State Of Washington v. Jonathan Sutley Rhoads ( 2020 )

Filed
Washington State
Court of Appeals
Division Two
June 16, 2020
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
STATE OF WASHINGTON, No. 52629-8-II
Respondent,
v. UNPUBLISHED OPINION
JONATHAN LEE SUTLEY RHOADS,
Appellant.
MAXA, J. – Jonathan Sutley Rhoads1 appeals his conviction of attempting to elude a
pursuing police vehicle and an interest accrual provision for the legal financial obligations
(LFOs) in his judgment and sentence. His conviction arose from an incident in which he failed
to stop during a pursuit after a deputy sheriff observed him speeding.
We hold that (1) the prosecutor’s initial misstatement regarding the length of the pursuit
did not constitute misconduct because he corrected the misstatement on rebuttal; (2) the
prosecutor’s statement regarding the standard for determining a knowing violation was improper,
but Sutley Rhoads waived his challenge because he did not object and an instruction would have
cured any prejudice; and (3) the interest accrual provision should be stricken. Accordingly, we
1
The record is inconsistent as to whether the defendant’s last name is hyphenated. This opinion
uses “Sutley Rhoads” because that is how it appears in his briefing and the trial court’s judgment
and sentence.
No. 52629-8-II
affirm Sutley Rhoads’s conviction, but we remand for the trial court to strike the interest accrual
provision from the judgment and sentence.
FACTS
Initial Incident
Shortly before 10:00 PM on June 28, 2018, Thurston County Deputy Sheriff Brett
Campbell measured the speed of an oncoming vehicle driven by Sutley Rhoads at 18 miles per
hour over the posted speed limit. Campbell changed his direction and drove after the vehicle.
Sutley Rhoads turned onto a side road and Campbell followed. Sutley Rhoads turned
again at another intersection without stopping for a posted stop sign. At some point during the
pursuit, Campbell activated his overhead lights and later activated his siren. Campbell
eventually caught up to Sutley Rhoads, matching the vehicle’s speed at 60 mph in a 35 mph
zone. Sutley Rhoads continued at a high rate of speed with Campbell in pursuit. Sutley Rhoads
finally slowed down and pulled over. Campbell remained with his vehicle and waited for backup
to arrive. He then arrested Sutley Rhoads and read him his constitutional rights.
The State charged Sutley Rhoads with attempting to elude a pursuing police vehicle.
Trial and Closing Argument
At trial, the main issue was whether Sutley Rhoads stopped his vehicle quickly enough.
Witnesses testified to the facts stated above. Campbell testified that the “beginning of the stop”
occurred at 9:59 PM and that Sutley Rhoads was read his Miranda2 rights at 10:08 PM. 1 Report
of Proceedings (RP) at 156.
2
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
2
No. 52629-8-II
One of the elements in the to-convict instruction for attempting to elude was that “the
defendant willfully failed or refused to immediately bring the vehicle to a stop after being
signaled to stop.” Clerk’s Papers (CP) at 34. Another instruction stated, “A person acts willfully
as to a particular fact when he acts knowingly as to that fact.” CP at 32. Instruction 6, which
addressed knowledge, included the following statement: “If a person has information that would
lead a reasonable person in the same situation to believe that a fact exists, the jury is permitted
but not required to find that he or she acted with knowledge of that fact.” CP at 32. Sutley
Rhoads did not object to instruction 6.
During closing argument, in arguing that Sutley Rhoads did not immediately stop his
vehicle, the prosecutor stated:
We know when this stop happened. It started at 9:59 and ended at 10:08. It was
nine minutes. We are not talking ten seconds. We are not talking 30 seconds.
We are talking nine minutes of driving through Thurston County, running stop
signs, doubling the speed limit, driving in other lanes, driving off the roadway.
2 RP at 315. Sutley Rhoads did not object to this statement.
In his closing argument, Sutley Rhoads constructed a timeline of the incident using map
distances and speeds at which the vehicles were traveling. Based on this analysis, Sutley Rhoads
argued that “this did not take nine minutes.” 2 RP at 321. Instead, he suggested that a minute or
less had passed between the point he turned onto the first side road and the point where he
stopped his vehicle.
During rebuttal, the prosecutor responded, “The defense is pointing to the time frame.
The officer never said the pursuit lasted nine minutes. He said he flipped on his radar detector,
nine minutes later, he read him his Miranda warnings. A lot of stuff happened in between.” 2
RP at 327.
