Opinion
No. 30457-1-II.
Filed: June 8, 2004. UNPUBLISHED OPINION
Appeal from Superior Court of Kitsap County. Docket No: 03-1-00415-2. Judgment or order under review. Date filed: 05/23/2003. Judge signing: Hon. Jay B Roof.
Counsel for Appellant(s), Thomas E. Jr Weaver, Attorney at Law, 569 Division St. Ste E, Port Orchard, WA 98366-4600.
Counsel for Respondent(s), Jeremy Aaron Morris, Kitsap County Prosecuto's Office, Msc 35, 614 Division St, Port Orchard, WA 98366-4681.
Jay Michael Dobson appeals his convictions of attempting to elude a pursuing police officer and two counts of misdemeanor hit and run, arguing that there is insufficient evidence to support the attempting to elude conviction and that his two convictions of misdemeanor hit and run violate his double jeopardy rights.
Facts
On March 15, 2003, Bremerton Police Reserve Officer Mike Turso was on duty and driving a marked police car when he saw a BMW Z3 traveling at a high rate of speed. After turning a corner and almost going up onto the sidewalk, the BMW gained speed quickly. Turso activated his emergency lights and followed the car, but it did not stop.
Turso radioed for assistance and Sergeant Richard Cronk joined the pursuit. After Cronk followed the BMW for a short distance, it turned and came toward him. When the BMW sped past, Cronk saw that the driver was white. Cronk then lost sight of the vehicle. Approximately five minutes later, the vehicle was found crashed into a porch and a parked van. The driver of the car was gone.
After discovering that the BMW was stolen, the police called a canine unit, and the dog tracked the driver's scent through a wet and wooded area to the location where Dobson was found. The bottoms of his pant legs were wet, consistent with someone who had been running through brush.
The State charged Dobson by amended information with first degree possession of stolen property, attempting to elude a pursuing police officer, two counts of misdemeanor hit and run, and third degree driving while license suspended. The State also charged Dobson with second degree burglary, but the trial court dismissed that count before Dobson's trial began.
At trial, Turso and Cronk testified to the facts cited above. On cross-examination, the defense asked Cronk why he had neglected to put the fact about the driver's race in his police report. Cronk stated that he did not consider the driver's race an important detail. The following exchange then occurred:
Q. All right. Now, you put a lot of other details in your report, didn't you, such as that Mr. Dobson had a domestic violence warrant?
A. That's correct.
Q. All right. That you were driving a clearly-marked police vehicle?
A. That's correct.
Q. And that you were in uniform?
A. That's correct.
Q. And that you activated your emergency lights and siren?
A. That's correct.
Report of Proceedings (RP) (May 15, 2003) at 94.
Richard Sigmund testified that after he heard a loud bang outside his house, he went out and saw the BMW sitting next to the north post of his front porch. That post was damaged, as was the van parked nearby, which belonged to Sigmund's friend.
The jury found Dobson guilty on all counts. He now appeals his convictions of attempting to elude a pursuing police officer and misdemeanor hit and run.
Discussion I.
Dobson argues initially that the evidence was insufficient to support his conviction of attempting to elude because the fact that the signaling officer was in uniform was introduced only through impeachment evidence.
Evidence is sufficient if, when viewed in the light most favorable to the prosecution, it permits a rational trier of fact to find each essential element of the crime beyond a reasonable doubt. State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992). Credibility determinations are for the trier of fact. State v. Camarillo, 115 Wn.2d 60, 71, 794 P.2d 850 (1990).
It is an element of the crime of attempting to elude a pursuing police officer that the officer who signals a driver to stop is in uniform. RCW 46.61.024. At trial, this element must be based on express testimony rather than mere inference. State v. Hudson, 85 Wn. App. 401, 404-05, 932 P.2d 714 (1997); State v. Fussell, 84 Wn. App. 126, 128-29, 925 P.2d 642 (1996). Dobson argues that the fact one of the pursuing officers was in uniform was introduced during Cronk's impeachment and is inadmissible as substantive evidence. See State v. Johnson, 40 Wn. App. 371, 377, 699 P.2d 221 (1985) (impeachment evidence affects a witnesses' credibility and is not proof of the substantive facts encompassed in such evidence).
