Opinion
No. 26828-4-III.
January 8, 2009.
Appeal from a judgment of the Superior Court for Spokane County, No. 07-1-03808-7, Jerome J. Leveque, J., entered January 24, 2008.
Affirmed by unpublished opinion per Brown, J., concurred in by Kulik, A.C.J., and Sweeney, J.
UNPUBLISHED OPINION
Following a bench trial, the court convicted Zachary Schackel of attempt to elude a pursuing police vehicle, possession of a stolen motor vehicle, reckless driving, and second degree driving while license suspended or revoked. He appeals, contending sufficient evidence does not exist to support his attempt to elude and possession convictions; and the sentencing court denied him his right to allocution. In his statement of additional grounds for review, Mr. Schackel alleges evidentiary error and evidence tampering. Finding no error, we affirm.
FACTS
The facts are drawn mainly from the trial court's unchallenged findings of fact following the bench trial. The unchallenged facts are verities on appeal. State v. Hill, 123 Wn.2d 641, 644, 870 P.2d 313 (1994).
At approximately 7:00 am, Officer Devin Presta observed an individual driving a stolen Honda Accord. He turned on his emergency lights and siren. The driver began driving the car in a reckless manner and refused to stop. Officer Beau Brannon was dispatched to assist with the vehicle pursuit.
After officers lost sight of the vehicle for a short period of time, they found the vehicle abandoned with the motor running and the driver's door open. Officers saw Mr. Schackel running nearby. A foot pursuit ensued before officers took Mr. Schackel into custody. He appeared, "out of breath, amped up, pretty anxious." Report of Proceedings (RP) at 42. Officer Brannon estimated the time between observing the abandoned car and when officers caught Mr. Schackel was one to two minutes. Mr. Schackel's fingerprints were located on the inside of the driver's-side window.
The State charged Mr. Schackel with attempt to elude a police vehicle, possession of a stolen motor vehicle, reckless driving, and second degree driving while license suspended or revoked.
Mr. Schackel waived a jury trial and the court found him guilty as charged.
During the sentencing hearing, the court imposed a 57-month sentence, and then noted it failed to allow allocution. The court then asked, "are there any other statements you wish to make?" RP at 122. Mr. Schackel responded, "No." RP at 122.
The court then re-imposed the 57-month sentence. Mr. Schackel appealed.
ANALYSIS A. Evidence Sufficiency
The issue is whether sufficient evidence exists to support Mr. Schackel's attempt to elude a police vehicle and possession of a stolen motor vehicle convictions. Mr. Schackel argues the State failed to prove he was the driver of the vehicle.
We review an evidence sufficiency challenge in a light most favorable to the State to determine whether any rational trier of fact could have found the elements of the crime beyond a reasonable doubt. State v. Hosier, 157 Wn.2d 1, 8, 133 P.3d 936 (2006). In doing so, we defer to the fact finder's resolution of conflicting testimony, witness credibility, and persuasiveness of the evidence. State v. Camarillo, 115 Wn.2d 60, 71, 794 P.2d 850 (1990).
To be convicted of attempting to elude a police vehicle, "any driver of a motor vehicle [must] willfully [fail] or [refuse] 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." RCW 46.61.024(1). Similarly, to be convicted of possession of a stolen motor vehicle an individual must "possess" a stolen vehicle. RCW 9A.56.068(1).
Here, officers pursued the driver of a stolen Honda Accord, using emergency lights and sirens. After officers lost sight of the vehicle, they located it abandoned, running and the driver's-side door open. Within two minutes, officers observed Mr. Schackel running nearby. A foot pursuit ensued. He was then caught, appearing "amped up" and "anxious." RP at 42. Mr. Schackel's fingerprints were located on the inside of the driver's-side window.
Viewing these facts most favorable to the State, any rational trier of fact could have found Mr. Schackel was the driver of the stolen vehicle. Accordingly, sufficient evidence exists to support Mr. Schackel's attempt to elude and possession convictions.
B. Allocution
The issue is whether the sentencing court denied Mr. Schackel his right to allocution. Mr. Schackel argues the court should have allowed him to make a statement before orally pronouncing his sentence.
Under RCW 9.94A.500(1), "[t]he court shall . . . allow arguments from the prosecutor, the defense counsel, [and] the offender . . . as to the sentence to be imposed." " [W]here a defendant asserts his right to allocution, the court should allow him to make a statement in allocution." State v. Canfield, 154 Wn.2d 698, 707, 116 P.3d 391 (2005) (emphasis added). Thus, in order to preserve this right, a "defendant must give the court some indication of his wish to plead for mercy or offer a statement in mitigation of his sentence." Id. Generally, we will not consider an issue raised for the first time on appeal unless it is a "manifest error affecting a constitutional right." RAP 2.5(a)(3). The allocution right "is statutorily based and is not a constitutional right." State v. Hughes, 154 Wn.2d 118, 152-53, 110 P.3d 192 (2005), overruled on other grounds by Washington v. Recuenco, 548 U.S. 212, 126 S. Ct. 2546, 165 L. Ed. 2d 466 (2006).
Mr. Schackel did not request to make a statement prior to imposition of the oral sentence. Further, he declined to make a statement after the court recognized its mistake and asked if he had any comments. Because the questioned right is statutorily based and is not a constitutional right; and because Mr. Schackel failed to raise this objection at trial, we need not address his allocution claim on review. Even so, any alleged error would be harmless since Mr. Schackel did not have a statement to make. See State v. Gonzales, 90 Wn. App. 852, 855, 954 P.2d 360 (1998) (a harmless error is one, "which in no way affects the outcome").
C. Additional Grounds
In his statement of additional grounds for review, Mr. Schackel contends Officer Brannon offered inadmissible hearsay testimony when an officer testified he saw Mr. Schackel running and argues defense counsel should have objected. Further, Mr. Schackel is concerned about possible evidence tampering.
Officer Brannon testified he helped set up a perimeter to catch the vehicle's driver and then he "saw [Mr. Schackel] in that area running." RP at 41. Mr. Schackel contends this is inadmissible hearsay because Officer Brannon did not indicate in his report he saw Mr. Schackel running. No objection was raised below. As discussed, we generally do not consider issues raised for the first time on appeal unless the claimed error is a "manifest error affecting a constitutional right." RAP 2.5(a)(3). "'Hearsay' is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." ER 801(c). Officer Brannon testified relating his perceptions. This is not hearsay. Thus, Mr. Schackel fails to demonstrate any error, let alone one that is manifest; therefore, we conclude he has waived review of his claimed issue.
Mr. Schackel argues he was denied a fair trial because defense counsel did not object to Officer Brannon's testimony. To establish ineffective assistance of counsel, Mr. Schackel must show his attorney's performance fell below an objective standard of reasonableness and that the deficiency prejudiced him. State v. McFarland, 127 Wn.2d 322, 334-35, 899 P.2d 1251 (1995). Based on our analysis, no objection was warranted. Hence, Mr. Schackel cannot show ineffective assistance of counsel.
Next, Mr. Schackel argues his conviction should be reversed because the crime scene was altered. He points to the discovery of an officer's fingerprint on personal property inside the vehicle even though the officer testified he wore gloves while searching the vehicle. A person tampers with evidence if, "having reason to believe that an official proceeding is pending or about to be instituted and acting without legal right or authority," he or she destroys or removes physical evidence "with intent to impair its appearance, character, or availability in such pending or prospective official proceeding." RCW 9A.72.150(1)(a). Evidence of an investigating officer's fingerprints on items inside a stolen vehicle does not amount to evidence tampering.
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.
Kulik, A.C.J., Sweeney, J., Concur.