State Of Washington v. Azeb Abay

• Court: Court of Appeals of Washington
• Decided: July 25, 2016
• Docket: 73045-2
• Status: Unpublished

Opinion

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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION ONE

STATE OF WASHINGTON, No. 73045-2-1

Respondent,

v.

AZEB WELDETENSAY ABAY, UNPUBLISHED OPINION

Appellant. FILED: July 25, 2016

Verellen, C.J. — Azeb Abay appeals her felony hit and run conviction. She

claims insufficient evidence supports her conviction. When viewed in a light most

favorable to the State, there is ample evidence Abay failed to stop and return to the

scene. Abay also argues the statutory provision to stop "as close thereto as

possible" is unconstitutionally vague. But as applied to these facts, the statute

provides an adequate standard to protect against arbitrary enforcement.

Therefore, we affirm.

FACTS

On a sunny afternoon in March 2014, Azeb Abay drove her sports utility

vehicle into a pedestrian walking in a crosswalk as Abay turned right onto Bothell

Way. The pedestrian had an orange safety vest on and was carrying a video camera

to record traffic for a traffic congestion study. Abay paused for a moment as

witnesses yelled at her to stop, but then slowly drove towards the next intersection. No. 73045-2-1/2

A King County Sheriff's Office deputy happened upon the scene almost

immediately and found the pedestrian lying unconscious on the payment. The

pedestrian appeared to be convulsing. Witnesses pointed out Abay's vehicle, which

was already a block away, headed west on Bothell Way. The deputy told the

witnesses to wait for aid as he pursued Abay with his patrol car's lights and siren

activated.

The deputy caught up to Abay about three blocks away from the accident, but

Abay did not pull over, bypassing two driveways. Both were driving slowly due to

heavy traffic. The deputy then drove next to Abay and gestured to her to pull over.

Abay gestured back as though she was pulling over, but continued driving. She

appeared to be using her cell phone. Abay bypassed the entrance to a strip mall,

turned right at the next intersection—the equivalent of five blocks from the accident—

and finally stopped in a drugstore driveway.

The deputy identified 11 driveways Abay could have turned into between

where the accident occurred and where she ultimately stopped, including an auto

parts store, bank, gas station, two restaurants, and a supermarket parking lot. The

lane between Abay's driving lane and the driveways was a bus lane that also

operated as a right turn lane. Although traffic was heavy, this lane remained empty

during the deputy's pursuit.

The State charged Abay with felony hit and run. At trial, Abay testified that

she knew she hit the pedestrian but "was shocked."1 She had been licensed to drive

for five months and said she was "not in a good condition and I just wanted to calm

Report of Proceedings (Dec. 2, 2014) at 148. No. 73045-2-1/3

myself."2 She left the scene because she saw the police had arrived and knew the

pedestrian would be cared for and "was looking for a safe place to pull over."3

Although she commuted that route daily, Abay stated she was unaware of the

driveways she passed.

A jury convicted Abay as charged. The trial court imposed a first time offender

waiver with credit for three days in custody and an additional 80 hours of community

service.

Abay appeals.

ANALYSIS

Abay challenges the sufficiency of the evidence supporting her felony hit and

run conviction. A challenge to the sufficiency of the evidence admits the truth of the

State's evidence.4 All reasonable inferences from the evidence are viewed in favor of

the State and interpreted most strongly against the defendant.5 We must determine

whether any rational trier of fact could have found the elements of the offense

beyond a reasonable doubt.6

The elements of felony hit and run require proof that (1) the defendant drove

the vehicle; (2) the defendant's vehicle was involved in an accident that resulted in

death or injury to a person or damage to an unattended vehicle; (3) the defendant

knew she had been in an accident; and (4) the defendant failed to stop and return to

2Jkiat150. 3 Id, at 162. 4 State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992). 5id, 6 State v. Ware, 111 Wn. App. 738, 741, 46 P.3d 280 (2002). No. 73045-2-1/4

the scene in order to provide her name, address, insurance policy, vehicle license,

and driver's license and render reasonable assistance to any person injured in the

accident.7

Here, sufficient evidence supported all the elements of felony hit and run. It

was undisputed that Abay hit the pedestrian in the marked crosswalk. She admitted

to the jury she knew immediately that she had hit him. It was also undisputed that

the pedestrian was injured. Abay paused for a moment and then drove off. She

admitted she did not call 911. Abay made no efforts to impart her identity or driving

information to anyone. She passed 11 accessible driveways before finally stopping

for the deputy pursuing her with his lights and siren activated and gesturing to her to

pull over.

