State Of Washington v. Kevin Brewer ( 2021 )

IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON
STATE OF WASHINGTON, ) No. 79442-6-I
)
Respondent, ) DIVISION ONE
)
v. ) UNPUBLISHED OPINION
)
KEVIN WAYNE BREWER, )
)
Appellant. )
)
ANDRUS, A.C.J. — Kevin Wayne Brewer appeals his conviction for vehicular
homicide arising out of the death of a bicyclist. He contends the trial court erred in
admitting evidence of a corrective lens restriction on his driver’s license and
demonstrative evidence reconstructing the incident. He further contends there
was insufficient evidence to support his conviction because the State failed to show
he acted with disregard for the safety of others. Finally, he argues the trial court
erred twice at sentencing; first, by considering facts outside the record for the
purpose of sentencing and second, by ordering him to pay discretionary legal
financial obligations (LFOs) without first inquiring after his ability to pay them.
We affirm Brewer’s conviction, but remand for the sentencing court to make
an individualized inquiry into Brewer’s ability to pay discretionary LFOs and for the
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court to determine the effect, if any, of the Supreme Court’s decision in State v.
Blake, __ Wn.2d __, 2021 WL 72832 (Feb. 25, 2021). 1
FACTS
Shortly after 4 p.m. on September 21, 2016, Derek Blaylock was bicycling
from the Northgate Transit Center in Seattle, Washington, to his son’s elementary
school. He was traveling southbound on First Avenue Northeast and was wearing
a bright yellow cycling jersey, a black backpack and his helmet. The skies were
clear and the weather was sunny.
Kevin Brewer was likewise traveling southbound on First Avenue Northeast,
driving his Ford F-350 pickup truck home from the store. Brewer stopped at the
traffic light at the intersection of First Avenue Northeast and Northeast 100th
Street. When the light turned green, his truck did not move. After waiting for a
long pause, the driver directly behind Brewer, Rachel Hagmann, honked her horn.
After another short delay, Brewer began to drive again.
As Brewer caught up to Blaylock, his truck drifted or swerved to the right.
Brewer crossed over the fog line and a three-foot wide shoulder and then drove
the right front and rear wheels of his truck up onto a jersey barrier 2 running parallel
to the roadway. From the visible damage on the jersey barrier, officers estimated
Brewer’s truck traveled at least 15 inches up the 30-inch tall jersey barrier, creating
a 13 degree tilt and a 23 percent slope for the vehicle.
1
On March 1, 2021, Brewer filed a motion for leave to add an assignment of error relating to his
criminal history score based on Blake and to file supplemental briefing on the issue. We see no
need for supplemental briefing and will remand the case for resentencing. We therefore deny
Brewer’s motion.
2
The jersey barriers in that location were 12.5 feet long, 30 inches high, and set along the road to
keep cars from leaving the roadway and to protect construction activities on the other side of the
barriers.
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As Brewer drove up the barrier, he struck Blaylock, pinning his body and
bicycle between the right side of the truck and the concrete barrier. At some point,
Blaylock was dislodged from his bicycle and fell to the pavement. Witnesses
testified the truck then “crashed down, and it wiggled back and forth.” Investigating
officers testified that this movement occurred when Brewer’s right rear truck tire
ran over Blaylock’s body. Blaylock died of blunt force injuries to his trunk and
extremities.
Brewer did not stop despite Hagmann honking her horn again to get his
attention. Witnesses testified that Brewer drove away erratically, speeding up and
slowing down about three or four times. Brewer drove several blocks to his home
on First Avenue Northeast, where he parked his truck in his driveway. Claudine
Fisher, who was driving in the opposite direction on First Avenue Northeast, toward
the collision, testified that Brewer turned so sharply in front of her into his driveway
that she nearly “T-boned” the truck.
Hagmann followed Brewer to his home and approached him as he got out
of his truck. Brewer told her that he was okay, to which she replied, “the guy you
hit isn’t.” When Hagmann told him he had hit a bicyclist, Brewer walked back to
the scene of the accident.
Officer Jordan Wallace, the first officer to arrive at the scene, interviewed
witnesses and Brewer. When Brewer identified himself as the driver involved in
the accident, Officer Wallace asked to see his driver’s license, proof of insurance,
and vehicle registration. Brewer gave the officer his driver’s license and walked
back to his truck to retrieve the other documents.
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Officer Wallace gave Brewer’s license to Drug Recognition Expert (DRE)
Detective Michael Lewis, who arrived on scene to interview Brewer. Detective
Lewis noticed the license had a restriction requiring Brewer to wear corrective
lenses when operating a motor vehicle. When Detective Lewis asked Brewer
about the restriction, Brewer responded that “he used to wear contacts, but he now
wears glasses, but that he only wore them at night to drive.”
