Opinion
No. 34261-8-II
October 31, 2007
PUBLISHED OPINION
Following a civil infraction hearing, the district court found that Andrew L. Magee committed second degree negligent driving. On appeal, Magee challenges the trial court's reliance on the trooper's hearsay testimony, the sufficiency of the evidence, and the district court's failure to defer findings with costs. Because there was sufficient evidence showing Magee committed the infraction, we affirm.
FACTS
On April 9, 2005, Kenneth Hershey called Magee and asked him for help jump starting Hershey's car, which was parked on the shoulder of the on-ramp to State Route (SR) 512 in Puyallup, Washington. Washington State Trooper D.D. Randall was dispatched to SR 512, between Benston Drive and East Pioneer Avenue. At the scene, Randall found Magee's car parked on the shoulder of the road; the car was facing the opposite direction of oncoming traffic; and was parked "nose-to-nose" with his friend Hershey's car. Clerk's Papers (CP) at 28. Randall cited Magee for second degree negligent driving pursuant to RCW 46.61.525.
RCW 46.61.525 provides:
(1)(a) A person is guilty of negligent driving in the second degree if, under circumstances not constituting negligent driving in the first degree, he or she operates a motor vehicle in a manner that is both negligent and endangers or is likely to endanger any person or property.
(b) It is an affirmative defense to negligent driving in the second degree that must be proved by the defendant by a preponderance of the evidence, that the driver was operating the motor vehicle on private property with the consent of the owner in a manner consistent with the owner's consent.
(c) Negligent driving in the second degree is a traffic infraction and is subject to a penalty of two hundred fifty dollars.
(2) For the purposes of this section, "negligent" means the failure to exercise ordinary care, and is the doing of some act that a reasonably careful person would not do under the same or similar circumstances or the failure to do something that a reasonably careful person would do under the same or similar circumstances.
Magee contested the traffic infraction and requested a hearing. At the hearing, Trooper Randall testified that, while she did not witness Magee drive in the wrong direction on the highway, she noticed that his car was parked on the shoulder facing the wrong way.
District courts may preside over traffic infraction hearings without a prosecutor's presence. City of Bellevue v. Hellenthal, 144 Wn.2d 425, 434-35, 28 P.3d 744 (2001).
Hershey testified that he was with Magee before Trooper Randall arrived and that he did not see Magee drive the wrong way on SR 512. Magee represented himself and testified that he did not drive against traffic on SR 512 and that he did not cross the oncoming lanes of SR 512. However, Magee also testified that he crossed the oncoming lanes of traffic for the onramp to SR 512; that he made sure to signal before pulling into the oncoming lanes and signaled again when he drove a short distance (the wrong way) to the shoulder and parked facing Hershey's car, which was parked in the same direction with the flow of traffic.
The district court found that Magee committed second degree negligent driving because the position of his car was such that "unless [Magee's car was] airlifted, [Magee was] going the opposite direction of . . . the natural flow of traffic." CP at 32. The district court further held that it was not distinguishable whether Magee was driving on the shoulder or the paved highway because driving the wrong way "endangers people. Reasonably prudent persons . . . don't drive the wrong way, even on an onramp." CP at 32. Pursuant to RALJ 2.4, Magee appealed to the superior court. RCW 46.63.040(1).
The Washington legislature established limited jurisdiction courts to hear and determine violations of law designated as traffic infractions. RCW 46.63.040(1).
The superior court affirmed the district court's ruling, holding that there was sufficient evidence to support the district court's finding that Magee committed the infraction. It further held that there were no due process or discovery violations. We granted Magee's motion for discretionary review.
ANALYSIS
Hearsay
Magee asserts that Trooper Randall's testimony at the hearing related to the reports of witnesses calling in the incident was hearsay. We agree.
But an error in admitting evidence is not grounds for reversal unless it prejudices the defendant. Brown v. Spokane County Fire Prot. Dist. No. 1, 100 Wn.2d 188, 196, 668 P.2d 571 (1983). The improper admission of evidence is harmless error if the evidence is of minor significance in reference to the overall, overwhelming evidence as a whole. Nghiem v. State, 73 Wn. App. 405, 413, 869 P.2d 1086 (1994). Where the error is from violation of an evidentiary rule, we apply the rule that error is not prejudicial unless, within reasonable probabilities, the outcome of the trial would have been materially affected had the error not occurred. State v. Halstien, 122 Wn.2d 109, 127, 857 P.2d 270 (1993).
In this case, Magee objected several times to the trooper's testimony about the witnesses' reports. A review of the record shows that the trooper's testimony was intertwined with and heavily relied on the inadmissible hearsay evidence.
