FILED
NOVEMBER 16, 2017
In the Office of the Clerk of Court
WA State Court of Appeals, Division Ill
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
STATE OF WASHINGTON, )
) No. 34745-1-111
Respondent, )
)
V. )
)
BENJAMIN GORDON SWOFFORD JR., ) UNPUBLISHED OPINION
)
Appellant. )
KORSMO, J. - Benjamin Swofford, Jr., raises several challenges to his conviction
for attempting to elude, including an argument that the trial court wrongly denied him a
necessity defense. He was not entitled to present a necessity defense under the facts of
this case, so we affirm.
FACTS
The incident that led Spokane authorities to file the eluding charge occurred late in
the evening of December 6, 2015. An officer spotted Mr. Swofford's minivan in High
Bridge Park, travelling 50 to 55 miles per hour on a small gravel road during inclement
weather. As the officer attempted to catch up, Mr. Swofford responded by driving
around a van stopped at a stop sign at the comer of A Street and Riverside Avenue and
into the intersection without stopping. He then accelerated away at a high rate of speed.
No. 34745-1-111
State v. Swofford
The officer activated his emergency lights and began pursuing Swofford. When
he caught up to Swofford's vehicle, the officer turned on his siren. The siren remained
on for the remainder of the pursuit, except for moments when it was deactivated to allow
the officer to speak with dispatch. When the officer got close to the vehicle to attempt to
ascertain its license plate, Mr. Swofford would hit the brakes and then accelerate away
while the officer was slowing.
The pursuit continued onto Government Way. Mr. Swofford drove on both sides
of the street. He turned on to Fort George Wright Drive, driving past Spokane Falls
Community College. He continued his tactic of hitting the brakes and then accelerating.
He also used both sides of the four lane road, forcing traffic to pull over and stop as he
swerved back and forth.
Police ahead of the pursuit placed spike strips on the T.J. Meenach Bridge and
made one southbound motorist pull over to avoid the spike stripes. Swofford hit the
spike strip without slowing down and continued to drive northbound up a hill despite
punctured tires. An officer estimated his speed at 60 miles per hour in the 30 mile per I
hour zone. The minivan started slowing due to three punctured tires and the pursuing l
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officer caught up. The officer struck the minivan with his car, forcing it to stop.
The police took Mr. Swofford, the sole occupant of the minivan, into custody. He
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made several comments during this period, including requesting the police call his I
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mother to tell her that he had "f---ed up" and to notify his girlfriend that he "f---ed her car
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up." I
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The prosecution filed one count of attempting to elude and an accompanying I
endangerment enhancement. The case proceeded to jury trial. The defense indicated an
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intent to pursue a common law necessity defense. To that end, the defense made an offer
of proof that Mr. Swofford was hurrying back home because he had received word that
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his stepdaughter had overdosed on drugs and no emergency aid had yet arrived. Since he
had the only available vehicle, he was hurrying to her aid and was unaware of the police
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officer chasing him.
The trial court declined to allow the defense or supporting testimony, determining
that necessity was not an available defense and that the testimony was not relevant to any
issue before the jury. The defense thereafter did not submit any jury instructions, but did
adopt as its own the prosecutor's proposed instruction concerning the defendant's
decision not to testify. The defense argued the case to the jury on a theory that it was a
dark and foggy night and there was no indication that Mr. Swofford knew the police were
pursuing him.
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The jury, however, found Mr. Swofford guilty and also returned a special verdict I
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indicating that others had been endangered by the driving. The court imposed a top end !
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enhanced sentence for the crime. The court also noted that no community custody could 1
be imposed. It added a null mark, 0, to the line indicating that 12 months of community I
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custody was being imposed. Mr. Swofford then timely appealed to this court. A panel
considered the matter without hearing argument.
ANALYSIS
Mr. Swofford challenges the trial court's denial of his necessity defense, presents a
claim that his counsel rendered ineffective assistance by failing to offer an instruction on
willfulness, and contends that the evidence did not support the verdict or the special
enhancement. He also argues, and the State agrees, that the court imposed a term of
community custody by adding the 0 mark. We address those contentions in the order
noted.
Necessity Defense
Mr. Swofford contends that his proposed testimony was admissible for several
reasons and justified instructing the jury on necessity. We agree with the trial court's
conclusion that the testimony was not admissible.
Trial court judges have great discretion with respect to the admission of evidence
and will be overturned only for manifest abuse of that discretion. State v. Luvene, 127
Wn.2d 690, 706-707, 903 P.2d 960 (1995). Discretion is abused where it is exercised on
untenable grounds or for untenable reasons. State ex rel. Carroll v. Junker, 79 Wn.2d 12,
26, 482 P .2d 77 5 ( 1971 ). Evidence is relevant if it makes "the existence of any fact that
is of consequence to the determination of the action more probable or less probable." ER
401. Relevant evidence is generally admissible at trial, but can be excluded where its
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value is outweighed by other considerations such as misleading the jury or wasting time.