Nonetheless, Abay contends her conviction must be reversed because her

arrest "made it impossible" for her to voluntarily return to the scene to provide her

information and render any aid.8

Abay primarily relies on State v. Eaton.9 Police arrested Eaton for driving

under the influence of alcohol and escorted him to jail.10 Jail staff searched Eaton

and discovered methamphetamine hidden in his sock.11 The State charged Eaton

with possession of a controlled substance and sought a sentence enhancement for

7 RCW 46.52.020(1), (3): State v. Sutherland, 104 Wn. App. 122, 130, 15P.3d 1051 (2001). 8 Appellant's Br. at 10. 9 168 Wn.2d 476, 229 P.3d 704 (2010). 10 id, at 479-80. 11 Id. at 479. No. 73045-2-1/5

possessing the substance in jail.12 Our Supreme Court held that the sentencing

enhancement "requires that a defendant took some voluntary act to be placed within

the enhanced zone in order to subject the defendant to an enhanced sentence."13

"The act may be as simple as choosing to put one foot in front of the other to enter

the zone, but it must be a choice freely made."14 Because Eaton was "forcibly

transported by police to the area giving rise to additional punishment, he did not have

the requisite ability to choose."15

Eaton does not help Abay because the criminal conduct here was not caused

by an outside force. Abay's choice to pause after the accident and then drive the

equivalent of 5 blocks and past 11 accessible driveways was "a choice freely

made."16

Viewed in a light most favorable to the State, sufficient evidence supports

Abay's conviction.

Abay also argues that the trial court instructed the jury on alternative means of

committing hit and run without including a unanimity instruction and that because the

State presented insufficient evidence to prove three of the four alleged alternative

means, her constitutional right to a unanimous verdict was violated. But hit and run is

12 id, at 479-80. 13 id, at 487. 14 id, at 488. 15 id, at 486. 16 Abay cites State v. W.R.. Jr. for the proposition that "when a defense necessarily negates an element of the crime, it violates due process to place the burden of proof on the defendant." 181 Wn.2d 757, 765, 336 P.3d 1134 (2014). But lack of volition does not negate any element of hit and run here. No. 73045-2-1/6

a single means crime and therefore, no unanimity instruction was necessary.

An "alternative means" crime "is one where the criminal conduct can be

proved in multiple ways."17 "Such crimes generally are identified by stating a single

crime, followed by a statement of more than one means by which the crime can be

committed."18

Whether a statute provides an alternative means for committing a particular

crime is left to judicial determination.19 "[T]he statutory analysis focuses on whether

each alleged alternative describes 'distinct acts that amount to the same crime.'"20

"The more varied the criminal conduct, the more likely the statute describes

alternative means. But when the statute describes minor nuances inhering in the

same act, the more likely the various 'alternatives' are merely facets of the same

criminal conduct."21

For example, in State v. Peterson, our Supreme Court applied this analysis to

the failure to register as a sex offender statute, former RCW 9A.44.130 (2003).22

Peterson argued the failure to register statute was an alternative means crime

17 State v. Makekau. 2016 WL 3188944, at *2 (Wash. Ct. App. June 7, 2016). 18jd, 19 State v. Peterson, 168 Wn.2d 763, 769, 230 P.3d 588 (2010). 20 State v. Sandholm, 184 Wn.2d 726, 734, 364 P.3d 87 (2015) (quoting id, at 770). 21 Id.; see State v. Butler, 2016 WL 3264406, at *2 (Wash. Ct. App. June 14, 2016) (holding the four verbs describing identity theft in the statute "are not distinct means by which to commit identify theft, but rather are multiple facets of a single means"); see also Makekau, 2016 WL 3188944, at *1 (Wash. Ct. App. June 7, 2016) (holding "the terms 'receive, retain, possess, conceal, or dispose of are definitional and do not create alternative means of the crime of possession of a stolen vehicle, which involves a single means—possessing a stolen vehicle."). 22 168 Wn.2d 763, 230 P.3d 588 (2010). No. 73045-2-1/7

because the crime could be committed by failing to register as a sex offender after

(1) becoming homeless, (2) moving between residences in one county, or (3) moving

between counties.23 Our Supreme Court concluded the statute did not create an

alternative means crime because an individual's conduct in each of the three

scenarios does not vary significantly.24 The statute prohibited the single act of

moving without providing the proper notice.25

The purpose of Washington's hit and run statute is to promote immediate

assistance to injured persons and to facilitate accident investigations, including

preventing drivers from avoiding liability for their acts by leaving the scene without

providing the required information.26 As in Peterson, the relevant portion of the hit

and run statute contemplates a single act—the failure to fulfill a driver's statutory

obligation to remain, help, and cooperate when involved in an accident. Abay

attempts to argue that failing to stop and failing to return and remain at the scene are

distinct alternative means of committing hit and run, but they are both facets of the

single obligation under the statute. And the responsibilities of providing identity and

insurance information and giving aid, while somewhat different, are both part of

providing assistance and facilitating accident investigations. They are not so distinct

as to rise to an alternative means requiring jury unanimity.

