, but was not preparing to come to a stop. Consequently, Deputy Price
deliberately made contact with Greer's vehicle to get him to stop. At that point,
Greer cooperated with the police and went willingly into custody.
Greer also testified as to his version of the events at trial. Greer testified
that he first noticed that there was a sheriff behind him when he was driving
down Myers Way—almost at the Park and Ride. He testified that he did not pull
over right away and that he waited until he reached the Park and Ride to pull
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over. He testified that he turned into the Park and Ride driveway, then slowed
down all of the way, came to a complete stop, and put his hands in the air. He
testified that Deputy Price hit the side of his car when he was already stopped.
On appeal, Greer argues that his speeding and failure to stop at the stop
sign after Deputy Price took over as the lead vehicle was not reckless, because
he did not pose any danger to others nearby. And, Greer emphasizes that there
were no other cars on the roadway when he entered the oncoming lane of traffic
before turning into the Park and Ride. Greer fails to cite authority to support his
implicit assertion that driving in a reckless manner for purposes of the attempting
to elude statute requires endangering others. In fact, the law is clear that
disregard for the safety of others is not an element of the standard. See State v.
Roaaenkamp, 153 Wash. 2d 614, 618, 106 P.3d 196 (2005) (rejecting defendant's
argument that "in a reckless manner" as it appears in the vehicular homicide
statute is defined by the willful or wanton disregard for the safety of persons or
property and holding that it means driving in a rash or heedless manner,
indifferent to the consequences); Ridglev, 141 Wash. App. at 781 (holding that the
"reckless manner" standard of the attempting to elude statute takes the same
meaning as the "reckless manner" standard of the vehicular homicide and
vehicular assault statutes).3
3 Greer compares the facts in his case to those in State v. Galleqos, 73
Wash. App. 644, 653, 871 P.2d 621 (1994), in which the court held that a lesser
included jury instruction for refusal to cooperate was not warranted. He suggests
that because the manner of his driving was less egregious than the defendant's
driving in Galleqos, that he is entitled to the lesser included instruction for failure
to obey. But, Galleqos is not instructive. As Greer points out, the Galleqos court
was considering an older version of the attempting to elude statute that required
8
No. 73323-1-1/9
A trial court must consider all of the evidence that is presented at trial
when it is deciding whether an instruction should be given. Fernandez-Medina,
141 Wash. 2d at 456. And, the State's unrebutted evidence—that Greer was
speeding, that he failed to stop at a stop sign, and that he drove in the oncoming
lane of traffic—clearly supports the inference that Greer was driving in a rash or
heedless manner, indifferent to the consequences. There is no requirement that
a lesser included instruction be given solely because the jury might simply
disbelieve the State's evidence. State v. Rodriguez, 48 Wash. App. 815, 820, 740
P.2d 904 (1987). Consequently, the trial court did not abuse its discretion when
it declined to give the lesser included jury instruction for failure to obey an officer.
II. Appellate Costs
Greer asserts that this court should not award the State costs on appeal if
the State prevails. Greer's argument relates to this court's recent decision in
State v. Sinclair, 192 Wash. App. 380, 367 P.3d 612 (2016). The State did not
respond to this assertion.
We adhere to Sinclair. Greer was found to be indigent prior to trial. He
was represented by an appointed attorney at trial. The superior court entered an
order authorizing Greer's appeal in forma pauperis, finding that Greer could not
contribute to the cost of appellate review. Once indigency is established, the
Rules of Appellate Procedure establish a presumption of continued indigency
it to consider whether the defendant was driving with wanton and willful disregard
for others—not whether the defendant was driving in a reckless manner, jd. at
648; Former RCW 46.61.024 (1983).
No. 73323-1-1/10
throughout review. Sinclair. 192 Wash. App. at 393; RAP 15.2(f). The State has
provided no factual basis to overcome the continuing presumption of indigency.
Consistent with Sinclair, we conclude that no costs should be awarded to the
State on appeal.
We affirm.
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WE CONCUR:
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