FILED NOVEMBER 20, 2025 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STATE OF WASHINGTON, ) ) No. 40196-1-III Respondent, ) ) v. ) ) AUSTIN CECIL ERICKSON, ) UNPUBLISHED OPINION ) Appellant. )
COONEY, J. — A jury found Austin Erickson guilty of the crime of attempting to
elude a pursuing police vehicle. The jury further found the aggravating circumstance that
Mr. Erickson endangered one or more persons, other than himself or the pursuing officer,
while committing the crime. The court imposed a standard range sentence plus a year
and a day for the aggravating circumstance, totaling 15 months. The court further
ordered Mr. Erickson to pay a $500 fine. No. 40196-1-III State v. Erickson
Mr. Erickson appeals, arguing: (1) there was insufficient evidence to convict him
of attempting to elude and to support the aggravating circumstance; (2) the court’s
instructions to the jury were misleading and did not properly inform the jury of the
applicable law; (3) the court erroneously allowed prejudicial testimony that he was
“wanted;” (4) his right to a jury trial was violated at sentencing; (5) the court erred by not
conducting a comparability analysis for his out-of-state convictions; and (6) the $500 fine
was erroneously imposed. We disagree with each of his arguments and affirm.
BACKGROUND
On the evening of September 26, 2023, Mr. Erickson’s brother, Rylan Erickson,
and his father, Scott Erickson, 1 were at “a family property” when they saw Mr. Erickson
driving his vehicle, a Chevrolet Malibu, and “attempting to enter the property.” Rep.
of Proc. (RP) at 206-07. After spotting Mr. Erickson, Rylan called a nonemergency
dispatch line to report a “wanted fugitive.” RP at 213. Rylan and Scott followed Mr.
Erickson’s vehicle while on the telephone with dispatch and relayed Mr. Erickson’s
name, location, and license plate information.
Deputy Nathan Conley received the call from dispatch regarding Mr. Erickson.
Deputy Conley “[ran] an inquiry” using Mr. Erickson’s name and date of birth and
1 Scott Erickson’s full name is Brian Scott Erickson, but he prefers to go by “Scott.” RP at 172. Rylan Erickson is referred to by his first name and Brian Scott Erickson is referred to as Scott for clarity. No disrespect is intended.
2 No. 40196-1-III State v. Erickson
confirmed Mr. Erickson was “wanted.” RP at 135. The deputy observed Mr. Erickson’s
vehicle on 13th Street and almost immediately saw Mr. Erickson “cross[] over the lane
of travel without signaling and fail[] to signal as [he] went west onto Elm Street” at a
“high rate of speed.” RP at 136. Deputy Conley activated his emergency lights and
sirens but quickly terminated pursuit when it became “obvious” Mr. Erickson was not
going to stop. RP at 141. Deputy Conley canvassed the area for Mr. Erickson and his
vehicle. The Chevrolet Malibu was later located.
Mr. Erickson was subsequently arrested and charged with attempting to elude a
pursuing police vehicle with a special allegation that “one or more persons other than the
Defendant or the pursuing law enforcement officer were threatened with physical injury
or harm by the actions of the person committing the crime of attempting to elude a police
vehicle” (hereinafter “endangerment enhancement”). Clerk’s Papers (CP) at 1. The case
proceeded to a jury trial.
The State filed a “Motion to Include Specific Evidence and Testimony” requesting
that it be permitted to “introduce testimony or evidence regarding any warrants for
[Mr. Erickson’s] arrest that were active on September 26, 2023” prior to trial. CP at 6.
The State argued Mr. Erickson had two active warrants, and the “existence of these
warrants provide[d Mr. Erickson] with a motive to flee from Deputy Conley” and were
“circumstantial evidence” that Mr. Erickson knew Deputy Conley intended to pull him
over. CP at 6. The State contended the probative value of the evidence outweighed any
3 No. 40196-1-III State v. Erickson
prejudicial effect because it would provide the jury “with an insight into” Mr. Erickson’s
“mens rea that they would not otherwise have.” CP at 7. The State further claimed that
“any prejudice that may result to [Mr. Erickson] from the implication that he had
previously been involved in criminal activity may be prevented by providing the jury
with an instruction limiting the purposes for which they may consider the evidence.” RP
at 7. The State also offered to instruct its witnesses “not to discuss the nature of the
underlying crimes.” CP at 7. Mr. Erickson opposed the motion.
The court granted the State’s motion and permitted it “to offer testimony or any
other form of evidence that [Mr. Erickson] had active warrants for his arrest” but ordered
the State “to refrain from offering testimony or any other form of evidence concerning
the nature of the underlying crimes.” CP at 8. At a pretrial hearing, the court reiterated
that “the officers can say that they ran the plates, his name, and knew he had a warrant,
but not what crime you had outstanding because I feel that’s overly prejudicial and I
don’t want that to happen.” RP at 19. The court never provided the jury with a limiting
instruction.
At trial, Rylan, Scott, and Deputy Conley testified for the State. Mr. Erickson
testified in his own defense.
