FILED
JUNE 4, 2019
In the Office of the Clerk of Court
WA State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
STATE OF WASHINGTON, )
) No. 35719-8-III
Respondent, )
)
v. )
)
DEREK W. SCHILLING, ) OPINION PUBLISHED IN PART
)
Appellant. )
KORSMO, J. — Derek Schilling appeals from a conviction for attempting to elude a
police vehicle, primarily arguing that the statute is unconstitutionally vague under recent
United States Supreme Court precedent. We affirm the conviction, but remand to strike
two financial obligations.
FACTS
This case has its genesis in a vehicle chase that began after Deputy Sheriff Spencer
Rassier observed a speeding Mercury Cougar on Farr Road in Spokane Valley. He
attempted to stop the vehicle, but the driver of the Cougar refused to stop and sped away.
During a U-turn, Rassier was able to see and identify the driver as Mr. Schilling. The
fleeing vehicle ultimately reached speeds of 80 to 100 m.p.h. in a 35 m.p.h. zone. Officer
No. 35719-8-III
State v. Schilling
Rassier eventually called off the pursuit when it neared a hospital because Schilling was
driving “recklessly.”
Shortly thereafter, a deputy sheriff, Randy Watts, observed the vehicle crash while
crossing train tracks. The vehicle suffered significant front end damage. The driver was
not in sight, so Watts waited for Deputy Tyler Kullman and his dog, Kahn, to arrive.
Kahn tracked from the open driver’s door and soon located Mr. Schilling on a ridgeline
of a nearby hill.
Deputy Kullman, when asked at trial, explained how the dogs track humans:
Our dogs are trained to find human odor, especially when someone is
running from us or trying to hide, they produce what we call a fear scent.
They can’t not produce it. Your armpits start sweating, all this stuff starts
happening, your adrenaline’s going, and a seasoned dog like Kahn, they
pick up on that fear scent really quickly along with just the human scent
they’re trained from day one to track.
Report of Proceedings (RP) at 61. His testimony also explained how a person’s scent,
made up of the skin cells humans constantly shed, mixes with that of the newly disturbed
ground to produce a unique, fresh scent for the dog. RP at 57-59.
Mr. Schilling testified that he was a passenger in the car who urged the driver, an
unnamed friend, to stop driving dangerously while fleeing the police. He had to exit out
the driver’s door because the passenger door was damaged. He fled because he knew
there was a warrant for his arrest.
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The jury found Mr. Schilling guilty. After the trial court imposed a standard range
sentence, he timely appealed to this court. A panel heard oral argument of the case.
ANALYSIS
This appeal presents a vagueness challenge to the eluding statute, alleges that two
of the deputies provided improper opinion testimony, and contests two of the financial
assessments of the judgment and sentence. We address the three claims in the stated
order.
Eluding Statute
Mr. Schilling initially argues that the “driving in a reckless manner” element of the
eluding statute is unconstitutionally vague in light of Johnson v. United States, 576 U.S.
___, 135 S. Ct. 2551, 192 L. Ed. 2d 569 (2015). We conclude that Johnson did not
change existing law for assessing vagueness claims.
The attempting to elude statute is found at RCW 46.61.024(1), which provides:
Any driver of a motor vehicle who willfully fails or refuses to immediately
bring his or her vehicle to a stop and who drives his or her 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, shall be
guilty of a class C felony. 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.
(Emphasis added.)
The “reckless manner” element was enacted in 2003; it replaced a previous
prohibition on driving that demonstrated “a wanton or willful disregard for the lives or
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property of others” while attempting to elude.1 See LAWS OF 2003, ch. 101, § 1 (amending
LAWS OF 1983, ch. 80, § 1). The reckless manner element was borrowed from the
vehicular homicide and vehicular assault statutes. See RCW 46.61.520(1)(b); RCW
46.61.522(1)(a).
A statute is unconstitutionally vague if (1) it does not define the offense with
sufficient definiteness so that ordinary people can understand what conduct is prohibited,
or (2) it does not provide ascertainable standards of guilt to protect against arbitrary
enforcement. State v. Williams, 144 Wn.2d 197, 203, 26 P.3d 890 (2001); City of
Spokane v. Douglass, 115 Wn.2d 171, 178, 795 P.2d 693 (1990). The reviewing court
presumes that a statute is constitutional, and the party challenging the statute’s
constitutionality bears the burden of proving the statute’s invalidity beyond a reasonable
doubt. City of Seattle v. Eze, 111 Wn.2d 22, 26, 759 P.2d 366 (1988). The burden is a
heavy one. Douglass, 115 Wn.2d at 178.