ER 402; ER 403.
The crime of attempting to elude a pursing police officer is committed when a
driver "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[ll 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). The statute also provides an affirmative defense:
It is an affirmative defense to this section which must be established by a
preponderance of the evidence that: (a) A reasonable person would not
believe that the signal to stop was given by a police officer; and (b) driving
after the signal to stop was reasonable under the circumstances.
RCW 46.61.024(2).
The defense of necessity is recognized by Washington common law. That defense
excuses criminal conduct when pressure brought on "by forces of nature" leads to a
criminal act that avoids a greater harm. State v. Gallegos, 73 Wn. App. 644, 651, 871
P.2d 621 (1994); State v. Turner, 42 Wn. App. 242,247, 711 P.2d 353 (1985); State v.
Diana, 24 Wn. App. 908,604 P.2d 1312 (1979). Citing to the Model Penal Code, this
court concluded in Diana that the defense would be available when the defendant
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"Reckless manner" is a term of art within the traffic code. See RCW 46.61.520
(vehicular homicide); RCW 46.61.522 (vehicular assault). It means to operate a vehicle
in a "rash or heedless manner, indifferent to the consequences." State v. Roggenkamp,
153 Wn.2d 614,631, 106 P.3d 196 (2005).
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established that due to outside circumstances not of her own causing she committed an
illegal act in order to avoid a greater harm. 24 Wn. App. at 913-914. The common law
defense is unavailable when the legislature has provided a statutory defense. Id.
The elements of the defense are memorialized in WPIC 18.02. It provides:
( 1) the defendant reasonably believed the commission of the crime was
necessary to avoid or minimize a harm; and
(2) harm sought to be avoided was greater than the harm resulting from a
violation of the law; and
(3) the threatened harm was not brought about by the defendant; and
(4) no reasonable legal alternative existed.
11 WASHINGTON PRACTICE: WASHINGTON PATTERN JURY INSTRUCTIONS: CRIMINAL
18.02, at 292 (4th ed. 2016).
Against this backdrop, we turn to Mr. Swofford's two specific arguments. He first
claims that evidence of his "state of mind" was relevant to rebut the will fullness element
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of the eluding statute. The problem with this argument, however, is that he expressly Ii
eschewed a diminished capacity defense at trial. He also had no expert to testify that he i
suffered from a mental disease or defect that affected his behavior to act willfully. 2 State
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v. Stumpf, 64 Wn. App. 522, 524-526, 827 P.2d 294 (1992). "State of mind" testimony II
was not relevant absent sufficient evidence that he lacked the ability to form the requisite
mental state. Id. Here, there was no testimony that would permit the evidence. I
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This approach also was inconsistent with the theory that he was acting out of I
necessity-i.e., his behavior was willful, but justified.
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Mr. Swofford also argues that the testimony about his stepdaughter's condition
was relevant to establish the statutory defense. However, it was not. The statutory
defense required proof that the driver did not believe that the signal to stop was being
given by a police officer and that he drove in a reasonable manner thereafter. While Mr.
Swofford was permitted to testify about those elements, he did not attempt to do so. His
stepdaughter's drug overdose had no bearing on whether he did not believe the signal to
stop came from someone who was not a peace officer, so it was irrelevant to that
discussion.
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Finally, although he does not reprise his trial court argument that the common law
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necessity defense was available to him, we will note that it was not. Even if that defense
survived the creation of the statutory defense, a question we are not asked to answer in
this appeal, it simply did not apply to the facts of this case. We have previously
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concluded that the necessity defense did not apply when a defendant claimed he was
eluding police to race to the aid of a friend. See Gallegos, 73 Wn. App. at 650-651
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(friend's need of aid was not "forces of nature" that would support necessity defense). It I
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also is not reasonable to flee from someone who could provide the very aid that Mr.
Swofford claimed he needed to provide. A reasonable person in his shoes would have
immediately stopped his car and told the officer about the circumstance, rather than
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continue dangerous behavior threatening others on the road. Given the existence of this
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legal alternative, the continued flight precluded a necessity defense. WPIC 18.02(4)
(defense only available if "no reasonable legal alternative existed").
For all of these reasons, the "state of mind" evidence was irrelevant. It did not
support a diminished capacity defense, nor did it support any defense to the eluding
charge.
Ineffective Assistance of Counsel
Mr. Swofford also argues that his attorney rendered ineffective assistance by
failing to propose an instruction on "willfully." He has not established that his counsel
erred, let along that he was harmed by this omission.