3
No. 52629-8-II
The prosecutor also addressed the knowledge requirement. He quoted the language from
instruction 6 about the knowledge of a reasonable person. In explaining what this instruction
meant, the prosecutor stated:
[Y]ou are allowed to consider what would lead a reasonable person in a same
situation to know. So we don’t have to try to climb into someone else’s head and
say what does that person know. That would be impossible. What it does is says,
hey, would a reasonable person know this?
2 RP at 308. Sutley Rhoads did not object to this statement.
Conviction and Sentence
The jury found Sutley Rhoads guilty of attempting to elude a pursuing police vehicle. As
part of the sentence, the trial court imposed a $500 crime victim penalty assessment. The
judgment and sentence provided that the LFOs would bear interest until paid in full.
Sutley Rhoads appeals his conviction and the LFO interest accrual provision.
ANALYSIS
A. PROSECUTORIAL MISCONDUCT
Sutley Rhoads argues that the prosecutor committed misconduct during closing argument
when he argued both that Campbell pursued Sutley Rhoads for nine minutes and that the jury
could find Sutley Rhoads had the required knowledge by applying a reasonable person standard.
We conclude that (1) the first statement did not constitute misconduct because the prosecutor
corrected his initial misstatement; and (2) the second statement was improper, but Sutley Rhoads
waived his challenge.
1. Legal Principles
“Prosecutorial misconduct may deprive a defendant of his constitutional right to a fair
trial.” In re Pers. Restraint of Glasmann, 175 Wash. 2d 696, 703-04, 286 P.3d 673 (2012). To
establish prosecutorial misconduct during closing argument, a defendant must show that the
4
No. 52629-8-II
prosecuting attorney’s statements were both improper and prejudicial. State v. Allen, 182 Wash. 2d
364, 373, 341 P.3d 268 (2015). We must consider the prosecutor’s conduct in the context of the
record and all the circumstances at trial. State v. Thorgerson, 172 Wash. 2d 438, 442, 258 P.3d 43
(2011).
During closing argument, it is improper for a prosecutor to present facts not admitted as
evidence during the trial. Glasmann, 175 Wash. 2d at 705. It also is improper for the prosecutor to
misstate the evidence presented at trial. See State v. Walker, 182 Wash. 2d 463, 478, 341 P.3d 976
(2015). However, during closing argument, the prosecutor is given wide latitude to assert
reasonable inferences from the evidence. Glasmann, 175 Wash. 2d at 704. In addition, “[a]
prosecuting attorney commits misconduct by misstating the law.” Allen, 182 Wash. 2d at 373.
Here, Sutley Rhoads did not object to the challenged statements. When the defendant
fails to object to the prosecutor’s statements, he or she “is deemed to have waived any error,
unless the prosecutor’s misconduct was so flagrant and ill intentioned that an instruction could
not have cured the resulting prejudice.” State v. Emery, 174 Wash. 2d 741, 760-61, 278 P.3d 653
(2012). The defendant must show that (1) no curative instruction would have eliminated the
prejudicial effect, and (2) the prejudice had a substantial likelihood of affecting the verdict. Id.
at 761. “Reviewing courts should focus less on whether the prosecutor’s misconduct was
flagrant or ill intentioned and more on whether the resulting prejudice could have been cured.”
Id. at 762.
2. Misstating the Evidence
Sutley Rhoads argues that the prosecutor committed misconduct by asserting that the
pursuit was nine minutes long. As Sutley Rhoads notes, the evidence showed that the entire
5
No. 52629-8-II
incident, not the pursuit, lasted nine minutes. Campbell testified that the “beginning of the stop”
occurred at 9:59 PM and that he read Sutley Rhoads his constitutional rights at 10:08 PM.
The prosecutor initially stated that the pursuit itself lasted nine minutes: “We are talking
nine minutes of driving.” 2 RP at 315 (emphasis added). This statement was inconsistent with
the evidence because Campbell testified that the entire incident took nine minutes, including the
time he waited in his vehicle for backup after Sutley Rhoads pulled over and before arresting
him. Therefore, Campbell could not have been driving in pursuit of Sutley Rhoads for nine
minutes.
However, Sutley Rhoads challenged this statement during his closing argument. And the
prosecutor clarified his misstatement on rebuttal: “The officer never said the pursuit lasted nine
minutes. He said he flipped on his radar detector, nine minutes later, he read him his Miranda
warnings.” 2 RP at 327 (emphasis added). This statement correctly characterized the evidence.
Therefore, considering the closing arguments in their entirety, we conclude that the prosecutor
did not commit misconduct.
We hold that Sutley Rhoads’s prosecutorial misconduct claim on this basis fails.
