State of Washington v. Tyrone Christopher Belle

FILED
Aug. 9, 2016
In the Office of the Clerk of Court
WA State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
STATE OF WASHINGTON, )
) No. 33873-8-111
Respondent, )
)
V. )
)
TYRONE CHRISTOPHER BELLE, ) UNPUBLISHED OPINION
)
Appellant. )
Pennell, J. - Tyrone Christopher Belle appeals his conviction for attempting to
elude a police vehicle. He contends the evidence was insufficient to support the
conviction, and that a mandatory $100 deoxyribonucleic acid (DNA) collection fee
imposed by the sentencing court violates due process and equal protection principles. We
No. 33873-8-III
State v. Belle
reject his sufficiency challenge, decline to address the DNA collection issues raised for
the first time on appeal, and affirm.
FACTS AND PROCEDURAL HISTORY
The State charged Mr. Belle by amended information with attempting to elude a
police vehicle, including a special allegation that his eluding threatened harm or physical
injury to one or more persons other than himself or the pursuing police officer. The State
also charged him with misdemeanor violation of an ignition interlock requirement. The
case proceeded to a jury trial.
Spokane Police Officer Seth Killian testified that in the early afternoon of
March 11, 2015, he was in uniform and on patrol driving a fully marked vehicle in a
residential neighborhood. He observed and heard a green Chevy "dually" extended cab
pickup truck with loud exhaust "flying" around a comer with its tires squealing. Report
of Proceedings at 122. Officer Killian was facing the truck as it came toward him on a
narrow street with vehicles parked on both sides. He briefly flashed his overhead lights
to signal the driver to slow down, but to no avail. The officer and another car in front of
him pulled to the side of the street to avoid the truck, which nearly struck the patrol
vehicle as it sped past at an estimated 50 m.p.h. in a 25 m.p.h. zone. Officer Killian was
able to get a good look at the driver's face.
Officer Killian then activated his overhead lights and made a U-tum using part of
the sidewalk due to the narrowness of the street. Meanwhile, he saw the eastbound truck
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make a dangerous maneuver around a tight comer to go north. He accelerated to catch
the truck and hit his siren and air horn several times to move people out of the way, but
had to slow down at the comer for a man with his child on a bicycle. He then accelerated
as fast as he could in pursuit of the truck with siren fully engaged and overhead lights still
flashing, although he briefly turned off the siren to report the chase over the police radio.
With the truck in sight, Officer Killian observed the driver look at him in the mirror and
pull over to the side of the road in a slow roll. But instead of stopping, the driver spun
the truck's tires, took off, and slid around the next comer. As this occurred, Officer
Killian observed children present and was concerned they possibly could be crossing the
street to a nearby park. He thus terminated the pursuit due to risk of injury to persons in
the area.
Officer Killian was able to document the truck's license plate number. Dispatch
relayed the name and address of the truck's registered owner-a woman who lived
nearby-and Officer Killian contacted her. As a result of that contact, and with the aid of
a Department of Licensing (DOL) photograph, Officer Killian identified Mr. Belle as the
driver of the pickup. DOL records showed his license was suspended and that he was
required to have an ignition interlock device in a vehicle before driving it. Officer Killian
located the truck at the registered owner's mother's house and observed it did not contain
such a device. The court read to the jury a stipulation that Mr. Belle was required to have
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No. 33873-8-111
State v. Belle
an ignition interlock device in a vehicle before driving it. Officer Killian positively
identified Mr. Belle in court as the driver of the truck. Mr. Belle did not testify.
The jury found Mr. Belle guilty as charged and answered yes to the special
endangerment allegation on the attempting to elude. The court imposed a 12 month-plus-
1-day sentence on the eluding charge, and by separate judgment and sentence imposed a
364-day suspended sentence for the misdemeanor ignition interlock conviction. The
court imposed only mandatory legal financial obligations (LFOs) including a $500 victim
assessment, a $200 criminal filing fee, and a $100 DNA collection fee. Mr. Belle did not
object in the trial court to any of the LFOs and did not raise any constitutional challenge
to the DNA collection fee. He appeals. 1
ANALYSIS
Attempting to elude a police vehicle
Mr. Belle contends the evidence was insufficient to support his conviction for
attempting to elude a police vehicle. He argues the evidence did not establish that he
drove recklessly to elude after he was knowingly signaled to stop.
Evidence is sufficient if, when viewed in a 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. State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992). "A claim
1
Mr. Belle states that he appeals all portions of both judgments and sentences, but
he makes no assignment of error or argument regarding the ignition interlock conviction.
We therefore deem his appeal of that judgment and sentence abandoned.
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State v. Belle
of insufficiency admits the truth of the State's evidence and all inferences that reasonably
can be drawn therefrom." Id. Circumstantial evidence and direct evidence are equally
reliable. State v. Delmarter, 94 Wn.2d 634, 638, 618 P.2d 99 (1980). We defer to the
trier of fact on issues of conflicting testimony, witness credibility, and persuasiveness of
the evidence. State v. Walton, 64 Wn. App. 410, 415-16, 824 P.2d 533 (1992).
RCW 46.61.024(1) defines the crime of attempting to elude a police vehicle:
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.
Jury instruction 5 correctly recited the elements ofRCW 46.61.024(1). Jury
instruction 6 stated in pertinent part:
To convict the defendant of the crime of attempting to elude a police
vehicle, each of the following elements of the crime must be proved beyond
a reasonable doubt:
( 1) That on or about March 11, 2015, the defendant drove a motor vehicle;
(2) That the defendant was signaled to stop by a uniformed police officer by
hand, voice, emergency light or siren;
(3) That the signaling police officer's vehicle was equipped with lights and
siren;
(4) That the defendant willfully failed or refused to immediately bring the
vehicle to a stop after being signaled to stop;
(5) That while attempting to elude a pursuing police vehicle, the defendant
drove his vehicle indicating a reckless manner; and
(6) That the acts occurred in the State of Washington.