Detective Lewis testified that during his interview with Brewer, he was lucid,
responded appropriately to his questions, and was not “suffering from any sort of
altered mental status.” After running several field sobriety tests, Detective Lewis
concluded that Brewer was not impaired by drugs or alcohol at that time.
The State charged Brewer with vehicular homicide pursuant to RCW
46.61.520(1)(c) and felony hit and run pursuant to RCW 46.52.020(1), (4)(a). The
jury convicted Brewer of vehicular homicide but was unable to reach a verdict on
the felony hit and run charge. Based on his offender score of six, Brewer’s
standard sentencing range was 57-75 months of imprisonment. The court
imposed a high-end sentence of 75 months and ordered Brewer to pay $472.50 in
court costs and a $50 fine pursuant to RCW 46.64.055(1).
ANALYSIS
Brewer raises five issues in this appeal. First, he challenges, as hearsay,
evidence that his driver’s license contains a restriction requiring him to wear
corrective lenses while driving. Second, he argues the court erred in admitting
demonstrative “time and distance analysis” evidence, contending the
reconstruction was substantially dissimilar from the accident. Third, he maintains
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the State failed to prove he acted with disregard for the safety of others, an element
of the crime of vehicular homicide. Fourth, he maintains the trial court improperly
relied on Brewer’s drug addiction, information that was never admitted,
acknowledged, or proved when determining his sentence. Finally, he asserts the
court erred when it ordered him to pay discretionary legal financial obligations
without first engaging in an independent inquiry to determine his ability to pay the
discretionary fees. We address each of these arguments in turn.
A. Hearsay Evidence
Brewer argues the trial court erred in admitting evidence of the corrective
lens restriction on his driver’s license. He contends the Department of Licensing
(DOL) requirement that he wear corrective lenses when driving, as indicated on
his driver’s license, renders the license inadmissible as a public record under RCW
5.44.040 because the restriction is not factual, but involves the exercise of
judgment or discretion.
We review a trial court’s interpretation of an evidentiary rule de novo as a
question of law and review the decision to admit evidence for an abuse of
discretion. State v. Gunderson, 181 Wn.2d 916, 921-22, 337 P.3d 1090 (2014).
An abuse of discretion occurs when a trial court’s decision is manifestly
unreasonable or based on untenable grounds or reasons, such as a
misconstruction of a rule. Id. at 922.
“Hearsay” is an out-of-court statement “offered in evidence to prove the truth
of the matter asserted.” ER 801(c). Hearsay is inadmissible unless an exception
applies. ER 802. One such exception is set out in former RCW 5.44.040 (1991).
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State v. Monson, 113 Wn.2d 833, 837, 784 P.2d 485 (1989). This public records
statute provides: 3
Copies of all records and documents on record or on file in the offices
of the various departments of the United States and of this state . .
.when duly certified by the respective officers having by the law of
custody thereof . . . shall be admitted in evidence in the court of this
state.
Our Supreme Court has held that not every public record is automatically
admissible:
In order to be admissible, a report or document prepared by a public
official must contain facts and not conclusions involving the exercise
of judgment or discretion or the expression of opinion. The subject
matter must relate to facts which are of a public nature, it must be
retained for the benefit of the public and there must be express
statutory authority to compile the report.
Id. at 839 (quoting Steel v. Johnson, 9 Wn.2d 347, 358, 115 P.2d 145 (1941)).
This court has previously held that a certified copy of a defendant’s driver’s
license is admissible as a public record because it is “prepared by a public official
and contains facts of a public nature” and “does not contain conclusions involving
the exercise of judgment or discretion or the expression of opinion.” State v.
Bajardi, 3 Wn. App. 2d 726, 731-32, 418 P.3d 164 (2018). Brewer maintains
Bajardi is distinguishable because the defendant there challenged the admissibility
of a photograph on her driver’s license, offered to establish the defendant’s
identity, and did not challenge a government-imposed restriction on driving
privileges.
3
RCW 5.44.040 was amended in 2019 to extend the exception to documents on record with any
federally recognized Indian tribe. LAWS OF 2019, ch. 39, § 2. It also changed the verb phrase from
“shall be admitted” to “must be admitted.” Id. These changes do not affect the analysis here.
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Although we agree this case is different than the issue presented in Bajardi,
we nevertheless conclude that a DOL license restriction falls within the scope of
RCW 5.44.040 and is admissible because the information meets the Monson test.
The restriction is factual in nature, is maintained for the benefit of the public, and
is imposed pursuant to DOL’s express statutory authority.