3. Misstating the Legal Standard for “Knowledge”
Sutley Rhoads argues that the prosecutor committed misconduct by suggesting that the
jury could find that Sutley Rhoads had the required knowledge by applying a reasonable person
standard.
A person attempts to elude a police vehicle if he or she drives in a reckless manner and
willfully fails to immediately stop his or her vehicle after a uniformed police officer provides a
visual or audible signal. RCW 46.61.024(1). In this context, willfulness is identical to
6
No. 52629-8-II
knowledge. State v. Flora, 160 Wash. App. 549, 553, 249 P.3d 188 (2011). The trial court
instructed the jury that a person acts willfully when he acts knowingly.
RCW 9A.08.010(1)(b)(ii) states that a person acts knowingly when “he or she has
information which would lead a reasonable person in the same situation to believe” that a fact
exists. When knowledge is an element of a crime, “the jury must find actual knowledge but may
make such a finding with circumstantial evidence.” Allen, 182 Wash. 2d at 374. As a result, it is
improper for a prosecutor to argue that the State need not prove actual knowledge and must only
show that a reasonable person would have known. Id. at 375. In instruction 6, the trial court
instructed the jury regarding the knowledge requirement.
During closing argument, the prosecutor stated: “[W]e don’t have to try to climb into
someone else’s head and say what does that person know. That would be impossible. What it
does is says, hey, would a reasonable person know this?” 2 RP at 308 (emphasis added). We
agree with Sutley Rhoads that this statement improperly suggests that the State needed to prove
only what a reasonable person would have known, not what Sutley Rhoads actually knew. The
prosecutor should have informed the jury that the State must prove that Sutley Rhoads had actual
knowledge, but that actual knowledge can be established by considering what a reasonable
person would know.3
Even though the prosecutor’s statements were improper, Sutley Rhoads’s failure to object
means that he must demonstrate that no curative instruction would have eliminated any
3
Sutley Rhoads also challenges another statement the prosecutor made in rebuttal: “The law is
not that you have to know his intent. That’s not the law. This is the law. We can’t get inside of
his mind.” 2 RP at 328. However, the context of the statement clearly shows that the prosecutor
was addressing a separate intent requirement, not the knowledge requirement. He was directly
responding to Sutley Rhoads’s contention that the State had to prove his intent. Therefore, we
conclude that this statement did not misstate the knowledge requirement.
7
No. 52629-8-II
prejudicial effect. Emery, 174 Wash. 2d at 761. But here, the court could have instructed the jury
to disregard such statements and directed the jury’s attention to the proper standard for
knowledge contained in instruction 6. Therefore, we conclude that Sutley Rhoads waived his
challenge because any possible prejudice could have been cured by an instruction to the jury.4
Sutley Rhoads argues that a reference to instruction 6 could not have cured the
prosecutor’s misstatements in this case because the instruction was an incorrect statement of law.
However, this instruction tracks the language of WPIC 10.02. 11 WASHINGTON PRACTICE:
WASHINGTON PATTERN JURY INSTRUCTIONS: CRIMINAL 10.02 (4th ed. 2016). In addition, the
court in Allen expressly stated that an instruction with identical language as instruction 6
“correctly stated the law regarding ‘knowledge.’ ” 182 Wash. 2d at 372. Therefore, we reject
Sutley Rhoads’s argument.
We hold that Sutley Rhoads’s prosecutorial misconduct claim on this basis fails.
B. INTEREST ON LFOS
Sutley Rhoads argues, and the State concedes, that we should remand for the trial court to
strike the interest accrual provision in his judgment and sentence. We agree.
In 2018, the legislature amended RCW 10.82.090, which now states that no interest will
accrue on nonrestitution LFOs after June 7, 2018. RCW 10.82.090(1). Therefore, we accept the
State’s concession and hold that the interest accrual provision should be stricken.
4
In State v. Jones, Division Three of this court summarily held that referring the jury to the
knowledge instruction previously given to the jury could not have cured the prejudice resulting
from a similar closing argument. No. 36795-9-III, slip op. (Wash. Ct. App. May 19, 2020),
http://www.courts.wa.gov/opinions/pdf/367959_pub.pdf. We disagree.
8
No. 52629-8-II
CONCLUSION
We affirm Sutley Rhoads’s conviction, but we remand for the trial court to strike the
interest accrual provision from the judgment and sentence.
A majority of the panel having determined that this opinion will not be printed in the
Washington Appellate Reports, but will be filed for public record in accordance with RCW
2.06.040, it is so ordered.
MAXA, J.
We concur:
LEE, C.J.
CRUSER, J.
9