However, Magee testified at the hearing and admitted that he briefly drove against traffic in order to turn the car around but that he used his signals when he did so. Thus, although the trooper's testimony was improper, the error here was harmless. Nghiem, 73 Wn. App. at 413. Sufficiency of the Evidence
Magee specifically testified that
[Hershey] had called me and [his car] wouldn't start so I did pull in front of him to give him a jump-start. At all times when I came back into the lane of the onramp, I did signal to go into the ramp and then onto that lane, and then did signal to pull over, and at all time I did have my flashers on.
CP at 31.
Magee next argues that (1) Trooper Randall did not have the authority to issue a citation because the infraction was not committed in the trooper's presence; and (2) the trooper unlawfully detained him for a traffic violation because the trooper did not see him commit the violation. Magee is essentially arguing that there was insufficient evidence to find that he committed second degree negligent driving.
Second degree negligent driving is a traffic infraction and not a criminal offense. State v. Farr-Lenzini, 93 Wn. App. 453, 467, 970 P.2d 313 (1999). A person is guilty of second degree negligent driving when he "operates a motor vehicle in a manner that is both negligent and endangers or is likely to endanger any person or property." RCW 46.61.525(1)(a).
"Negligence" is defined to mean "the failure to exercise ordinary care, and is the doing of some act that a reasonably careful person would not do under the same or similar circumstances or the failure to do something that a reasonably careful person would do under the same or similar circumstances." RCW 46.61.525(2). The State's burden of proof is a preponderance of the evidence. RCW 46.63.060(2)(f); Farr-Lenzini, 93 Wn. App. at 467.
RCW 46.63.060(2)(f) provides:
A statement that at any hearing to contest the determination the state has the burden of proving, by a preponderance of the evidence, that the infraction was committed; and that the person may subpoena witnesses including the officer who issued the notice of infraction.
Evidence of the infraction is sufficient if, viewed in the light most favorable to the State and making all reasonable inferences therefrom, it permitted the trier of fact to find by a preponderance of the evidence that Magee drove negligently. IRLJ 3.3(d), 5.2; Farr-Lenzini, 93 Wn. App. at 467; Cox v. The Keg Restaurants U.S., Inc., 86 Wn. App. 239, 250, 935 P.2d 1377, review denied, 133 Wn.2d 1012 (1997); State v. Roberts, 73 Wn. App. 141, 143-44, 867 P.2d 697, review denied, 124 Wn.2d 1022 (1994). Circumstantial evidence is no less reliable than direct evidence. State v. Myers, 133 Wn.2d 26, 38, 941 P.2d 1102 (1997). Credibility determinations are for the trier of fact and are not subject to review. State v. Thomas, 150 Wn.2d 821, 874-75, 83 P.3d 970 (2004).
Here, the district court ruled that driving the wrong way, "even on an onramp," endangered people; that reasonably prudent people do not drive the wrong way on the highway, or the on-ramp; and that it would have been more helpful for Magee to call a tow truck to help Hershey. CP at 32.
As discussed above, Magee's own testimony, alone, was sufficient to support the district court's finding that Magee drove against traffic and, thus, operated his car "in a manner that is both negligent and endangers or is likely to endanger any person or property." RCW 46.61.525(1)(a). His argument to the contrary fails. Alternative or Deferred Finding With Costs
Magee next argues that he was denied procedural due process because the district court did not review his case to determine his eligibility for a dismissal with costs or a deferred finding.
In this case, the district court mailed Magee a letter outlining the procedure for contesting the citation and advised Magee that he had various options including a hearing in person, by mail, or dismissal with costs, or a deferral of the finding that he committed the infraction. Neither party has cited any law granting any court the authority to defer a finding of guilt while at the same time requiring the defendant to pay costs. And we are aware of no authority giving a court the power to require a defendant to pay costs when the defendant has not been convicted of a crime.
Unquestionably, a trial court has the authority to impose costs on a convicted defendant. State v. Buchanan, 78 Wn. App. 648, 651, 898 P.2d 862 (1995). Under former RCW 10.01.160(1) (2005) "[c]osts may be imposed only upon a convicted defendant." (Emphasis added.) See RCW 10.01.050 ("No person charged with any offense against the law shall be punished for such offense, unless he shall have been duly and legally convicted thereof in a court having competent jurisdiction of the case and of the person."). A court may not defer a finding on condition that the defendant pay costs it has no authority to impose. Accordingly, the trial court's failure to consider an option it did not lawfully have could not violate Magee's due process rights.
The legislature recently amended this statute but did not alter the law that costs may be imposed only upon a convicted defendant:
The court may require a defendant to pay costs. Costs may be imposed only upon a convicted defendant, except for costs imposed upon a defendant's entry into a deferred prosecution program, costs imposed upon a defendant for pretrial supervision, or costs imposed upon a defendant for preparing and serving a warrant for failure to appear.
Laws of 2007, ch. 367, § 3 (effective date July 22, 2007) (first emphasis added).
Magee's testimony is sufficient to support the district court's ruling that he "committed" the infraction of second degree negligent driving.
Accordingly, we affirm.
HOUGHTON, C.J., and PENOYAR, J., concur.