Rylan testified consistent with the above. He also testified that Mr. Erickson was
in the driver’s seat of the Chevrolet Malibu when he first spotted him. During Rylan’s
testimony, the State moved to admit a recording of the call to law enforcement. The call
4 No. 40196-1-III State v. Erickson
was admitted as exhibit P-3 and played for the jury. Rylan is heard telling dispatch he
“would like to report a wanted fugitive.” RP at 213. Rylan is also heard telling the
operator that “[Mr. Erickson is] speeding up, trying to get out. He just took a left onto
Elm.” RP at 219. Rylan testified that Mr. Erickson “took off like a bat out of hell.” RP
at 210. Rylan and Scott both testified they had been informed that Mr. Erickson “was in
some sort of trouble” and to call law enforcement if they saw him. RP at 178.
Deputy Conley testified he received a call from dispatch regarding a “wanted
person.” RP at 132. When he reached 13th Street, he saw Rylan and Scott in a white
truck and located Mr. Erickson’s vehicle. He then confirmed “that the name that had
been mentioned was actually wanted, so I’m not just chasing or going after somebody
trying to catch up with somebody for nothing.” RP at 134. Deputy Conley executed a
“two or three-point turn,” caught up to Rylan and Scott, and requested that dispatch tell
them to pull off so he “could try to effect a traffic stop.” RP at 135. The deputy testified:
As soon as I turn around, I did see the truck following [Mr. Erickson] and almost immediately [Mr. Erickson] crossed over the lane of travel without signaling and failed to signal as [he] went west onto Elm Street, into the 1300 block. And it was at a high rate of speed. The way I would describe it, it was an exhibition of speed—accelerating quickly.
CP at 136. He estimated Mr. Erickson was traveling “at least 100 mph.” CP at 137. He
activated his “emergency overhead lights and audible sirens” but quickly deactivated
them because “it was obvious to me that the vehicle—the driver—was not going to—or
5 No. 40196-1-III State v. Erickson
wasn’t making any attempt to yield or stop to my emergency lighting or audible sirens
and wasn’t going to, given the manner in which he was driving.” RP at 141.
Deputy Conley testified that Elm Street is “a two-lane residential roadway, one
lane in either direction” lined mostly with “houses” and “a few commercial businesses
and a church.” RP at 138. He stated Mr. Erickson “made no effort—sign of—indication
of braking or slowing before just blowing straight through the stop sign” on 15th Street.
RP at 140.
During Deputy Conley’s testimony, the State moved to admit a video recording of
the incident taken from the dash camera of Deputy Conley’s vehicle. The 1 minute and
13 second video was admitted as exhibit P-1 and played for the jury. The recording
appears to have been taken at dusk. Deputy Conley activated his emergency lights and
siren 33 seconds into the video, and they remained on for approximately 8 seconds.
In the recording, Mr. Erickson’s vehicle can be seen in the distance rapidly
speeding away from Deputy Conley and running a stop sign. Moreover, just before
Deputy Conley activated his lights and siren, a white truck appeared to back out of a
driveway onto Elm Street before quickly retreating into the driveway on the activation of
Deputy Conley’s lights and siren. As the white truck moves from the roadway, the
fleeing vehicle is seen rapidly passing by a vehicle headed in the opposite direction while
the deputy’s emergency equipment is activated.
6 No. 40196-1-III State v. Erickson
Deputy Conley testified the white pickup truck in the dash camera video “had
backed out of a driveway on the north side of the street and it was dead center in the
street,” and “that’s where [Mr. Erickson] passed in front of his vehicle.” RP at 139. He
stated, “as I approached with my emergency lights and sirens, that vehicle decided it
probably wasn’t a good time to be on the roadway and just pulled back into the
driveway.” RP at 139. Finally, Deputy Conley testified Mr. Erickson’s vehicle had a
“police scanner” that was “wired in” and “powered.” RP at 155. He testified the scanner
scans “police frequencies” and could allow someone to listen in on a call to dispatch. RP
at 156.
Mr. Erickson testified he was not the one driving the Chevrolet Malibu during the
incident and that he frequently let others drive the vehicle, which was registered to his
girlfriend. Though he denied being the driver, he admitted that the dash camera
recording demonstrated the vehicle was signaled to stop.
Following testimony, the court instructed the jury. The State presented argument
during summation to support the aggravating circumstance. The State argued Mr.
Erickson endangered the driver of the white pickup truck “trying to back out of their
driveway,” claiming Mr. Erickson almost hit the white pickup truck “at 100 mph.” RP at
295, 307. The State further argued:
The [aggravating circumstance] Instruction also doesn’t require that there’s pedestrians out. It can be another vehicle; another motorist, like the person backing out of their driveway. Like any of those other people—you can see the headlights coming in that the Defendant passes at 100 mph.
7 No. 40196-1-III State v. Erickson
RP at 307. Defense counsel primarily argued that Mr. Erickson was not the driver of the
vehicle.
The jury found Mr. Erickson guilty of attempting to elude a pursuing police
vehicle and made a special finding that he endangered one or more persons, other than
himself or the pursuing officer, during the commission of the crime. Mr. Erickson was
sentenced pursuant to a stipulated offender score that included two convictions from
Idaho. The stipulated “Statement of Defendant’s Criminal History” referenced RCW
9.94A.525 and stated, “[t]he parties acknowledge and agree that the above information
accurately reflects the Defendant’s comparable felony history to the best of the parties’
knowledge and belief.” CP at 32. Mr. Erickson was found to be indigent, and a $500
fine was imposed under RCW 9A.20.021.
Mr. Erickson timely appeals.
ANALYSIS
SUFFICIENCY OF EVIDENCE
Mr. Erickson argues there was insufficient evidence to convict him of attempting
to elude a pursuing police vehicle. He also contends there was insufficient evidence to
support the aggravating circumstance. We disagree.
