Opinion
No. 40655-1-II.
Filed: March 1, 2011.
Appeal from a judgment of the Superior Court for Grays Harbor County, No. 10-1-00095-2, Gordon Godfrey, J., entered April 26, 2010.
Reversed and remanded with instructions by unpublished opinion per Quinn-Brintnall, J., concurred in by Penoyar, C.J., and Van Deren, J.
A jury found Nicholas J. Mowitch guilty of attempting to elude a pursuing police vehicle under former RCW 46.61.024 (2003). On appeal, Mowitch challenges the sufficiency of the evidence proving that (1) the officer was in a uniform and (2) the vehicle was equipped with lights and sirens. Under State v Hudson, 85 Wn. App. 401, 932 P.2d 714 (1997), and State v. Fussell, 84 Wn. App. 126, 925 P.2d 642 (1996), the evidence presented was insufficient to prove beyond a reasonable doubt that the officer was in uniform when he signaled Mowitch to pull over, therefore we do not decide whether sufficient evidence supports the inference that the officer's vehicle was equipped with both lights and sirens. Accordingly, we reverse Mowitch's conviction and remand with directions that the court dismiss the charge.
FACTS
On February 26, 2010, then Officer Jeremy Mitchell of the Hoquiam Police Department was on patrol at the Endreson boat launch in Grays Harbor County. A tan-or gold-colored passenger car pulled up next to Mitchell and he recognized the driver as Mowitch. Mowitch accelerated, spinning the car's wheels on the gravel before taking off at a high speed. Mitchell activated the emergency lights on his vehicle and pursued Mowitch.
By the time Mitchell testified at trial, he had received a promotion to detective. We refer to him as Officer Mitchell based on his involvement on the day of the incident in this case.
Officer Mitchell knew that Mowitch had an outstanding felony warrant for his arrest, but the trial court suppressed any mention of the felony warrant as a basis for the stop.
Officer Mitchell momentarily lost sight of Mowitch's car when Mowitch sped around a corner. When Mitchell turned the corner, he saw Mowitch's car had collided with a parked car, causing it to hit a telephone pole that almost fell over.
At trial, Officer Mitchell testified that he was on "general patrols" the night of the incident. Report of Proceedings (RP) (Apr. 13, 2010) at 15. Mitchell testified that, after Mowitch sped off, he "activated [his] emergency lights, overhead lights." RP (Apr. 13, 2010) at 17. Finally, Mitchell testified that, after Mowitch's vehicle collided with the parked car, he made contact with Mowitch and took a statement from him.
On March 15, 2010, the State charged Mowitch by amended information with (1) theft of a motor vehicle, (2) attempting to elude a pursuing police vehicle, and (3) possession of methamphetamine. A jury found Mowitch guilty of attempting to elude a pursuing police vehicle. Mowitch appeals his conviction.
At the start of the trial, the State notified the trial court that it would not be pursuing either the theft of a motor vehicle or the possession of methamphetamine charge. The State never formally filed another amended information.
ANALYSIS
Sufficiency of Evidence
Mowitch challenges the sufficiency of the evidence proving that (1) the officer was in uniform and (2) the vehicle was equipped with lights and sirens as required by former RCW 46.61.024. We reverse.
Evidence is sufficient to support a conviction if, viewed in the 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 of insufficiency admits the truth of the State's evidence and all reasonable inferences that a trier of fact can draw from that evidence. Salinas, 119 Wn.2d at 201.
A person is guilty of attempting to elude a police vehicle if he
willfully fails or refuses to immediately bring his vehicle to a stop and drives his 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. . . . 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.
Former RCW 46.61.024(1) (emphasis added). The State must present evidence proving beyond a reasonable doubt that the officer was in a uniform at the time he signaled the vehicle to stop. Hudson, 85 Wn. App. at 403; Fussell, 84 Wn. App. at 128.
Divisions One and Three of this court have held that evidence that an officer was on duty and in a marked police vehicle, without more, is insufficient to allow a rational jury to infer the officer was in a uniform. Hudson, 85 Wn. App. at 405; Fussell, 84 Wn. App. at 128-29. In Hudson, the officers were in a marked patrol vehicle which had the emergency lights and siren activated, but the court held that this evidence was insufficient to prove that the officers were in uniforms. 85 Wn. App. at 404-05. And the Fussell court held that, while it is reasonable to infer that the defendant knew individuals in a marked patrol car with activated emergency equipment were police officers, it is not reasonable to infer the officers were in uniform. 84 Wn. App. at 128-29.
Officer Mitchell testified that, while on patrol, he spotted Mowitch, activated the emergency, overhead lights on his vehicle, and chased after Mowitch. Here, as in Fussell and Hudson, the State did not present evidence that Mitchell was in uniform at the time of these events. Applying Fussell and Hudson to the evidence in the record before us, we hold that the State's evidence is insufficient to prove Mitchell was in uniform during the incident. Because the evidence is insufficient as a matter of law to prove Mitchell was wearing a uniform when he attempted to stop Mowitch's vehicle, the evidence is insufficient to support the jury's verdict. Thus, we do not decide whether the evidence was sufficient to allow a jury to find if Mitchell's vehicle was equipped with both lights and sirens.
In accord with Hudson and Fussell, we reverse Mowitch's conviction and remand with directions that the trial court dismiss the charge with prejudice. State v. Hickman, 135 Wn.2d 97, 103, 954 P.2d 900 (1998) ("Retrial following reversal for insufficient evidence is `unequivocally prohibited' and dismissal is the remedy." (citing State v. Hardesty, 129 Wn.2d 303, 309, 915 P.2d 1080 (1996))).
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 pursuant to RCW 2.06.040, it is so ordered.
VAN DEREN, J. and PENOYAR, C.J., concur.