First, the DOL has express statutory authority to set driving privilege
restrictions. Under RCW 46.01.040(12), the DOL has the authority to regulate the
issuance of driver’s licenses under chapter 46.20 RCW. Anyone applying for a
new or renewed license “must successfully pass a driver licensing examination to
qualify for a driver’s license.” RCW 46.20.120. The director of the DOL is
authorized to prescribe the content of the licensing examination, which “shall
include . . . a test of the applicant’s eyesight and ability to see, understand, and
follow highway signs regulating, warning, and directing traffic.” RCW
46.20.130(1)(a) (emphasis added); WAC 308-104-010(1). If the department has
reason to believe that a person has a physical condition that may impact their
ability to safely drive a motor vehicle, “the department may . . . issue a restricted
driver’s license to the person.” RCW 46.20.041(2)(c). WAC 308-104-010 details
the vision standards required for an applicant to obtain a license. To obtain a
license, an applicant must demonstrate visual acuity no worse than 20/40 Snellen 4
for both eyes, either corrected or uncorrected. The DOL thus has the authority to
4
“The first number in the familiar ‘Snellen score’ for visual acuity refers to the distance between the
viewer and the visual target, typically 20 feet. The second number corresponds to the distance at
which a person with normal eyesight could distinguish letters of the size that the viewer can
distinguish at 20 feet.” Fey v. State, 174 Wn. App. 435, 442 n.2, 300 P.3d 435 (2013).
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No. 79442-6-I/8
impose a corrective lens restriction on any driver whose visual acuity does not
meet this test requirement uncorrected.
Second, the DOL maintains information regarding a driver’s need for
corrective lenses for the benefit of the public. Under RCW 46.20.041(2)(c)(iii),
DOL restrictions are permissible when “determined by the department to be
appropriate to assure the licensee’s safe operation of a motor vehicle.” Operating
a motor vehicle in violation of restrictions imposed in a restricted license constitutes
a traffic violation. RCW 46.20.041(5). See also WAC 308-104-160(52) (violating
any license restriction defined by RCW 46.20.041 constitutes a moving violation).
Finally, a license restriction relating to a driver’s visual acuity is a fact “of a
public nature.” Although the Federal Driver’s Privacy Protection Act, of 1994, 18
U.S.C. § 2721(a) prohibits a state department of motor vehicles from publicly
disclosing “personal information,” defined in 18 U.S.C. § 2725(3) to include medical
or disability information, a disclosure is authorized by law enforcement in carrying
out its functions, or “in connection with matters of motor vehicle or driver safety or
theft.” 18 U.S.C. § 2721(b)(1), (2). The public has an interest in having such
driving restriction information available when driver safety is at issue. Here, the
police asked Brewer about the restriction on his driver’s license because he was
involved in a fatal driving accident and as a part of an investigation into Brewer’s
criminal culpability for the death. Brewer’s license restriction is, in this context, a
fact of “a public nature.”
Brewer contends the corrective lens restriction merely reflects the opinion
of an unidentified DOL employee who has the discretion to impose the restriction
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when they, in their opinion, believe the driver’s visual acuity does not meet state
standards. He argues this fact renders the driver’s license inadmissible. To
support this contention, Brewer analogizes his case to Brundridge v. Fluor Fed.
Servs., Inc., 164 Wn.2d 432, 191 P.3d 879 (2008). We do not find this argument
persuasive.
In Brundridge, a group of industrial pipe fitters filed a complaint against their
employer with the United States Department of Labor Occupational Safety and
Health Administration (OSHA). Id. at 438. In a subsequent lawsuit, the trial court
admitted a redacted version of the report OSHA had generated as part of their
investigation. Id. at 449. On appeal, our Supreme Court held that the trial court
erred in admitting the report. Id. at 452. While the investigator’s conclusions had
been redacted, the court reasoned the “facts” left in the report “contained a residue
of ‘judgment’ or ‘opinion’ because where individuals disagreed on the facts, the
investigator necessarily chose whose version of a particular ‘fact’ to accept.” Id.
at 451.
This case is not analogous. Brundridge involved a traditional application of
discretion, where an official generating an investigative report had to weigh and
choose the information that official included. This case, by contrast, involves a test
that is mechanical in nature. See State v. Zektzer, 13 Wn. App. 24, 30, 533 P.2d
399 (1975) (concluding “[v]isual acuity is tested mechanically.”) There is no
evidence that the results of the vision exam are the result of any “discretionary”
determination of a DOL employee. If the test is performed properly, the results
should be the same regardless of who administers it. Thus, the corrective lens
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restriction is more akin to a statement of fact than the expression of opinion. The
presence of a restriction on a driver’s license indicates only that the holder of the
license has a visual acuity of less than 20/40 Snellen uncorrected.
The DOL requirement that Brewer wear corrective lenses when driving, as
indicated on his driver’s license, does not involve an exercise of judgment or
discretion and evidence of the restriction on Brewer’s driver’s license was
admissible as a public record under RCW 5.44.040. 5
B. Demonstrative Evidence
Brewer next argues the trial court abused its discretion in admitting the
State’s “time and distance” analysis because substantial differences existed
between the actual accident and the accident reconstruction. We see no abuse of
discretion here.