The sufficiency of the evidence is a question of law this court reviews de novo.
State v. Rich, 184 Wn.2d 897, 903, 365 P.3d 746 (2016). In a sufficiency of the evidence
challenge, “we review the evidence in the light most favorable to the State to determine
8 No. 40196-1-III State v. Erickson
‘whether . . . any rational trier of fact could have found guilt beyond a reasonable
doubt.’” State v. Varga, 151 Wn.2d 179, 201, 86 P.3d 139 (2004) (quoting State v.
Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992)). “A claim of insufficiency admits
the truth of the State’s evidence and all inferences that can reasonably be drawn from it.”
State v. DeVries, 149 Wn.2d 842, 849, 72 P.3d 748 (2003). We can infer criminal intent
from the defendant’s conduct, and circumstantial evidence and direct evidence carry
equal weight. Varga, 151 Wn.2d at 201. However, “inferences based on circumstantial
evidence must be reasonable and cannot be based on speculation.” State v. Vasquez, 178
Wn.2d 1, 16, 309 P.3d 318 (2013).
The due process clause of the Fourteenth Amendment to the United States
Constitution requires that the State prove every element of an alleged crime beyond a
reasonable doubt. In re Winship, 397 U.S. 358, 364, 90 S. Ct. 1068, 25 L. Ed. 2d 368
(1970). If the State fails to present sufficient evidence at trial to support the elements of
the crime, double jeopardy prohibits a retrial. Burks v. United States, 437 U.S. 1, 11, 98
S. Ct. 2141, 57 L. Ed. 2d 1 (1978). The double jeopardy clause of the Fifth Amendment
does not afford the State a second opportunity to supply evidence in a second trial that it
failed to muster in the first. Id.
Mr. Erickson argues there was insufficient evidence to convict him of attempting
to elude because the short time between the activation and deactivation of Deputy
Conley’s lights and siren does not support the conclusion that Deputy Conley actually
9 No. 40196-1-III State v. Erickson
attempted to stop him. Moreover, he contends the dash camera recording does not show
him driving recklessly in a manner that endangered others, and there is therefore
insufficient evidence to support an aggravating circumstance.
Attempting to Elude
To be convicted of attempting to elude, “‘a suspect must (1) willfully fail
(2) to immediately bring his vehicle to a stop, (3) and drive in a manner indicating a
wanton and willful disregard for the lives or property of others (4) while attempting to
elude police after being signaled to stop by a uniformed officer.’” State v. Tandecki, 153
Wn.2d 842, 848, 109 P.3d 398 (2005) (emphasis omitted) (quoting State v. Sherman, 98
Wn.2d 53, 57, 653 P.2d 612 (1982)); see also RCW 46.61.024(1).
Mr. Erickson argues the brevity of time Deputy Conley had his emergency
equipment activated in attempting to stop the vehicle is insufficient to support a
conviction for attempting to elude. In particular, he contends Deputy Conley’s testimony
does not correspond to the dash camera recording and that a review of the recording
reveals that the attempt to stop Mr. Erickson lasted no longer than 10 seconds.
At trial, Deputy Conley testified about his attempt to stop Mr. Erickson. In
particular, the deputy testified that he “observed [Mr. Erickson’s] vehicle at the high rate
of speed” when he turned onto Elm Street, and that is when he “activated [his] emergency
overhead lights and audible sirens.” RP at 138. Deputy Conley also testified that, on
review of the recording, he noticed a white pickup truck “had backed out of a driveway
10 No. 40196-1-III State v. Erickson
on the north side of the street” but the truck pulled off the road as he approached with his
emergency lights and sirens activated. RP at 139. Deputy Conley testified that due to
Mr. Erickson’s high rate of speed, his failure to stop at a stop sign, and the residential
nature of the area, he deactivated his lights and siren and terminated the pursuit.
Additionally, the 1 minute and 13 second dash camera recording from the
attempted stop was played for the jury. Deputy Conley appears to activate his emergency
lights and siren 33 seconds into the video, and they remain on for approximately 8
seconds. The recording shows Mr. Erickson’s vehicle in the distance rapidly speeding
away from Deputy Conley and failing to stop at a stop sign. Moreover, a white truck
appears to be backing out of a driveway onto Elm Street just before Deputy Conley
activated his lights and siren, and it is seen quickly pulling off the road and back into the
driveway when Deputy Conley activated his emergency lights and siren.
Deputy Conley’s testimony along with the dash camera recording were sufficient
to convict Mr. Erickson of attempting to elude. First, Deputy Conley’s testimony is not
inconsistent with the dash camera recording. Second, the brevity of Deputy Conley’s
pursuit does not render the evidence insufficient to convict. Even though Deputy
Conley’s lights and siren were only activated for a short duration, it was clear in that time
frame that Mr. Erickson was not going to stop and that continued pursuit could be
dangerous given the residential nature of the area. Deputy Conley’s decision to quickly
terminate pursuit does not equate to a lack of an attempt to stop Mr. Erickson. Third,
11 No. 40196-1-III State v. Erickson
Mr. Erickson admitted at trial that the Chevrolet Malibu was signaled to stop based on the
dash camera recording.
Mr. Erickson also argues the white pickup truck’s presence between his vehicle
and the deputy’s vehicle while the lights and siren were activated “does not support
the conclusion” that Deputy Conley attempted to stop him. Br. of the Appellant at 21.