23 id, at 769-70. 24 id, at 770. 25 id, 26 State v. Vela, 100 Wn.2d 636, 640, 673 P.2d 185 (1983); State v. Silva, 106 Wn. App. 586, 593, 24 P.3d 477 (2001). No. 73045-2-1/8

Even if we were convinced that the statute establishes distinct alternative

means, there is ample evidence Abay failed to meet each "alternative means"

because Abay drove away from every one of her responsibilities under the statute.

Abay also argues the phrase "as close thereto as possible" found in

RCW 46.52.020 is unconstitutionally vague because it fails to provide ascertainable

standards to protect against arbitrary enforcement.27 The relevant provision of the

statute provides that the driver of a vehicle involved in an accident resulting in the

injury to or death of any person must "immediately stop such vehicle at the scene of

such accident or as close thereto as possible but shall then forthwith return to, and in

every event remain at, the scene of such accident."28

We review the constitutionality of a statute de novo.29 The statute is

presumed constitutional, and the party challenging it bears the heavy burden of

proving its unconstitutionality beyond a reasonable doubt.30 "When considering a

vagueness challenge, we do not consider the statutory provision in isolation; rather,

we must evaluate the provision in its broader statutory context."31 "The vagueness

doctrine protects procedural due process by ensuring laws provide notice and clear

standards to prevent arbitrary enforcement. The purpose of this doctrine is to

'provide fair notice to citizens as to what conduct is proscribed and to protect against

27 Appellant's Br. at 16. 28 RCW 46.52.020(1) (emphasis added). 29 State v. Watson, 160 Wn.2d 1, 5, 154 P.3d 909 (2007). 30 In the Matter of the Pet, of M.W. & W.D.. 2016 WL 3249495, at *11 (Wash. June 9, 2016); State v. Coria, 120Wn.2d 156, 163, 839 P.2d 890 (1992). 31 Pet, of M.W. & W.D., 2016 WL 3249495, at*11; City of Seattle v. Huff, 111 Wn.2d 923, 929, 767 P.2d 572 (1989).

8 No. 73045-2-1/9

arbitrary enforcement of the laws.'"32 Because Abay does not claim that the hit and

run statute violates her First Amendment rights, her vagueness challenge will be

evaluated only as applied to her case.33

Abay fails to satisfy her burden of proving that the statute is unconstitutional.

First, City of Spokane v. Carlson already rejected a vagueness challenge to the

specific phrase "as close thereto as possible" in Spokane's hit and run ordinance,

which mirrored the State statute.34 There, the driver was involved in an accident but

did not stop for several blocks out of fear he would block traffic.35 The court reviewed

the entire ordinance and found "[e]ven a cursory review of [the ordinance] shows a

clear road map for its violation."36 The court concluded the "ordinance defines the

criminal offense with sufficient certainty to avoid arbitrary enforcement."37

Second, Abay's challenge focuses on a series of "what-ifs"—"What if Ms. Abay

had calmed down sooner and pulled over into an earlier driveway?" What if she had

pulled over just as she did, but then started to walk back quickly to the scene?"38 But

the statute is tested for unconstitutional vagueness by inspecting the actual conduct

32 Det.ofM.W.&W.D.. 2016 WL 3249495, at*11 (internal citation omitted) (quoting City of Seattle v. Eze, 111 Wn.2d 22, 26, 759 P.2d 366 (1988)). 33 City of Spokane v. Douglass, 115Wn.2d 171, 181-82, 795 P.2d 693 (1990). 34 96 Wn. App. 279, 283-84, 979 P.2d 880 (1999). 35 id, at 282. 36 id, at 284 (footnote omitted). 37 id, 38 Appellant's Br. at 18. No. 73045-2-1/10

of the party who challenges it, not by examining hypothetical situations at the

periphery of the statute's scope.39

As in Carlson, the statute here provides an adequate standard to govern its

enforcement. Therefore, we affirm.

WE CONCUR:

d**L*M,} y.

39 Douglass, 115 Wn.2d at 182-83.