“The use of demonstrative evidence is encouraged when it accurately
illustrates facts sought to be proved.” State v. Finch, 137 Wn.2d 792, 816, 975
P.2d 967 (1999). Demonstrative evidence is permitted “if the experiment was
conducted under substantially similar conditions as the event at issue.” Id. (citing
Jenkins v. Snohomish County Pub. Util. Dist. No. 1, 105 Wn.2d 99, 107, 713 P.2d
5Brewer also argues that, even if the driver’s license itself is admissible under RCW 5.44.040, the
restriction might be based on the conclusion of a third-party health care provider and thus may be
double hearsay. App. Br. at 32. However, a defendant may not remain silent as to a claimed
evidentiary error during trial and then later, for the first time on appeal, urge objections not raised
below. State v. Guloy, 104 Wn.2d 412, 421, 705 P.2d 1182 (1985). Brewer did not claim below
that the corrective lens restriction was based on hearsay statements made to the DOL by a third
party, nor did he cite to ER 805 or suggest the contents of the driver’s license contained double
hearsay. An objection to the admission of evidence based on one evidentiary rule is insufficient to
preserve appellate review under a different evidentiary rule. State v. Kendrick, 47 Wn. App. 620,
634, 736 P.2d 1079 (1987); State v. Jordan, 39 Wn. App. 530, 539-40, 694 P.2d 47 (1985). Brewer
failed to preserve this issue for appeal.
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79 (1986)). Additionally, the evidence sought to be admitted must be relevant.
Finch, 137 Wn.2d at 816. Courts should refuse to admit such evidence if it is likely
to confuse the jury, raises collateral issues, or is more prejudicial than probative.
Jenkins, 105 Wn.2d at 107.
The trial court has discretion to determine whether the similarity is sufficient
and, thus, whether the demonstrative evidence is admissible. Id. If the evidence
is admitted, any dissimilarity goes to the weight of the evidence. Id. We review
the trial court's evidentiary ruling for abuse of discretion and will only disturb the
ruling if it is manifestly unreasonable or based on untenable grounds. In re Pers.
Restraint of Duncan, 167 Wn.2d 398, 402, 219 P.3d 666 (2009). A ruling is
manifestly unreasonable if it “‘adopts a view that no reasonable person would
take.’” Id. (quoting Mayer v. Sto Indus., Inc., 156 Wn.2d 677, 132 P.3d 115 (2006)).
At trial, Detective Thomas Bacon, a member of the Seattle Police
Department Traffic Collision Investigation Squad, testified that he was assigned to
investigate, analyze and form conclusions as to how the collision occurred. He
examined the scene of the collision, the jersey barriers, the physical evidence from
the scene, and Brewer’s truck. He took photographs and generated a 3-D map of
the scene. He concluded from his investigation that Brewer came into contact with
the cyclist at the right front corner of the F-350 truck.
The State introduced demonstrative evidence of a “time and distance
experiment” Detective Bacon conducted to show the relative distance between
Brewer’s truck and Blaylock’s bicycle as they both travelled southbound on First
Avenue. Detective Bacon testified that this experiment assumed the truck was
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traveling twenty-five miles per hour and the bicyclist was traveling between eight
and twelve miles per hour. The detective used these assumptions to calculate
each parties’ location at various points, working back in time from the point of
impact. At each time interval, the detective took photographs from the calculated
position of Brewer’s truck as compared to the calculated position of a stand-in
bicyclist. Detective Bacon took the photographs from the height of the midpoint of
the windshield of Brewer’s truck, where he estimated the driver’s head would have
been. Detective Bacon testified his experiment was not an exact replication of
what Brewer would have seen on the day of the accident. But based on his
assessment of the respective locations of the truck and the bicycle, Detective
Bacon concluded Blaylock would have been in front of Brewer and visible for at
least twenty-nine seconds leading up to impact.
From the evidence Detective Bacon collected and the time and distance
analysis he performed, he opined that “whatever was going on inside of that truck,
that driver was not paying attention to what he was doing. [There] was some form
of extreme distraction that resulted in this type of driving behavior.”
Brewer objected to Detective Bacon’s accident reconstruction testimony
and photographs, arguing the reconstruction was substantially different than the
scene of the accident. In overruling the objection, the trial court compared the
photographs Detective Bacon took at the scene on the day of the collision to the
photographs taken during the reconstruction and found them to be not “terribly
different,” and certainly not different enough to be excluded as misleading. It
concluded a jury instruction could cure the fact that the reconstruction occurred in
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the morning versus the afternoon, when the accident occurred, and the jury would
be instructed it was free to accept or reject any expert opinion.