This argument is unavailing. A jury could infer that Mr. Erickson’s decision to speed
away from Deputy Conley once his lights and siren were activated was indicative of
Mr. Erickson’s awareness that the deputy was attempting to stop him. In other words,
Mr. Erickson’s behavior was inconsistent with his contention that the white truck’s
presence between the two vehicles meant he was unaware Deputy Conley was trying to
stop him.
The State presented sufficient evidence to convict Mr. Erickson of attempting to
elude.
Endangerment Enhancement
In regard to the aggravating circumstance finding, RCW 9.94A.834 states:
(1) The prosecuting attorney may file a special allegation of endangerment by eluding in every criminal case involving a charge of attempting to elude a police vehicle under RCW 46.61.024, when sufficient admissible evidence exists, to show that one or more persons other than the defendant or the pursuing law enforcement officer were threatened with physical injury or harm by the actions of the person committing the crime of attempting to elude a police vehicle.
12 No. 40196-1-III State v. Erickson
If the fact finder finds beyond a reasonable doubt the defendant “committed the crime
[of eluding] while endangering one or more persons other than the defendant or the
pursuing officer,” an increased punishment of an “additional twelve months and one
day” is required to be added to the defendant’s sentence. RCW 9.94A.834(2); RCW
9.94A.533(11).
Mr. Erickson argues the dash camera recording is insufficient to prove the
aggravating circumstance. Moreover, he argues the State based the aggravating
circumstance on his alleged endangerment of the person driving the white pickup truck,
yet the evidence does not show they were ever threatened with physical injury or harm
during the pursuit.
Here, Deputy Conley testified he observed Mr. Erickson’s vehicle driving at a
“high rate of speed” on Elm Street. RP at 138. He estimated Mr. Erickson was traveling
“at least 100 mph.” CP at 137. He noted that the white pickup truck was “safely backing
to proceed onto the roadway,” and Mr. Erickson had “passed the front of his vehicle.”
RP at 139. Moreover, he testified Elm Street is a “two-lane residential roadway” lined
mostly with “houses” and a “few commercial businesses and a church.” RP at 138.
Deputy Conley also testified Mr. Erickson “bl[ew] straight through the stop sign” at Elm
Street and 15th Street. RP at 140. Furthermore, during the 911 call, admitted at trial,
Rylan is heard telling the operator that “[Mr. Erickson is] speeding up, trying to get out.
He just took a left onto Elm.” RP at 219. Rylan testified Mr. Erickson “took off like a
13 No. 40196-1-III State v. Erickson
bat out of hell.” RP at 210. During closing, the State argued Mr. Erickson endangered
the driver of the white pickup truck as well as “any of those other people—you can see
the headlights coming in that [Mr. Erickson] passes at 100 mph.” RP at 307.
The State’s evidence was sufficient to prove Mr. Erickson endangered one or
more persons other than himself or Deputy Conley. The dash camera recording, along
with Deputy Conley’s testimony and the 911 call, demonstrated that, at minimum,
Mr. Erickson endangered the occupants of the oncoming vehicle he passed by at
approximately 100 miles per hour while the deputy’s lights and siren were activated.
The evidence was sufficient for a jury to find Mr. Erickson endangered one or
more persons other than himself or Deputy Conley while eluding.
INSTRUCTIONS TO THE JURY
Mr. Erickson contends the jury was not properly instructed because the
court’s instructions were misleading and did not inform the jury of the applicable law.
Specifically, Mr. Erickson takes issue with instructions 10 and 12. The State responds
that this issue is raised for the first time on appeal, and we should decline to address it.
Further, the State argues Mr. Erickson’s arguments fail on the merits. We decline to
address Mr. Erickson’s challenge to the jury instructions because they are raised for the
first time on appeal.
Under RAP 2.5(a), this court may “refuse to review any claim of error which was
not raised in the trial court.” However, a party may raise a manifest error affecting a
14 No. 40196-1-III State v. Erickson
constitutional right for the first time on appeal. RAP 2.5(a)(3). For us to accept review
under RAP 2.5(a)(3), Mr. Erickson must demonstrate that the error is manifest and that
the error is truly of constitutional dimension. State v. Kirkman, 159 Wn.2d 918, 926, 155
P.3d 125 (2007). For an error to be manifest, it must have resulted in actual
prejudice. State v. O’Hara, 167 Wn.2d 91, 99, 217 P.3d 756 (2009). Actual prejudice
means the error must have had practical and identifiable consequences in the trial of the
case. Id. “[T]o determine whether an error is practical and identifiable, the appellate
court must place itself in the shoes of the trial court to ascertain whether, given what the
trial court knew at that time, the court could have corrected the error.” Id. at 100. An
error is not manifest if the trial court could not have foreseen the potential error. Id.
