rO.LAA, OFFILED
DIV I
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTONsliNGTo,-, APPEALS
STATE OF WASHINGTON, ) 2017 JUN 12 AH 9:
06
) No. 74559-0-1
Respondent, )
) DIVISION ONE
v. )
) UNPUBLISHED OPINION
DESTRY ADAM SCHNEBLY, )
)
Appellant. ) FILED: June 12, 2017
TRICKEY, J. — Destry Schnebly appeals his conviction of attempting to elude
a police vehicle with a sentencing enhancement of endangerment. Schnebly
argues that the State was relieved of its burden to prove the sentencing
enhancement because the special verdict form given to the jury for the sentencing
enhancement used the language "threatened with physical injury or harm," rather
than "endangerment." Because we have previously held that the language used
in Schnebly's special verdict form is proper, we affirm.
FACTS
On January 25, 2015, Snohomish County Sheriffs Deputy Bryson McGee
arrested Schnebly after a lengthy car pursuit. Deputy McGee observed that
Schnebly had two passengers in his car. Schnebly violated numerous traffic laws
and forced other cars out of the way of the pursuit. After he was arrested, Schnebly
told the officers that neither passenger could leave the car during the pursuit.
The State charged Schnebly with attempting to elude a pursuing police
vehicle while on community custody. The State alleged as an aggravating factor
that "one or more persons other than the defendant or the pursuing law
No. 74559-0-1 /2
enforcement officer were threatened with physical injury or harm by the
defendant's actions. .. as provided by RCW 9.94A.834."1
At trial, Schnebly admitted that he was guilty of attempting to elude a police
vehicle. He challenged only whether he had endangered anyone other than
himself and the officer while committing his crime.2
The jury was provided with a special verdict form that asked, "Was any
person, other than the Defendant, or a pursuing law enforcement officer,
threatened with physical injury or harm by the actions of the Defendant during his
commission of the crime of attempting to elude a police vehicle?"3 Schnebly did
not object to the special verdict form.
The jury found Schnebly guilty of attempting to elude a police vehicle and
returned a "Yes" answer on the endangerment special verdict form.4 The trial court
sentenced Schnebly to 25 months of incarceration for his offense plus an additional
12 months and one day for the endangerment sentencing enhancement.
Schnebly appeals.
ANALYSIS
Endangerment Essential Element
Schnebly argues that his due process rights were infringed when the State
was relieved of its burden of proving every element of the charged crime and
sentencing enhancement beyond a reasonable doubt. Specifically, he contends
1 Clerk's Papers(CP)at 152.
2 At the close of the State's case, Schnebly moved to dismiss the sentencing enhancement
for lack of evidence. The trial court denied the motion.
3 CP at 117.
4 CP at 117-18.
2
No. 74559-0-1/ 3
that the special verdict form did not require the State to prove "endangerment"
because it asked whether anyone was "threatened with physical injury or harm,"
instead of asking whether anyone was "endangered." The State responds that our
decision in State v. Williams, 178 Wn.App. 104, 109, 313 P.3d 470(2013), controls
and precludes Schnebly's arguments. The State also argues that Schnebly cannot
raise this error because he did not object to the verdict form below. Assuming
without deciding that Schnebly has alleged a constitutional error that we can review
for the first time on review, we agree with the State that Williams controls.
In a case involving attempting to elude a police vehicle, the State may file a
special allegation where there is sufficient evidence to show that "one or more
persons other than the defendant or the pursuing law enforcement officer were
threatened with physical injury or harm" due to the actions of the defendant. RCW
9.94A.834(1). At trial, the State must prove beyond a reasonable doubt "that the
accused committed the crime while endangering one or more persons other than
the defendant or the pursuing law enforcement officer." RCW 9.94A.834(2).
In Williams, the appellant argued that the special verdict instruction relieved
the State of its burden to prove the sentencing enhancement beyond a reasonable
doubt because it stated "threatened with physical injury or harm" instead of
"endangered." 178 Wn.App. at 109. We upheld the special verdict form because
"threatened with physical injury or harm" provided the definition of"endangerment"
and, therefore, the jury was properly instructed on the law. 178 Wn. App. at 109.
We concluded that the instructions were sufficient and did not relieve the State of
3
No. 74559-0-1 /4
its burden to prove the sentencing enhancement beyond a reasonable doubt.
Williams, 178 Wn. App. at 109.
Schnebly's argument is identical to the one raised by the defendant in
Williams. Moreover, the special verdict forms here and in Williams were based on
the Washington Pattern Jury Instructions courts are advised to use when the
defendant is charged with attempting to elude a police vehicle with the
endangerment sentencing enhancement. See 11A WASHINGTON PRACTICE:
WASHINGTON PATTERN JURY INSTRUCTIONS: CRIMINAL § 190.12, at 664 (3d ed.
2008); Williams, 178 Wn. App. at 107 n.1. Schnebly has not distinguished his case
from Williams in any way. Thus, we conclude that Schnebly has not shown that
the State was relieved of its burden of proving an essential element of the charged
offense.
Appellate Costs
Schnebly asks that no costs be awarded on appeal. Appellate costs are
generally awarded to the substantially prevailing party on review. RAP 14.2. But
-when a trial court makes a finding of indigency, that finding remains throughout
review "unless the commissioner or clerk determines by a preponderance of the
evidence that the offender's financial circumstances have significantly improved
since the last determination of indigency." RAP 14.2.
Here, the trial court found Schnebly indigent. If the State has evidence
indicating that Schnebly's financial circumstances have significantly improved
since the trial court's finding, it may file a motion for costs with the commissioner.
4
No. 74559-0-1/ 5
Affirmed.
..1,
pet g."-\e••I
WE CONCUR:
5
State Of Washington v. Destry Adam Schnebly
Combined Opinion