Brewer reiterates his challenge to the admissibility of Detective Bacon’s
time and distance analysis on appeal. 6 He contends that Detective Bacon’s
decision to take photos at the height of the midpoint of the driver’s window, rather
than from inside a comparable truck, did not account for Brewer’s actual eye height
or any blind spots caused by his front pillar. He also argues that because Detective
Bacon took photos during the reconstruction in the morning, rather than late
afternoon at the same time as the collision, these photos depicted different lighting
conditions. These differences, he maintains, rendered the evidence “completely
untethered” from what Brewer would have actually perceived that day.
Brewer relies on State v. Hunter, 152 Wn. App. 30, 216 P.3d 421 (2009), to
support the contention that these differences were so significant that the evidence
“fail[ed] to meet its purpose.” In Hunter, the key issue was whether the defendant,
on trial for murder, intended to shoot the victim or whether the gun in his hands
went off accidentally. Id. at 33. At trial, the State introduced a demonstrative
trigger pull measuring device developed by a former Washington State Crime Lab
employee which he claimed demonstrated the feel of pulling the trigger on Hunter’s
gun. Id. at 34. The record revealed that there were substantial differences
6
Brewer also contends the demonstrative evidence was “based on unfounded assumptions.” For
this he relies on State v. Hultenschmidt, 125 Wn. App. 259, 102 P.3d 192 (2004). In that case, we
upheld a trial court’s decision to exclude a defendant’s demonstrative evidence because the
evidence admittedly depicted events that never occurred. Hultenschmidt is thus not analogous.
Moreover, Brewer did not argue below that Detective Bacon’s assumptions were so speculative as
to warrant the exclusion of the demonstrative evidence. He moved to exclude the evidence solely
because the experiment was not conducted under similar conditions. He has not preserved this
issue for appeal.
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between this measuring device and Hunter’s weapon, including the physical
dimensions of the reach, the width of the trigger, and the way in which the trigger
moved, all of which impacted “perceived trigger pull.” Id. at 41-42. The trial court
admitted the device as evidence and allowed each juror to step down and pull the
trigger measuring device one by one. Id. at 36, 42.
On appeal, this court held the trial court abused its discretion in admitting
the evidence because the device was not substantially similar to the firearm
actually used in the shooting. Id. at 42. The court explained the “trigger pull device
gave the jurors an improper understanding of the amount of pressure needed to
pull the trigger on Hunter's firearm, undermining Hunter's theory that he
accidentally pulled the trigger.” Id.
The State in turn relies on Finch to argue that any dissimilarities between
conditions on the day of the accident and on the day Detective Bacon conducted
his analysis could be adequately addressed through cross examination. In that
case, Finch was convicted of murder after he fired a gun from inside a residence,
killing a sheriff’s deputy standing outside. Finch, 137 Wn.2d at 803. To prove
Finch’s actions were premeditated and intentional, officers conducted an
experiment to determine how visible the deputy would have been from the window
through which Finch had fired his gun. Id. at 804. Investigators placed officers in
the same position they were standing at the scene on the night of the shooting and
attempted to recreate the same lighting conditions. Id. They then used a video
camera to record what could be seen from the bedroom window. Id. The trial court
admitted the evidence and ruled that any differences in the conditions portrayed
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and those on the night of the crime went to the weight of the evidence and could
be addressed through cross examination. Id. at 815.
The Supreme Court affirmed, holding that the demonstrative evidence was
created in conditions substantially similar to those on the night in question and that
Finch had been able to address any differences during questioning. Id. at 818. It
further concluded that, because the video did not purport to be a reenactment of
the event, the probative value of the evidence was not outweighed by prejudice to
the defendant. Id.This case is more analogous to Finch than to Hunter. First, the differences
on which Brewer relies–the height of the camera, the time of day, and the location
from which photographs were taken–are similar to the differences rejected by the
Supreme Court in Finch as insufficient to exclude the demonstrative evidence.
Detective Bacon explained all of the differences to the jury and they were easily
ascertainable by the jury who had photos and videos of the day of the accident
with which to compare the demonstrative evidence. Second, unlike in Hunter, the
jurors did not become participants in the demonstration and the State did not ask
jurors to base their decision on how they felt when engaging in the same conduct
as the defendant. Because perception of the pressure needed to pull a trigger is
so variable depending on the person actually pulling the trigger, the jurors’
perceptions of their own experience would not have replicated Hunter’s own
experience.
Here, as in Finch, the photos and testimony regarding the demonstration
were intended to help the jury visualize what Brewer, not the jurors, could have
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seen through his truck window and to understand the relative positions of the truck
and the bicycle as they approached the point of impact. Detective Bacon clearly
testified that the reconstruction did not purport to reenact the events of the
accident. He explained to the jury that he had to make certain assumptions in
estimating the relative positions and speeds of the truck and bicycle at any given
point in time. Jurors could ascertain some differences between the scene on the
day of the accident and the day of the reconstruction with their own eyes. The
court admitted numerous photos of the scene taken the day of the accident, as
well as a video taken only moments after the accident occurred. During
questioning, Detective Bacon described differences in the scene between the day
of the homicide and the day of the experiment, including the fact that the jersey
barriers had been removed and lighting conditions and shadows were different.