The failure to request a jury instruction typically precludes review of the court's
failure to give the instruction. State v. Scott, 110 Wn.2d 682, 689-691, 757 P.2d 492
(1988). Thus, Mr. Swofford recasts this issue as a failure of his attorney to provide
effective assistance under the Sixth Amendment's guaranty of counsel. Counsel's failure
to live up to the standards of the profession will require a new trial when the client has
been prejudiced by counsel's failure. State v. McFarland, 127 Wn.2d 322, 334-335, 899
P .2d 1251 (1995). In evaluating ineffectiveness claims, courts must be highly deferential
to counsel's decisions. A strategic or tactical decision is not a basis for finding error.
Strickland v. Washington, 466 U.S. 668, 689-691, 104 S. Ct. 2052, 80 L. Ed. 2d 674
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(1984). Under Strickland, courts apply a two-prong test: whether or not (1) counsel's
performance failed to meet a standard of reasonableness and (2) actual prejudice resulted
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No. 34745-1-111
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from counsel's failures. Id. at 690-692. When a claim can be resolved on one ground, a
reviewing court need not consider both Strickland prongs. Id. at 697; State v. Foster, 140
Wn. App. 266,273, 166 P.3d 726, review denied, 162 Wn.2d 1007 (2007).
Long-standing principles govern our review of jury instruction questions. Trial
courts have an obligation to provide instructions that correctly state the law, are not
misleading, and allow the parties to argue their respective theories of the case. State v.
Dana, 73 Wn.2d 533, 536-537, 439 P.2d 403 (1968). The instructions must set forth the
elements of the crimes that are before the jury. State v. Allen, 101 Wn.2d 355, 358, 678
P.2d 798 (1984). There is no need to define those elements that are commonly
understood. Id. However, when the elements have technical definitions, the definitional
instruction must be given when requested. Id. at 358, 361-362. The failure to request an
instruction, or to challenge the trial court's failure to give a requested instruction, waives
the issue on appeal. Scott, 110 Wn.2d at 686; RAP 2.5(a). 3
Critical to this case is State v. Flora, 160 Wn. App. 549, 249 P.3d 188 (2011).
There Division One of this court ruled that, upon request, a trial court must define the
term "willfully" in an attempt to elude prosecution. Id. at 553. However, as previously
noted, any direct challenge by Mr. Swofford to the trial court's failure to define
3
Certain limited instructional errors, largely involving the elements or burden of
proof instructions, do present issues of manifest constitutional error that can be reviewed
on appeal. State v. O'Hara, 167 Wn.2d 91, 100-101, 217 P.3d 756 (2009).
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"willfully" would fail under Scott because there was no challenge to the absence of the
instruction. Technical term definitions are not so fundamental that a court must give
them in the absence of a request. Allen, 101 Wn.2d at 358. Having not challenged the
absence of the willfulness instruction in the trial court, Mr. Swofford cannot do so here.
Scott, 110 Wn.2d at 686. Thus, he must show both that his counsel erred in not seeking
the instruction and that his defense was harmed by its absence.
Since it is not a required instruction, we do not believe that counsel erred by
failing to propose an instruction on willfullness. It also does not appear to have been
necessary given the defense of factual ignorance about the pursuing officer. In addition,
it may well have worked to the detriment of the defense to have used the instruction.
Defense attorneys often will decide not to propose definitional jury instructions because
they assume the common understanding of a term will be in their client's favor. State v.
Pottorff, 138 Wn. App. 343, 349-350, 156 P.3d 955 (2007). "Attempting to elude" does
not require that the prosecution prove intent to elude, but there can be no attempt to elude
unless the driver knows that he is being signaled to stop. Flora, 160 Wn. App. at 555.
The term "willfully" has more than one possible definition. At common law, it
was often used to denote a standard higher than knowledge. In re Estate of Kissinger,
142 Wn. App. 76, 80-81, 173 P.3d 956 (2007). The eluding statute, on the other hand,
equates willfulness with knowledge. Flora, 160 Wn. App. at 553. The thesis of Mr.
Swofford's closing argument was that "we don't know if Mr. Swofford saw the signal to
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No. 34745-1-111
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stop. We don't know if he willfully failed to do that." This phrasing indicates that
defense counsel was implying "willfully failed" meant intent to elude, not merely
knowledge of a signaling police officer. Accordingly, this court cannot necessarily
conclude the attorney's decision was not a legitimate trial tactic and therefore the failure
to request the instruction was not deficient performance.
Mr. Swofford also cannot show that his defense was harmed by the absence of the
instruction. He argued that he did not know that the officer was behind him. How an
instruction equating knowledge with willfulness would have been helpful in that context
is unclear. He was better off if the jury believed willfulness equated with intent or some
other mental state than mere knowledge. The instruction would not have been helpful.
Mr. Swofford has failed to establish either that his counsel erred or that he was
harmed by the alleged error. Since he needed to do both, his claim of ineffective
assistance is without merit.