During his cross-examination, Cronk acknowledged for the first time that he was in uniform when he signaled Dobson to stop. (Turso never testified that he was in uniform while pursuing Dobson.) This testimony does not qualify as impeachment evidence, however, because it was not inconsistent with any of Cronk's direct testimony. See Johnson, 40 Wn. App. at 377 (citing use of prior inconsistent statements as impeachment evidence). Even if it was intended to undermine Cronk's credibility, the defense did not ask for a limiting instruction. Therefore, the jury was free to consider Cronk's testimony as substantive evidence. See State v. Myers, 133 Wn.2d 26, 36, 941 P.2d 1102 (1997) (absent a request for a limiting instruction, evidence admitted as relevant for one purpose is deemed relevant for others). Accordingly, the evidence was sufficient to support Dobson's conviction of attempting to elude a pursuing police officer.
II.
Dobson next contends that his two convictions of misdemeanor hit and run based on a single collision violated his right to be free from double jeopardy.
Dobson was convicted of two violations of RCW 46.52.010 based on his actions in damaging Sigmund's porch and his friend's car. The statute provides as follows:
The operator of any vehicle which collided with any other vehicle which is unattended shall immediately stop and shall then and there either locate and notify the operator or owner of such vehicle of the name and address of the operator and owner of the vehicle striking the unattended vehicle or shall leave in a conspicuous place in the vehicle struck a written notice, giving the name and address of the operator and of the owner of the vehicle striking such other vehicle.
The driver of any vehicle involved in an accident resulting only in damage to property fixed or placed upon or adjacent to any public highway shall take reasonable steps to locate and notify the owner or person in charge of such property of such fact and of the name and address of the operator and owner of the vehicle striking such property, or shall leave in a conspicuous place upon the property struck a written notice, giving the name and address of the operator and of the owner of the vehicle so striking the property, and such person shall further make report of such accident as in the case of other accidents upon the public highways of this state. Any person violating the provisions of this section is guilty of a misdemeanor.
RCW 46.52.010. The statute thus makes it a misdemeanor for the operator of a motor vehicle involved in a collision resulting in damage to an unattended vehicle or to property adjacent to a public highway to fail to stop and take reasonable steps to locate the owner or to leave a written notice in a conspicuous place identifying himself as the owner or operator of the vehicle involved. State v. Williams, 50 Wn. App. 696, 699, 750 P.2d 278 (1988).
Double jeopardy protects a defendant from multiple convictions under the same statute if he commits only one unit of the crime. State v. Adel, 136 Wn.2d 629, 634, 965 P.2d 1072 (1998). Thus, when a defendant is convicted of multiple convictions of the same statute, we review the statute to determine what 'unit of prosecution' the legislature intended as the punishable act. Adel, 136 Wn.2d at 633-34.
Dobson contends that the unit of prosecution for misdemeanor hit and run is the collision that causes damage, and that because he collided with the porch and the van simultaneously, he should be guilty of only one violation of RCW 46.52.010. The State responds that the punishable act under RCW 46.52.010, as set forth in its two paragraphs, is the responsible party's failure to notify (a) the owner of an unattended vehicle, and/or (b) the owner of adjacent property, of damage caused by a collision. Despite the legislature's failure to number the paragraphs in RCW 46.52.010, the State contends that they identify separate units of prosecution and that Dobson was properly convicted of twice violating the statute.
Later amendments to a statute may be strong evidence of what the legislature intended in the original statute. Moen v. Spokane City Police Dep't, 110 Wn. App. 714, 719, 42 P.3d 456 (2002) (citing Waggoner v. Ace Hardware Corp., 134 Wn.2d 748, 755, 953 P.2d 88 (1998)). Effective this July, RCW 46.52.010 will have three numbered subsections: the first containing the first paragraph quoted above, the second containing the second paragraph, and the third providing that violation of the statute is a misdemeanor. Laws of 2003, ch. 53, sec. 241. The legislature's intent to identify separate units of prosecution in the statute's substantive paragraphs thus appears evident. Even without the 2003 amendments, however, it seems clear that the legislature intended the unit of prosecution in RCW 46.52.010 to be the failure to notify the owner of an unattended vehicle or other property of collision damage. The unit of prosecution in RCW 46.52.010 is not the collision that causes damage but the failure to notify affected owners of the resulting damage. In this case, Dobson failed to notify two such owners, and his resulting conviction of two counts of hit and run under RCW 46.52.010 did not violate double jeopardy.
Affirmed.
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.
MORGAN, P.J. and VAN DEREN, JJ., concur.