Our Supreme Court has previously held that an error with a jury instruction may
be raised for the first time on appeal if it is a manifest error affecting a constitutional
right. State v. Salas, 127 Wn.2d 173, 182, 897 P.2d 1246 (1995). Moreover, our
Supreme Court has found that omission of an element from a to-convict instruction is of
sufficient constitutional magnitude to warrant review. State v. Mills, 154 Wn.2d 1, 6, 109
P.3d 415 (2005). This is because “[i]t cannot be said that a defendant has had a fair trial
if the jury must guess at the meaning of an essential element of a crime or if the jury
might assume that an essential element need not be proved.” State v. Smith, 131 Wn.2d
258, 263, 930 P.2d 917 (1997). Nevertheless, “[i]instructional error is not automatically
constitutional error.” State v. Guzman Nunez, 160 Wn. App. 150, 159, 248 P.3d 103
15 No. 40196-1-III State v. Erickson
(2011), aff’d in part, 174 Wn.2d 707, 285 P.3d 21 (2012). This court has previously held
a court’s failure to instruct the jury that it could acquit a defendant nonunanimously is
“not an error of constitutional dimension.” Id.
Here, Mr. Erickson did not object to the court providing instructions 10 or 12 to
the jury. Though Mr. Erickson filed a reply brief, he does not respond to the State’s
contention that his instructional challenge is unpreserved. Mr. Erickson fails to engage
with RAP 2.5 or otherwise explain why this is an error of constitutional magnitude.
Indeed, Mr. Erickson’s challenge to instruction 12 is based on the court’s failure to
instruct the jury that it could acquit him nonunanimously, which is not a manifest error
affecting a constitutional right. Similarly, Mr. Erickson does not explain how his
challenge to instruction 10 implicates a constitutional right. 2 Thus, we decline to address
Mr. Erickson’s unpreserved challenge to the jury instructions.
ADMISSION OF PREJUDICIAL EVIDENCE
Mr. Erickson argues the trial court erred when it permitted the State to introduce
evidence of his outstanding warrants. The State argues the evidence was properly
admitted. We agree with the State.
2 An instructional error that shifts the burden of proof from the State to the defendant is a manifest error affecting a constitutional right because the defendant’s due process right to a fair trial is violated. O’Hara, 167 Wn.2d at 100. Mr. Erickson argues instruction 10, coupled with the special verdict form, relieved the State of its burden but he does not engage with RAP 2.5 or argue why it is a manifest error affecting a constitutional right.
16 No. 40196-1-III State v. Erickson
Trial courts are afforded considerable discretion when it comes to considering the
relevancy of evidence and balancing “the probative value of the evidence against its
possible prejudicial impact.” State v. Rice, 48 Wn. App. 7, 11, 737 P.2d 726 (1987).
Therefore, we review a trial court’s decision on relevance and prejudicial effect for a
manifest abuse of discretion. State v. Barry, 184 Wn. App. 790, 801-02, 339 P.3d 200
(2014). A judge abuses their discretion when their decision is manifestly unreasonable,
or exercised on untenable grounds, or for untenable reasons. Id. at 802.
“Relevancy and admissibility of relevant evidence are governed by ER 401 and
ER 402.” Rice, 48 Wn. App. at 11. Relevant evidence has probative value, meaning it
has a tendency to prove or disprove a material fact. ER 401; Rice, 48 Wn. App. at 12.
Relevant evidence is generally admissible while irrelevant evidence is generally
inadmissible. ER 402. Moreover, ER 403 provides that relevant evidence can “be
excluded if its probative value is substantially outweighed by the danger of unfair
prejudice.” A danger of unfair prejudice exists “‘[w]hen evidence is likely to stimulate
an emotional response rather than a rational decision.’” State v. Beadle, 173 Wn.2d 97,
120, 265 P.3d 863 (2011) (quoting State v. Powell, 126 Wn.2d 244, 264, 893 P.2d 615
(1995)).
Further, ER 404(b) provides:
Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive,
17 No. 40196-1-III State v. Erickson
opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.
Before evidence may be admitted under ER 404(b), the trial court must: “(1) find by a
preponderance of the evidence that the misconduct [or crime] occurred, (2) identify the
purpose for which the evidence is sought to be introduced, (3) determine whether the
evidence is relevant to prove an element of the crime charged, and (4) weigh the
probative value of the evidence against [its] prejudicial effect.” State v. Thang, 145
Wn.2d 630, 642, 41 P.3d 1159 (2002).
The trial court must conduct the above analysis on the record. State v. Foxhoven,
161 Wn.2d 168, 175, 163 P.3d 786 (2007). However, if the record shows the trial court
adopted one of the parties’ express arguments as to the purpose of the evidence and that
party’s weighing of the probative and prejudicial value, then the trial court’s failure to
conduct a full analysis on the record is not reversible error. State v. Pirtle, 127 Wn.2d
628, 650-51, 904 P.2d 245 (1995).
Mr. Erickson argues testimony about his active warrants was erroneous because
the evidence was unduly prejudicial. The State responds that admission of that testimony
was proper because it was relevant to establishing Mr. Erickson’s motive for fleeing.
Prior to trial, the State filed a motion to include evidence about Mr. Erickson’s
warrant status on the day he attempted to elude law enforcement. The State argued
Mr. Erickson had two active warrants, and the “existence of these warrants provide[d Mr.
Erickson] with a motive to flee from Deputy Conley” and were “circumstantial evidence”
18 No. 40196-1-III State v. Erickson
that Mr. Erickson knew Deputy Conley intended to pull him over. CP at 6. The State
also requested a limiting instruction and stated it would instruct its witnesses “not to
discuss the nature of the underlying crimes.” CP at 7. Mr. Erickson opposed the motion.