Moreover, defense counsel elicited testimony from the photographer, Christopher
Mobley, that he had used different exposures and lighting settings for the
photographs, which could have affected how light or dark the images were. The
circumstances surrounding this demonstrative evidence make it more analogous
to the Finch case than to Hunter.
We therefore conclude the trial court did not abuse its discretion in
permitting the State to present this demonstrative evidence.
C. Sufficiency of the Evidence
Brewer contends there was insufficient evidence to support his conviction
for vehicular homicide. We reject his sufficiency challenge.
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Due process of law requires that the State prove every element of a charged
crime beyond a reasonable doubt in order to obtain a criminal conviction. State v.
O’Hara, 167 Wn.2d 91, 105, 217 P.3d 756 (2009). Because the sufficiency of the
evidence is a question of constitutional law, we review this issue de novo. State
v. Rich, 184 Wn.2d 897, 903, 365 P.3d 746 (2016).
To evaluate whether sufficient evidence supports a conviction, this court
views the evidence in the light most favorable to the State to determine if “any
rational trier of fact could have found the essential elements” of the charged crime
beyond a reasonable doubt. State v. Green, 94 Wn.2d 216, 221-22, 616 P.2d 628(1980). A defendant’s claim of insufficiency “admits the truth of the State’s
evidence and all inferences that reasonably can be drawn” from it. State v. Salinas,
119 Wn.2d 192, 201, 829 P.2d 1068 (1992). We consider circumstantial and direct
evidence equally reliable. State v. Delmarter, 94 Wn.2d 634, 638, 618 P.2d 99(1980). We also defer to the jury’s evaluation of witness credibility, resolution of
testimony in conflict, and weight and persuasiveness of the evidence. State v.
Thomas, 150 Wn.2d 821, 874-75, 83 P.3d 970 (2004).
Under RCW 46.61.520:
(1) When the death of any person ensues within three years as a
proximate result of injury proximately caused by the driving of any
vehicle by any person, the driver is guilty of vehicular homicide if the
driver was operating a motor vehicle:
(a) While under the influence of intoxicating liquor or any drug . . . or
(b) In a reckless manner; or
(c) With disregard for the safety of others.
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The State charged Brewer under subparagraph (1)(c), alleging he operated
his truck with disregard for the safety of others. Brewer challenges the sufficiency
of evidence demonstrating this element of the charged crime.
The Washington Supreme Court defines “disregard for the safety of others”
as “an aggravated kind of negligence or carelessness, falling short of
recklessness” but with “a greater and more marked dereliction than ordinary
negligence.” State v. Eike, 72 Wn.2d 760, 765–66, 435 P.2d 680 (1967); accord
State v. Jacobsen, 78 Wn.2d 491, 498, 477 P.2d 1 (1970). Some evidence of a
defendant’s conscious disregard of a danger to others is necessary to support a
charge of vehicular homicide. State v. Lopez, 93 Wn. App. 619, 623, 970 P.2d
765 (1999). To “disregard” means to “treat without fitting respect or attention,” or
“to give no thought” to or “to pay no attention to.” WEBSTER’S THIRD NEW INT’L
DICTIONARY 655 (2002).
Brewer argues that, absent some showing by the State of driving under the
influence or driving at an excessive speed, a jury could not conclude Brewer
consciously disregarded the safety of others. While Washington courts have
affirmed vehicular homicide convictions based on behaviors such as driving in the
wrong lane, driving erratically while intoxicated or at an excessive speed, and
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failing to heed weather conditions, 7 proof of intoxication or recklessness, 8
elements of the crime if charged under RCW 46.61.520(1)(a) or (b), is not required
for a charge under RCW 46.61.520(1)(c). The fact that Brewer’s driving could have
been worse has no bearing on whether sufficient evidence supports the jury’s
verdict.
Brewer relies on Lopez to support his argument that ordinary negligence is
insufficient to support his conviction. While Brewer’s statement of the law is
correct, Lopez is factually distinct from this case. In that case, the trial court
dismissed a charge of vehicular homicide filed against a 14 year-old because the
only evidence the State alleged to support the charge was Lopez’s status as an
unlicensed driver. Lopez, 93 Wn. App. at 622. This court affirmed because there
was “no evidence that Ms. Lopez actually was an inexperienced driver or that she
participated in speeding, horseplay or driving under the influence of intoxicants. . .
. In short, a minor’s status as an unlicensed driver is not enough to establish
beyond reasonable doubt a disregard for the safety of others.” Id. at 623.