Traditionally, a defendant may only bring a vagueness challenge to the statute as it
was applied to his particular conduct. Id. at 182. This is one of two approaches to a
vagueness challenge:
The rule regarding vagueness challenges is now well settled. Vagueness
challenges to enactments which do not involve First Amendment rights are
to be evaluated in light of the particular facts of each case. Maynard v.
1
The “wanton and willful” standard continues to define the crime of reckless
driving. RCW 46.61.500.
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Cartwright, 486 U.S. 356, 361, 108 S. Ct. 1853, 1857, 100 L. Ed. 2d 372
(1988); Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489,
495 n. 7, 102 S. Ct. 1186, 1191 n. 7, 71 L. Ed. 2d 362, reh’g denied, 456
U.S. 950, 102 S. Ct. 2023, 72 L. Ed. 2d 476 (1982); United States v.
Powell, 423 U.S. 87, 92-93, 96 S. Ct. 316, 46 L. Ed. 2d 228 (1975); United
States v. Mazurie, 419 U.S. 544, 550, 95 S. Ct. 710, 42 L. Ed. 2d 706
(1975); United States v. National Dairy Prods. Corp., 372 U.S. 29, 32-33,
36, 83 S. Ct. 594, 597-598, 9 L. Ed. 2d 561 (1963). See also State v.
Carver, 113 Wn.2d 591, 599, 781 P.2d 1308, 789 P.2d 306 (1989); [State v.
Worrell, 111 Wn.2d 537, 541, 761 P.2d 56 (1988)]. Consequently, when a
challenged ordinance does not involve First Amendment interests, the
ordinance is not properly evaluated for facial vagueness. Rather, the
ordinance must be judged as applied. Maynard, 486 U.S. at 361.
Accordingly, the ordinance is tested for unconstitutional vagueness by
inspecting the actual conduct of the party who challenges the ordinance and
not by examining hypothetical situations at the periphery of the ordinance’s
scope.
Id. at 182-83.
Using the “as applied” standard, our courts long have upheld the driving in a
“reckless manner” language against vagueness challenges. E.g., State v. Jacobsen, 78
Wn.2d 491, 498, 477 P.2d 1 (1970) (negligent homicide); State v. Hill, 48 Wn. App. 344,
348, 739 P.2d 707 (1987) (vehicular assault). Schilling acknowledges this authority, but
suggests that it has been superseded by Johnson.
In Johnson, the United States Supreme Court faced yet another challenge to the
“residual clause” of the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e)(2)(b).
The statute penalized certain offenders who had three or more prior “violent felony”
offenses, and, in part, defined “violent felony” as a “burglary, arson, or . . . conduct that
presents a serious potential risk of physical injury to another.” Id. (emphasis added). In
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prior cases construing the ACCA, the Court had concluded that Congress intended it
apply a “categorical” approach to assessing whether conduct fit the residual clause:
In Taylor v. United States, 495 U.S. 575, 600, 110 S. Ct. 2143, 109 L. Ed.
2d 607 (1990), this Court held that the Armed Career Criminal Act requires
courts to use a framework known as the categorical approach when
deciding whether an offense “is burglary, arson, or extortion, involves use
of explosives, or otherwise involves conduct that presents a serious
potential risk of physical injury to another.” Under the categorical
approach, a court assesses whether a crime qualifies as a violent felony “in
terms of how the law defines the offense and not in terms of how an
individual offender might have committed it on a particular occasion.”
[Begay v. United States, 553 U.S. 137, 141, 128 S. Ct. 1581, 170 L. Ed. 2d
490 (2008), abrogated by Johnson v. United States, 135 S. Ct. 2551, 192 L.
Ed. 2d 569 (2015)].
192 L. Ed. 2d at 578.
Johnson noted that its prior case law showed great difficulty in applying the
categorical approach to residual clause cases. Id. at 578-81. In other words, the statutory
construction tool mandated by the statute was ineffectual. The Court then subjected the
categorical approach to the first of the traditional prongs of vagueness analysis—the
ability to understand what type of conduct fits within the statute. Id. at 578-79. Noting
that prior cases had difficulty in finding a methodology for applying the categorical
approach, let alone reaching consensus as to the meaning in any particular case, the court
concluded that the residual clause was vague since the necessary construction tool did not
work. Id. at 581-83.