The court granted the State’s motion and permitted it “to offer testimony or any
other form of evidence that [Mr. Erickson] had active warrants for his arrest” but ordered
the State “to refrain from offering testimony or any other form of evidence concerning
the nature of the underlying crimes.” CP at 8. At a pretrial hearing, the court reiterated
that “the officers can say that they ran the plates, his name, and knew he had a warrant,
but not what crime you had outstanding because I feel that’s overly prejudicial and I
don’t want that to happen.” RP at 19.
During opening statements, the State told the jury that Scott and Rylan informed
law enforcement that Mr. Erickson “had warrants for his arrest.” RP at 118. At trial,
Deputy Conley testified a 911 call was received about a “wanted person’s location” and
that he then “confirmed that the name that had been mentioned was actually wanted, so
I’m not just chasing or going after somebody trying to catch up to somebody for
nothing.” RP at 130, 134. Deputy Conley stated he ran “an inquiry” with Mr. Erickson’s
“name, date of birth and it showed that he was wanted.” RP at 135. Additionally, Scott
testified that he had been informed that Mr. Erickson “was in some sort of trouble” and to
call law enforcement if he saw him. RP at 178. Rylan testified similarly. During
closing, the State argued Mr. Erickson attempted to elude police because he knew “he
19 No. 40196-1-III State v. Erickson
was going to be arrested.” RP at 293. There was no testimony about the crimes
underlying the warrants.
Mr. Erickson argues the court erred in allowing these references to his outstanding
warrants. As to the first inquiry of the four-part test, he argues the court never confirmed
whether he had active warrants at the time of the incident. However, the
court only needed to find by a preponderance of the evidence that Mr. Erickson had
outstanding warrants when he attempted to elude. Here, defense counsel never quibbled
over whether Mr. Erickson had outstanding warrants. Additionally, Deputy Conley
testified he confirmed that Mr. Erickson was wanted. Based on the evidence and
arguments before it, the court could find by a preponderance of the evidence that Mr.
Erickson had warrants when he attempted to elude police.
As to the second inquiry, Mr. Erickson argues the court was required to identify
the State’s purpose for introducing evidence about the active warrants, but that “no
evidence [was] offered pre-trial or during trial to indicate that Mr. Erickson was aware of
the warrants at the time the alleged events occurred.” Br. of the Appellant at 41. Thus,
he argues the evidence could not have been relevant to establish his intent to flee if he
was not even aware of the warrants. However, as the State points out, it also introduced
evidence that Mr. Erickson had a police scanner in his vehicle that could have allowed
him to listen to the call to dispatch, in which Rylan referred to him as a “wanted
fugitive.” RP at 213. This was circumstantial evidence the jury could have used to infer
20 No. 40196-1-III State v. Erickson
that Mr. Erickson was aware of his warrant status. Thus, as the State argued, the purpose
of the evidence was to establish Mr. Erickson’s motive for fleeing.
Mr. Erickson next argues the third inquiry weighs against admission of the
evidence because whether Mr. Erickson had active warrants was not relevant to prove an
element of attempting to elude. Although we agree the existence of a warrant is not an
element of the crime, the State was still required to prove Mr. Erickson willfully failed to
bring his vehicle to a stop. RCW 46.61.024(1). The jury was instructed that a person
acts willfully when he acts knowingly. The jury was further instructed that when “acting
knowingly as to a particular fact is required to establish an element of a crime, the
element is also established if a person acts intentionally as to that fact.” CP at 22. Thus,
evidence that Mr. Erickson intended to elude the police due to his outstanding warrants
was relevant to prove he acted willfully.
As to the fourth inquiry, Mr. Erickson contends the prejudicial effect of the
evidence outweighed its probative value. The court considered the probative value of the
evidence and agreed with the State that the evidence was relevant to prove motive and
intent to flee. It also considered the potential prejudice of the evidence and therefore
prohibited testimony about the crimes underlying the warrants. The court properly
weighed the probative value against the potential prejudicial effect and found the
evidence was admissible.
21 No. 40196-1-III State v. Erickson
Finally, Mr. Erickson argues the court erred when it did not provide the jury a
limiting instruction. Though the State requested a limiting instruction, it does not appear
one was given. However, defense counsel did not object to a limiting instruction not
being given or otherwise request one. In any event, Mr. Erickson cannot demonstrate the
lack of a limiting instruction prejudiced him. Indeed, as discussed above, the evidence of
Mr. Erickson’s outstanding warrants was not unduly prejudicial.
The court did not abuse its discretion in admitting evidence of Mr. Erickson’s
outstanding warrants when he attempted to elude law enforcement. Though it is prudent
for a trial court to conduct the four-part inquiry for ER 404(b) evidence on the record,
failure to do so here does not mandate reversal. Moreover, this court may uphold the
admission of prior misconduct evidence on any proper ground. Powell, 126 Wn.2d at
259.
The court did not abuse its discretion when it admitted evidence of Mr. Erickson’s
warrant status when he attempted to elude law enforcement.
SENTENCING
Mr. Erickson argues his constitutional rights were violated at sentencing. Namely,
Mr. Erickson contends the trial court violated his constitutional rights when the court,
instead of a jury, determined prior convictions would be counted in his offender score.
He further argues the court violated the Sentencing Reform Act of 1981 (SRA), chapter
22 No. 40196-1-III State v. Erickson
9.94A RCW, when it did not determine the comparability of his out-of-state convictions
before including them in his offender score. We disagree with both arguments.