7
See Eike, 72 Wn.2d at 766 (upholding conviction where defendant was driving at 45 to 50 miles
per hour on a dark, wet highway and crossed the center line to path of oncoming car); State v.
McNeal, 98 Wn. App. 585, 593, 991 P.2d 649 (1999), aff’d, 145 Wn.2d 352, 37 P.3d 352 (2002)
(explaining that “driving on the wrong side of the road . . . is itself sufficient evidence that at the
time of the accident, he was acting with ‘disregard for the safety of others.’”); State v. Miller, 60 Wn.
App. 767, 807 P.2d 893 (1991) (upholding a conviction where defendant was intoxicated and
driving on the wrong side of the road with a headlight out); State v. Knowles, 46 Wn. App. 426, 430-
31, 730 P.2d 738 (1986) (upholding conviction of defendant who took a blind curve at 22 miles per
hour over the posted speed limit, crossed the center line, and struck an oncoming car); State v.
Sanchez, 42 Wn. App. 225, 233, 711 P.2d 1029 (1987) (finding sufficient evidence where Sanchez
was driving late at night on icy roads, travelling “faster than the road conditions warranted” and
continued to accelerate up a hill despite his car “fishtailing”).
8
RCW 9A.08.010(c) defines “recklessness” as knowing of and disregarding “a substantial risk that
a wrongful act may occur” and the disregard for this substantial risk is a “gross deviation from
conduct that a reasonable person would exercise in the same situation.”
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No. 79442-6-I/20
The jury was instructed here that “[o]rdinary negligence in operating a motor
vehicle does not render a person guilty of vehicular homicide.” Unlike Lopez, the
State presented evidence that Brewer drove in a manner that substantially
exceeded ordinary negligence. Brewer was so distracted that he failed to notice
traffic signals, drove over the fog line, drove across a three-foot-wide shoulder, and
drove his right front and rear wheels some 15 inches up a concrete jersey barrier.
The evidence further demonstrates that Blaylock should have been visible
to Brewer. The accident occurred in mid-afternoon, shortly after 4 p.m. on a clear
and sunny day. Blaylock was brightly clad in a yellow jersey and was in front of
and traveling in the same direction as Brewer. Detective Bacon opined that
Blaylock would have been in front of Brewer and visible for at least 29 seconds
leading up to impact. He further testified that, during this 29-second period, he
could not identify anything that should have obstructed Brewer’s view of Blaylock.
Likewise, none of the witnesses indicated that there was decreased visibility or any
reason Blaylock would have been difficult to spot. And Brewer admitted to the
officers that, despite needing corrective lenses, he chose not to wear his
prescription glasses when he was driving during the day.
Finally, taken in the light most favorable to the State, the evidence suggests
Brewer was drowsy or sleep-deprived at the time of the accident. Brewer told
officers that he had been out the night before celebrating his birthday at the Tulalip
Casino. He stated he had returned home and went to sleep around 3:30 a.m. But
location data from his cell phone records showed he had stayed out all night long,
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No. 79442-6-I/21
did not return home until about 11 a.m. the day of the accident, and he remained
at home for only a couple of hours before leaving again.
A reasonable jury could conclude from this evidence that Brewer was
driving with aggravated negligence or carelessness, and paying no attention to his
surroundings. This evidence was sufficient to demonstrate that Brewer acted with
disregard for the safety of others and to support his conviction for vehicular
homicide.
D. Sentencing
Brewer contends the trial court erred in imposing a high-end sentence by
improperly relying on facts that he did not admit or acknowledge as true or facts
the State failed to prove. Ordinarily, a sentence within the standard range may not
be appealed. RCW 9.94A.585(1). But an appellant may challenge a sentence by
demonstrating the court failed to follow a specific procedure required by the
Sentencing Reform Act (SRA). State v. Mail, 121 Wn.2d 707, 712, 854 P.2d 1042(1993). Under the real facts doctrine, the sentencing court “may rely on no more
information than is admitted by the plea agreement, or admitted, acknowledged,
or proved in a trial or at the time of sentencing.” RCW 9.94A.530(2).
First, Brewer argues the court relied on the State’s allegations that Brewer
fled the scene of the accident, a charge the State failed to prove at trial. The record
does not support this contention. During the sentencing hearing, the court pointed
out that the prosecutor and victim’s family requested a high-end sentence because
Brewer had not stopped immediately at the scene of the accident. But there is no
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No. 79442-6-I/22
evidence that the court accepted these statements a true or relied on them in
imposing the sentence.