Sufficiency of the Evidence
Mr. Swofford also argues that the evidence did not support either the eluding
charge or the endangerment enhancement. Properly viewed, the evidence supported both.
The standards governing review of this issue are well understood. The reviewing
court does not weigh evidence or sift through competing testimony. Instead, the question
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presented is whether there is sufficient evidence to support the determination that each
element of the crime was proved beyond a reasonable doubt. Jackson v. Virginia, 443 j
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U.S. 307,319, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979); State v. Green, 94 Wn.2d 216,
221, 616 P.2d 628 (1980). The reviewing court will consider the evidence in a light most
favorable to the prosecution. Green, 94 Wn.2d at 221. Reviewing courts also must defer
to the trier of fact "on issues of conflicting testimony, credibility of witnesses, and the
persuasiveness of the evidence." State v. Thomas, 150 Wn.2d 821, 874-875, 83 P.3d 970
(2004).
With respect to the eluding charge, Mr. Swofford argues that the evidence did not
support the determination that he willfully failed to stop, pointing to the lack of any direct
evidence that he saw or heard the officer behind him. The circumstantial evidence of his
driving behavior allowed the jury to infer that he knew that the officer was behind him
and willfully drove to elude the pursuer.
An officer who viewed the defendant's vehicle noted that while there was
equipment in the back, the driver's view to the rear was not obstructed. In the course of
the chase, Mr. Swofford used the oncoming traffic lanes and swerved back and forth
between his lane and that one for no apparent reason other than to prevent the officer
from seeing his license plate. When the officer did get close, Swofford's vehicle would
brake, forcing the pursuer to slow down and allowing Swofford to speed away. He then
drove through the spike strip at high speed and continued up the hill with deflated and
deflating tires at 60 miles per hour, nearly double the posted speed limit. When he was
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No. 34745-1-III
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apprehended, his first words were that he had "f---ed up." It is difficult to believe that he
would admit fault for doing something he did not know he was doing.
While certainly other explanations for his behavior were possible, the test for
sufficiency of evidence does not require exclusion of competing possibilities. The
purposeful, evasive driving allowed the jury to infer that he was willfully refusing to stop
for the officer behind him. Ergo, it was sufficient to support the jury's verdict.
The enhancement charged in Mr. Swofford's case required proof that, as a result
of his driving, "one or more persons, other than the defendant or the pursuing law
enforcement officer, were threatened with physical injury or harm." Clerk's Papers at 6.
On appeal, Mr. Swofford argues that the evidence did not establish that anyone was
threatened with physical injury or harm by his driving.
While this is a closer question than the previous argument, the evidence still
allowed the jury to make the determination that it did. Mr. Swofford passed his first
vehicle illegally at a stop sign that he did not obey, thereby endangering the driver he
passed who could not have been expecting that action and probably was awaiting traffic
to clear before going on past the stop sign. The driving during the pursuit ranged at
speeds estimated at 50 to 60 miles per hour in areas zoned for 30 and 35 miles per hour,
including through an area near the community college that has many apartment
complexes. Mr. Swofford's use of both sides of the roadway, coupled with the very high
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speeds for a residential area, led to at least three cars pulling to the side of the road. In II
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No. 34745-1-111
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addition, the police officer waiting near the spike strips on the bridge and another car
pulled over at the location were potentially endangered if Mr. Swofford had lost control
when driving through that barrier at high speed. He then drove off at 60 miles per hour
on failing tires and through a traffic light before the pursuing officer forced him off the
road. All of this occurred in foggy weather.
At least four drivers had to stop to ensure their own safety due to Mr. Swofford's
driving, and a fifth one was illegally passed at a stop sign. This was not a pursuit on an
empty stretch of rural freeway during a clear afternoon. While it was late and traffic was
much lighter than during daylight hours, there were other drivers out who had to respond
to Mr. Swofford and his unsafe driving. The jury was permitted to conclude that they
were endangered by his behavior, even if they were not actually harmed by it.
The evidence supported the jury's verdict on the eluding charge and on the
endangerment enhancement.
Community Custody
Lastly, Mr. Swofford and the prosecutor both argue that the trial court erroneously
imposed community custody for 12 months by placing the null sign on the community
custody line of the judgment and sentence. On its face, the null marker means zero,
nothing, nada, zilch, nihil, or any other synonym for none. In light of that mark, as well
as the court's express acknowledgement that it was not imposing community custody
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No. 34745-1-111
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because it could not do so, we have no hesitancy in saying that community custody was
not imposed.
However, in light of the position of the parties who seem to believe that 12 months
of community custody was imposed, we remand to the superior court for entry of an
order clarifying that no community custody was imposed.
Affirmed and remanded.
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.
WE CONCUR:
Lawrence-Berrey, A.
1-;0-~w~l~-
siddoway, 1:
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