Right to a Jury Trial at Sentencing
Both the Sixth Amendment and article I, sections 21 and 22 of the Washington
Constitution guarantee a defendant the right to a jury trial. State v. McKnight, 25 Wn.
App. 2d 142, 147, 522 P.3d 1013 (2023). In Washington, a defendant’s offender
score establishes the sentencing range a court may use in determining the sentence.
RCW 9.94A.530. The sentencing court must include all current and prior convictions
when calculating the offender score. RCW 9.94A.589(1)(a).
Pursuant to United States Supreme Court precedent, “[o]ther than the fact of a
prior conviction, any fact that increases the penalty for a crime beyond the prescribed
statutory maximum must be submitted to a jury and proved beyond a reasonable doubt.”
Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000).
Later, in Blakely v. Washington, the Court clarified Apprendi and held the statutory
maximum means the maximum sentence a judge may impose “solely on the basis of the
facts reflected in the jury verdict or admitted by the defendant.” 542 U.S. 296, 303, 124
S. Ct. 2531, 159 L. Ed. 2d 403 (2004) (emphasis omitted). “In other words, in order to
impose a sentence enhancement or aggravating factor that would increase the penalty
faced by the defendant beyond the statutory maximum, any facts supporting such an
23 No. 40196-1-III State v. Erickson
increase in penalty need to be proved to a jury beyond a reasonable doubt.” State v.
Anderson, 31 Wn. App. 2d 668, 678, 552 P.3d 803 (2024).
In interpreting Apprendi and Blakely, our Supreme Court explained that the
exception to the jury requirement under Apprendi applies “only for prior convictions” and
that where an enhancement requires findings of “new factual determinations and
conclusions” beyond “‘mere criminal history,’” those findings must be made by a jury.
State v. Hughes, 154 Wn.2d 118, 141-42, 110 P.3d 192 (2005), abrogated by Washington
v. Recuenco, 548 U.S. 212, 126 S. Ct. 2546, 165 L. Ed. 2d 466 (2006) (quoting State v.
Butler, 75 Wn. App. 47, 54, 876 P.2d 481 (1994)).
The United States Supreme Court has also noted that it could not “find . . .
significant support for the proposition that the Constitution forbids a legislature
to authorize a longer sentence for recidivism.” Almendarez-Torres v. United States, 523
U.S. 224, 246, 118 S. Ct. 1219, 140 L. Ed. 2d 350 (1998). The United States Supreme
Court has since declined to overrule Almendarez-Torres. Apprendi, 530 U.S. at 489-90;
Erlinger v. United States, 602 U.S. 821, 836, 144 S. Ct. 1840, 219 L. Ed. 2d 451 (2024).
Our Supreme Court interpreted the holding in Almendarez-Torres as a narrow
“prior conviction exception” to the requirement that a jury find each element of a crime
beyond a reasonable doubt. State v. Jones, 159 Wn.2d 231, 236, 149 P.3d 636
(2006); see also State v. Brinkley, 192 Wn. App. 456, 464, 369 P.3d 157 (2016). Further,
the “prior conviction exception” includes not just the fact of the conviction itself, but also
24 No. 40196-1-III State v. Erickson
the facts “‘intimately related to the prior conviction.’” Brinkley, 192 Wn. App. at 464
(quoting Jones, 159 Wn.2d at 241).
Importantly, our Supreme Court has recognized that when a sentence is increased
by prior convictions, the fact of those prior convictions need not be found by a jury.
State v. Wheeler, 145 Wn.2d 116, 123-24, 34 P.3d 799 (2001). The court noted that
while the State is required to prove every element of an offense beyond a reasonable
doubt, “traditional factors considered by a judge in determining the appropriate sentence,
such as prior criminal history, are not elements of the crime.” Id. at 120. Instead, “[a]ll
that is required by the constitution and the statute is a sentencing hearing where the trial
judge decides by a preponderance of the evidence whether the prior convictions
exist.” Id. at 121.
Mr. Erickson primarily relies on a more recent United States Supreme Court case,
Erlinger, 602 U.S. 821. This court has twice decided that Erlinger “is limited to
resolving [the federal Armed Career Criminal Act]’s occasions inquiry and does not
overrule our state’s well-established precedent in Wheeler.” State v. Anderson, 31 Wn.
App. 2d 668, 681, 552 P.3d 803 (2024); see also State v. Frieday, 33 Wn. App. 2d 719,
744-45, 565 P.3d 139 (2025).
Thus, Almendarez-Torres, Jones, and Wheeler have not been overturned.
Consequently, Mr. Erickson’s right to a jury trial was not violated when the court used
25 No. 40196-1-III State v. Erickson
the fact of his prior convictions to sentence him at an elevated sentencing range without a
jury trial.
Out-of-State Comparability
Mr. Erickson argues the court erred when it sentenced him with an offender score
that included out-of-state convictions without requiring the State to prove the convictions
were legally or factually comparable to Washington crimes. The State responds it did not
need to prove the out-of-state convictions nor their comparability because Mr. Erickson
stipulated his out-of-state criminal history consisted of comparable offenses.
When a defendant is sentenced, the sentence may vary depending on the offender
score and the seriousness of the crime. In re Pers. Restraint of Canha, 189 Wn.2d 359,
367, 402 P.3d 266 (2017); RCW 9.94A.510. To properly calculate an offender score, the
SRA requires the sentencing court to determine a defendant’s criminal history based on
their prior convictions and level of seriousness of the current offense. State v. Wiley, 124
Wn.2d 679, 682, 880 P.2d 983 (1994). The SRA also requires that prior out-of-state
convictions be classified “according to the comparable offense definitions and sentences
provided by Washington law.” RCW 9.94A.525(3).