Second, Brewer contends the court improperly relied on speculation that
Brewer drove under the influence of drugs, contrary to the testimony at trial. The
record does not support this argument either. Brewer affirmatively represented in
his sentencing memo that he had “struggled with opiate addiction–which led to
criminal convictions and instability.” His counsel told the court at the sentencing
hearing that Brewer was “someone who has struggled with addiction.” The State
pointed out that Brewer was eligible for a Drug Offender Sentencing Alterative
(DOSA), but it opposed such a sentence. The court acknowledged “I would be
remiss . . . if I didn’t mention the ability for a DOSA.” The court then discussed
family experiences with addiction but prefaced its comments by noting “I don’t
know what was going on in your system. And it may have nothing to do with this,
whatsoever.” The court recognized that “as I understand from the investigating
detective who testified there was no indication that drugs played a role in this
unnecessary death.” Brewer did not object to any of these comments at
sentencing.
The record clearly establishes that the most important factor influencing the
court’s sentencing decision was Brewer’s 2008 conviction for a hit-and-run fatality.
The court stated “this is not a low end sentence because this isn’t your first time.
It’s your second death.” Brewer did not dispute these facts. The court went on to
say “I have a duty to protect the community for as long as possible. So that there
can never be a third or any other type of accident.” We therefore reject his
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No. 79442-6-I/23
contention that the trial court violated the real facts doctrine in imposing a high-end
sentence.
E. Legal Financial Obligations
Finally, Brewer argues the trial court erred when it found him to be not
indigent and ordered him to pay $472.50 in court costs under RCW 10.01.160 and
a $50 fine under RCW 46.64.055(1) without first inquiring into his ability to pay.
We agree and remand for the sentencing court to inquire into his indigency status
before imposing discretionary LFOs.
We review de novo whether the trial court conducted an adequate inquiry
into the defendant’s ability to pay. State v. Ramirez, 191 Wn.2d 732, 740, 426
P.3d 714 (2018).
Under RCW 10.01.160(3), the sentencing court must “make an
individualized inquiry into the defendant’s current and future ability to pay before
the court imposes LFOs.” State v. Blazina, 182 Wn.2d 827, 839, 344 P.3d 680(2015). When conducting this inquiry, the court should consider the mandatory
factors established by Blazina, including the defendant’s incarceration and other
debts, or whether that defendant meets the standard for indigency under GR 34.
Ramirez, 191 Wn.2d at 750. “Trial courts must also consider other ‘important
factors’ relating to a defendant’s financial circumstances, including employment
history, income, assets and other financial resources, monthly living expenses, and
other debts.” Id.
In Blazina, the Washington State Supreme court considered two
consolidated cases: State v. Blazina and State v. Paige-Colter. Blazina, 182
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No. 79442-6-I/24
Wn.2d at 830-31. In each of those cases, neither sentencing court considered the
defendant’s ability to pay before imposing the LFOs. Id. at 831-32. Each
defendant’s judgment and sentence included boilerplate language stating the court
had considered their ability to pay the imposed legal fees. Id. The Supreme Court
remanded the cases for new sentencing hearings and explained that the trial court
“must do more than sign a judgment and sentence with boilerplate language
stating that it engaged in the required inquiry.” Id. at 838-39.
There is no evidence here that the trial court considered Brewer’s ability to
pay discretionary LFOs. At sentencing, the court merely said “[y]ou will be
responsible for court costs” and the “$50 Title 46 fee.” Brewer’s judgment and
sentence contains boilerplate language saying the court “considered the
defendant’s present and likely future financial resources” and concluded “that the
defendant has the present or likely future ability to pay the financial obligations
imposed.” But the record demonstrates no discussion of Brewer’s employment
history, income, debt or other financial resources or any discussion of his ability to
pay.
The State contends that the court knew Brewer had retained private counsel
to represent him and thus was aware Brewer was not indigent. It argues no inquiry
was needed under these circumstances. But our Supreme Court has been clear:
“RCW 10.01.160(3) requires the record to reflect that the sentencing judge make
an individualized inquiry” into the defendant’s ability to pay. Id. at 839. The court
cannot assume a defendant can pay without evaluating the mandatory Blazina
factors. “If the trial court fails to conduct an individualized inquiry into the
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No. 79442-6-I/25
defendant’s financial circumstances, as RCW 10.01.160(3) requires, and
nonetheless imposes discretionary LFOs on the defendant, the trial court has per
se abused its discretionary power.” Ramirez, 191 Wn.2d at 741.
In addition to the LFO determination, the sentencing court should also
evaluate what effect, if any, the Supreme Court’s decision in State v. Blake has on
Brewer’s offender score and what effect, if any, a modified offender score will have
on Brewer’s standard sentencing range. In Blake, the Supreme Court held
Washington’s strict liability drug possession statute violated the state and federal
due process clauses because it criminalized unintentional, unknowing possession
of controlled substances. The trial court found Brewer’s offender score to be “6”
based on, in part, at least three prior drug possession convictions.
We affirm Brewer’s conviction but remand for the sentencing court to make
an individualized inquiry into Brewer’s ability to pay discretionary LFOs and to
determine what effect, if any, the Supreme Court’s decision in Blake has in this
case.
WE CONCUR:
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