Opinion
No. 24028-2-III.
November 2, 2006.
Appeal from a judgment of the Superior Court for Spokane County, No. 04-1-00455-2, Robert D. Austin, J., entered March 16, 2005.
Counsel for Appellant(s), David N. Gasch, Gasch Law Office, Po Box 30339, Spokane, WA, 99223-3005.
Counsel for Respondent(s), Kevin Michael Korsmo, Attorney at Law, 1100 W Mallon Ave, Spokane, WA, 99260-2043.
Andrew J. Metts III, Spokane County Pros Offc, 1100 W Mallon Ave, Spokane, WA, 99260-0270.
Affirmed by unpublished opinion per Kulik, J., concurred in by Brown and Kato, JJ.
Officer Aaron Ames was involved in a car chase. For safety reasons, he stopped chasing the car and went to the address of the car's registered owner. Officer Ames eventually identified Eric Ross as the driver of the car. Mr. Ross was charged and convicted with attempting to elude a police vehicle. On appeal, Mr. Ross contends that there was insufficient evidence that he was the driver of the car. Sufficient evidence exists to support the conviction; therefore, we affirm.
FACTS
On the night of February 9, 2004, Officer Aaron Ames saw a vehicle pull into a Zip Trip gas station. Although the surrounding area was dark, the gas station was well-lit. From approximately 20 to 30 yards, Officer Ames saw a man get out of the vehicle and go into the Zip Trip. During this time, Officer Ames ran a check of the license plate. The vehicle was registered to Patrick Bunch, whose driving status had been suspended. Officer Ames then saw the car drive away. The officer did not specifically focus on what this man looked like but noticed that he was a "taller male" and that he had "some kind of facial hair on his chin." Report of Proceedings (RP) at 18.
Officer Ames eventually turned on his overhead lights to stop the car. The driver accelerated and Officer Ames pursued, but ultimately stopped the chase for public safety reasons. Officer Ames then advised dispatch and other units of the situation, and drove around the neighborhood in search of the car.
While Officer Ames searched, dispatch provided him with Mr. Bunch's address, which was very close to where the officer had terminated his pursuit. Officer Ames and a few other officers arrived at this address and met a man and woman exiting the building. The man was William Brinton. Officer Ames dismissed him as the potential driver of the vehicle because he appeared older and shorter than the suspect.
Several other people left the building. Mark Martinez also exited the building. Mr. Martinez looked similar to the driver, but appeared taller, was wearing a bandana, and had different facial hair than the suspect.
Mr. Brinton then informed Officer Ames that another individual was still inside. The police officers yelled inside the building for the individual to come out. Eric Ross came out of the building and Officer Ames recognized him as the driver. The officer based this conclusion on the observations he made at the Zip Trip. Although approximately 20 minutes had passed since Officer Ames's observations at the Zip Trip, the officer testified that Mr. Ross had the same build and hair as the suspect. Officer Ames also distinguished Mr. Ross from Mr. Martinez as the suspect based on the following: Mr. Ross was not wearing a bandana, whereas Mr. Martinez was; Mr. Ross had a goatee more similar to that of the suspect than Mr. Martinez's goatee; and Mr. Martinez was about 4-5 inches taller than Mr. Ross.
Mr. Ross told the officer that he was hiding because he had an outstanding warrant. After Mr. Ross was placed in custody, Mr. Bunch, the registered owner of the vehicle, appeared on the scene. Officer Ames also eliminated Mr. Bunch as the suspect.
Mr. Ross was charged with attempt to elude a police vehicle, first degree unlawful possession of a firearm and third degree driving while license suspended or revoked.
At trial, the defense counsel questioned Officer Ames on his definition of a "taller" person. Officer Ames explained that by stating "taller," he meant approximately 6 feet, which is a height taller than he is. RP at 55-56. However, there was some confusion over the officer's definition of "taller" because Officer Ames and Mr. Ross are both 5 feet 10 inches tall, the same height. The trial judge also questioned Officer Ames. Defense counsel made no objections to the judge's questions.
The trial judge found Mr. Ross guilty of attempting to elude a police vehicle, not guilty of unlawful possession of a firearm, and dismissed the charge of driving with a suspended or revoked license. The court sentenced him to six months' confinement in the county jail. This appeal followed.
ANALYSIS Sufficiency of Evidence
In reviewing the sufficiency of the evidence to support a conviction, this court must determine whether, after viewing all of the evidence in the light most favorable to the State, any rational trier of fact could have found guilt beyond a reasonable doubt. State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992). A criminal defendant claiming insufficiency of the evidence admits the truth of all of the State's evidence, along with any reasonable inferences in favor of the State that may be drawn therefrom. Id.
The reviewing court considers circumstantial evidence to be as equally reliable as direct evidence. State v. Myers, 133 Wn.2d 26, 38, 941 P.2d 1102 (1997). The trier of fact determines the credibility of a witness, and such determinations cannot be reviewed on appeal. State v. Camarillo, 115 Wn.2d 60, 71, 794 P.2d 850 (1990).
The identity of a criminal defendant is a question of fact for the fact finder and "any relevant fact, either direct or circumstantial, which would convince or tend to convince a person of ordinary judgment in carrying on his everyday affairs, of the identity of a person should be received and evaluated." State v. Hill, 83 Wn.2d 558, 560, 520 P.2d 618 (1974).
Here, Mr. Ross contends that the State failed to prove beyond a reasonable doubt that he was the driver of the eluding vehicle. The question, then, hinges on whether the trial court acted rationally in finding Mr. Ross guilty beyond a reasonable doubt.
Taken in the light most favorable to the State, the evidence was sufficient to support Mr. Ross's conviction of eluding a police vehicle. Not only was Mr. Ross present at the address of the vehicle's registered owner, but he was also identified on site by Officer Ames as the driver. Although another person at the address had a similar appearance, Officer Ames was able to distinguish Mr. Ross based on specific characteristics. There was sufficient evidence to find Mr. Ross guilty of eluding a police vehicle.
Mr. Ross points to discrepancies in Officer Ames's testimony suggesting a possible misidentification. However, we cannot review the credibility of Officer Ames's testimony. Such determinations are made by the trier of fact. State v. Cantu, 156 Wn.2d 819, 830-31, 132 P.3d 725 (2006).
Questions from the judge
The trial court may "interrogate witnesses, whether called by itself or by a party." ER 614(b). A party's objection to the court's interrogation of a witness may be made at that time. ER 614(c). Ordinarily, a party must have made a timely objection or motion to strike in order to obtain appellate review on the admitted evidence. ER 103(a) cmt.
In this instance, the trial judge, acting as the fact finder, asked Officer Ames questions after the prosecution and defense had rested. The judge had the authority to direct questions to Officer Ames. Neither Mr. Ross nor his counsel objected to the judge's questions. Therefore, no errors, if any, were preserved for appellate review.
We affirm.
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.
KATO, J. and BROWN, J., concur.