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Nothing in Johnson suggests that the “as applied” standard has been supplanted as
the method for assessing vagueness challenges when First Amendment concerns are
absent. The “as applied” standard was not discussed, let alone overruled or relegated to
some constitutional backwater. It simply was not a relevant concern since the statute, as
construed by the Supreme Court, precluded consideration of the facts of an individual
case.
Mr. Schilling reads too much into the Johnson opinion.2 It does not change
vagueness analysis except to perhaps add an additional approach when legislation
dictates that a statute be construed in a manner that precludes “as applied” consideration.
It does no more than that.
In light of Jacobsen and Hill, Mr. Schilling’s vagueness argument is without
merit. The “reckless manner” language does not render the eluding statute vague.
A majority of the panel having determined that only the foregoing portion of this
opinion will be printed in the Washington Appellate Reports and that the remainder,
having no precedential value, shall be filed for public record pursuant to RCW 2.06.040,
it is so ordered.
We note that the Washington Supreme Court has continued to use the “as
2
applied” test since the Johnson opinion was issued without any apparent concern that the
standard has changed. E.g., State v. Evergreen Freedom Found., 192 Wn.2d 782, 432
P.3d 805 (2019); State v. Murray, 190 Wn.2d 727, 416 P.3d 1225 (2018).
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Comments on Guilt
Mr. Schilling next argues that two of the deputies wrongly expressed comments on
his guilt by describing his driving as “reckless” and testifying that the dog was tracking a
“fear scent.” We need not determine whether these unchallenged statements constituted
error since any error is not manifest.
Well settled law governs these contentions. A proper objection must be made at
trial to perceived errors in admitting or excluding evidence; the failure to do so precludes
raising the issue on appeal. State v. Guloy, 104 Wn.2d 412, 421, 705 P.2d 1182 (1985),
cert. denied, 475 U.S. 1020 (1986). “‘[A] litigant cannot remain silent as to claimed
error during trial and later, for the first time, urge objections thereto on appeal.’” Id.
(quoting Bellevue Sch. Dist. 405 v. Lee, 70 Wn.2d 947, 950, 425 P.2d 902 (1967)).
An exception to this general rule exists if the issue involves a manifest error
affecting a constitutional right. RAP 2.5(a). A party is first required to establish the
existence of error that is constitutional in nature. If such an error is demonstrated, the
party must then show that the error was not harmless and actually had an identifiable and
practical impact on the case. State v. Kirkman, 159 Wn.2d 918, 934-35, 155 P.3d 125
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(2007); State v. Scott, 110 Wn.2d 682, 687-88, 757 P.2d 492 (1988). A witness cannot
express the opinion that the defendant is guilty. State v. Montgomery, 163 Wn.2d 577,
591, 594, 183 P.3d 267 (2008). Opinion testimony indirectly related to an ultimate fact is
not a “manifest” constitutional error that may be raised for the first time on appeal.
Kirkman, 159 Wn.2d at 936. Instead, in order to constitute manifest error, the testimony
must be a “nearly explicit” comment on credibility. Id.
Both of the comments Mr. Schilling now challenges were consistent with his own
testimony. He testified that he urged his buddy to stop because the driving scared him.
He admitted that he was in the car and fled from the police because of his arrest warrant;
he was the one the dog tracked. Neither of the now-challenged comments addressed
issues of import at the trial. The contested issue in this case was the identity of the driver,
not the manner of his driving, nor the fact that Mr. Schilling fled the car after the crash.
The alleged errors are not manifest.
Financial Assessments
Mr. Schilling also argues that the trial court cannot impose the filing fee and DNA
collection fee in light of legislation passed subsequent to his sentencing. Those statutory
changes do apply retroactively to cases on appeal. State v. Ramirez, 191 Wn.2d 732, 735,
426 P.3d 714 (2018). Accordingly, we direct that the two fees be struck.
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The conviction is affirmed. Remanded to strike the noted financial assessments.
WE CONCUR:
ahw.
;izSiddoway, J. �
/ ff-.
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