“To compare offenses, we use a two-part test.” Canha, 189 Wn.2d at 367. First,
the court analyzes whether the out-of-state offense is legally comparable to a Washington
offense. Id. If the crimes are legally comparable, the inquiry ends, and the defendant’s
26 No. 40196-1-III State v. Erickson
offender score includes the out-of-state offense. Id. But, if the offenses are not legally
comparable, we look to factual comparability. Id.
“Legal comparability means that the elements of a foreign conviction are
substantially similar to the elements of a Washington crime.” State v. Farnsworth, 133
Wn. App. 1, 17, 130 P.3d 389 (2006). “When the crimes’ elements are not the same, the
offenses are not legally comparable.” Canha, 189 Wn.2d at 367. When the “foreign
crime provides alternative elements, it must contain all the elements of its Washington
counterpart to be considered comparable.” Farnsworth, 133 Wn. App. at 17. But, if the
elements of “the foreign law [are] broader than Washington’s definition of a particular
crime,” the crimes are not legally comparable but may be factually comparable. Id.
On the other hand, “[f]actual comparability requires the sentencing court to
determine whether the defendant’s conduct, as evidenced by the indictment or
information, or the records of the foreign conviction, would have violated the comparable
Washington statute.” Id. at 17-18 (citations omitted). However, “the underlying facts in
the foreign record must be admitted, stipulated to, or proven beyond a reasonable
doubt.” Id.
Generally, under the SRA, the State bears the burden of proving the existence and
comparability of out-of-state convictions. State v. Ross, 152 Wn.2d 220, 230, 95 P.3d
1225 (2004). Nevertheless, a defendant’s affirmative acknowledgment that their prior
27 No. 40196-1-III State v. Erickson
out-of-state convictions are properly included in their offender score satisfies SRA
requirements and relieves the State of its burden to prove comparability. Id.
Here, the parties submitted a joint “Statement of Defendant’s Criminal History.”
CP at 32. The statement included two Idaho convictions: reckless driving and forgery.
The statement reads, “[t]he parties acknowledge and agree that the above information
accurately reflects the Defendant’s comparable felony history to the best of the parties’
knowledge and belief” and specifically references RCW 9.94A.525. CP at 32 (emphasis
added). Mr. Erickson signed the statement, and both parties agreed to the standard range
at sentencing. Both convictions were ultimately included in his offender score.
Because Mr. Erickson stipulated to the statement of his criminal history, in which
he explicitly agreed to the comparability of the offenses, the State did not need to prove
the offenses were comparable to Washington crimes. Mr. Erickson’s constitutional rights
were not violated at sentencing.
$500 FINE
Mr. Erickson argues we should remand for the trial court to strike the $500 fine
imposed under RCW 9A.20.021. The State responds that the issue is unpreserved but, if
we review the issue, we should reject Mr. Erickson’s argument. Although the error is
unpreserved, we exercise our discretion and address the claimed error.
In State v. Blazina, our Supreme Court noted that an appellate court need not reach
unpreserved claims of error related to legal financial obligations (LFO). 182 Wn.2d 827,
28 No. 40196-1-III State v. Erickson
830, 344 P.3d 680 (2015). However, the court explained that “an appellate court may use
its discretion to reach unpreserved claims of error consistent with RAP 2.5.” Id. We
exercise our discretion and address the issue.
Turning to the merits, Mr. Erickson contends the court improperly imposed the
$500 fine because he was found indigent. Here, the court imposed a $500 fine pursuant
to RCW 9A.20.021. RCW 9A.20.021 reads, in relevant part:
(1) Felony. Unless a different maximum sentence for a classified felony is specifically established by a statute of this state, no person convicted of a classified felony shall be punished by confinement or fine exceeding the following:
....
(c) For a class C felony, by confinement in a state correctional institution for five years, or by a fine in an amount fixed by the court of ten thousand dollars, or by both such confinement and fine.
When a person is convicted, the trial court may order the defendant to pay costs,
often referred to as LFOs, as part of their sentence. RCW 10.01.160(1). However, by
statute, the court is not authorized to order a defendant to pay LFOs if they are indigent.
RCW 10.01.160(3). Thus, the sentencing court “has a statutory obligation to make an
individualized inquiry into a defendant’s current and future ability to pay before [it]
imposes LFOs” under RCW 10.01.160(3). Blazina, 182 Wn.2d at 830.
However, in State v. Clark, this court held the fine imposed pursuant to RCW
9A.20.021 is not a “cost” within the meaning of RCW 10.01.160(3). 191 Wn. App. 369,
376, 362 P.3d 309 (2015). The court in Clark distinguished between the definitions of
29 No. 40196-1-III State v. Erickson
costs and fines when reaching its holding that a sentencing court need not inquire about a
defendant’s ability to pay a fine. Id. at 375-76. Thus, the trial court is not required to
consider a defendant’s ability to pay when imposing a fine pursuant to RCW 9A.20.021
because it is not a cost under RCW 10.01.160(3). Id. The court did not err when it
imposed the $500 fine.
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.
Cooney, J.
WE CONCUR:
Staab, A.C.J.
Fearing, J.