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No. 33873-8-111
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Clerk's Papers (CP) at 63. Jury instruction 7 defined "reckless" as follows:
A person is reckless or acts recklessly when he or she knows of and
disregards a substantial risk that a wrongful act may occur and this
disregard is a gross deviation from conduct that a reasonable person would
exercise in the same situation.
When recklessness is required to establish an element of a crime, the
element is also established if a person acts intentionally or knowingly as to
that fact.
No. 7; CP at 64. 2 Jury instruction 8 stated: "A person acts willfully when he or she acts
knowingly." CP at 65; see State v. Flora, 160 Wn. App. 549, 553, 249 P.3d 188 (2011)
("Willfulness" in the attempting to elude statute is identical to "knowledge.").
As Mr. Belle explains, Washington case law states that three elements must occur
in sequence before the crime has been committed: ( 1) a uniformed officer in a vehicle
equipped with lights and siren gives a signal to stop, (2) the driver willfully fails or
refuses to stop immediately, and (3) the driver drives in a reckless manner. See State v.
2
We note this is an incorrect instruction for use in attempting to elude cases. See
1lA WASHINGTON PRACTICE: WASHINGTON PATTERN JURY INSTRUCTIONS: CRIMINAL
94.02, note on use at 198 (2014 supp.) (WPIC) (stating that WPIC 90.05 is to be used
with WPIC 94.02, which is the "to convict" instruction for attempting to elude). WPIC
90.05 defines "reckless manner" as follows: "To operate a vehicle in a reckless manner
means to drive in a rash or heedless manner, indifferent to the consequences." See State
v. Ratliff, 140 Wn. App. 12, 15, 164 P.3d 516 (2007) (holding that a rash or heedless
manner, indifferent to the consequences, is the correct definition of reckless manner).
Here, the parties took no exception to jury instruction 7, and Mr. Belle makes no
assignment of error or argument regarding the instruction. It is the law of the case and
we analyze only whether there is "sufficient evidence to sustain the verdict under the
instructions of the court." State v. Hickman, 135 Wn.2d 97, 103, 954 P.2d 900 (1998)
(quoting Schatz v. Heimbigner, 82 Wash. 589,590, 144 P. 901 (1914)); see also State v.
France, 180 Wn.2d 809, 816, 329 P.3d 864 (2014) (same).
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State v. Belle
Stayton, 39 Wn. App. 46, 49, 691 P.2d 596 (1984) (interpreting former version ofRCW
46.61.024(1)); 1 lA WASHINGTON PRACTICE: WASHINGTON PATTERN JURY
INSTRUCTIONS: CRIMINAL 94.02, cmt. at 199 (2014 supp.) (and cases cited therein). Jury
instruction 6 comports with these principles. But Mr. Belle contends the State failed to
present sufficient evidence both that the three elements occurred and that they occurred in
the required sequence. More specifically, he argues there was insufficient evidence that
he "willfully failed to stop and only thereafter drove recklessly to elude Officer Killian."
Br. of App. at 7. The arguments fail.
The evidence shows Officer Killian was in uniform and driving a patrol vehicle
equipped with lights and a siren. He initially flashed his lights at the truck only to alert
the driver of police presence and to slow down. But once the truck passed by on the
narrow street at 50 m.p.h. and nearly struck the patrol car, the officer made the U-tum
and engaged his overhead lights in pursuit of the vehicle as it made a dangerous
maneuver around a tight comer. The officer hit his air horn and siren a few times to warn
people to get out of the way and then fully activated the siren along with the overhead
lights once he rounded that comer. He accelerated as fast as he could to catch up with the
truck. He observed the driver look at him in the mirror and pull to the side of the road in
a slow roll. Although the officer deactivated the siren for a short time to make a radio
call, the patrol car's overhead lights were all-the-while engaged. Instead of immediately
stopping on this signal the driver spun the tires, sped off, and slid around the next
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No. 33873-8-III
State v. Belle
comer-in the presence of children. The officer then terminated the pursuit due to risk of
injury to persons in the area.
From this evidence, the jury could find that the driver, Mr. Belle, knew he was
being pursued by an officer and was signaled to stop-at least by the time he looked at
the officer in his mirror and brought the pickup to a slow roll. This knowledge, and
willful refusal to stop immediately, can be readily inferred by his manner of flight from
the encounter--conduct the jury could deem unreasonable and in disregard of substantial
risk and therefore reckless as defined injury instruction 7. The officer's decision to then
terminate the pursuit due to the danger is of no moment because the crime was already
complete. The State thus proved that the elements of attempting to elude occurred and in
the required sequence.
A rational trier of fact could find each element of attempting to elude a police
vehicle beyond a reasonable doubt based on the testimony. RCW 46.61.024(1); State v.
Salinas, 119 Wn.2d at 201.
DNA collection fee
Mr. Belle contends the $100 DNA collection fee mandated by RCW 43.43.7541
violates substantive due process and equal protection. Identical arguments have been
rejected by this court previously. State v. Lewis, No. 72637-4-I, 2016 WL 3570550(Wash. Ct. App. June 27, 2016); State v. Johnson, No. 32834-1-III, 2016 WL 31248938
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No. 33873-8-111
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(Wash. Ct. App. June 2, 2016); State v. Mathers, 193 Wn. App. 913, _ P.3d _
(2016). We reject them here as well.
Affirmed.
A majority of the panel has determined this opinion will not be printed in the
Washington Appellate Reports, but it will be filed for public record pursuant to
RCW 2.06.040.
Pennell, J.
WE CONCUR:
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