FILED
FEBRUARY 26, 2015
In the Office of the Clerk of Court
W A State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
STATE OF WASHINGTON, ) No. 31890-7-111 ) Respondent, ) ) v. ) UNPUBLISHED OPINION ) JAMES DOUGLAS COURTER )
)
Appellant. )
LAWRENCE-BERREY, J. - A jury returned verdicts finding James Douglas Courter
guilty of felony hit and run and driving under the influence (DUI) with a special finding
that he refused to take a blood alcohol concentration test (BAC). Mr. Courter appeals,
asserting (1) the trial court abused its discretion under ER 403 by admitting duplicative
and prejudicial photographs of the accident scene, (2) the State failed to present sufficient
evidence to support the DUI and hit and run convictions, (3) the trial court erred in failing
to give a limiting instruction on the use ofBAC refusal evidence, (4) his trial counsel was
ineffective for failing to request a limiting instruction, and (5) the prosecutor committed
misconduct by arguing that Mr. Courter's refusal to submit to a BAC test was evidence
that he was guilty ofDUI. We disagree with his contentions and affirm in all respects. No. 31890-7-II1 State v. Courter
FACTS
During the early evening of December 13,2012, James Courter was driving his
Jeep Grand Cherokee south on Hansen Road in Moses Lake, Washington, toward the
intersection of North Frontage and Hansen Roads. As he pulled into the intersection, the
front end of his jeep collided with the passenger side of a Toyota Corolla driven by Ellen
Russell. Mr. Courter drove his jeep about 150 feet or more from the point of the
collision. The collision caused extensive damage to both vehicles. Ms. Russell and her
passenger, Elsa Jensen, were injured in the collision. It is undisputed that Mr. Courter did
not stop to provide aid to them.
Trooper Phil Jesse responded to the scene ofthe accident. Upon arrival, he asked
Mr. Courter to provide his license and proof of insurance and registration. Trooper Jesse
noticed that Mr. Courter passed over his registration at least two times and that Mr.
Courter had a strong odor of intoxicants on his breath. Trooper Jesse eventually had to
point out the needed document. At that time, Mr. Courter denied consuming any alcohol.
Trooper Jesse then attempted to conduct field sobriety tests. Mr. Courter was
unable to perform the horizontal gaze nystagmus test without moving his head. The
trooper was not able to conduct the other tests because Mr. Courter continuously put his
hands in his pockets, causing officer safety concerns. Trooper Jesse arrested Mr. Courter
No. 31890-7-111 State v. Courter
for DUI and handcuffed him with the assistance of another officer. During the encounter
with police, Mr. Courter's speech was slurred.
Trooper Jesse took Mr. Courter to a local hospital because Mr. Courter was
complaining of neck pain. At the hospital, after being given his informed consent
warnings, Mr. Courter refused to submit to a BAC test. In a later DUI interview, Mr.
Courter admitted to drinking '" a couple of beers.'" Report of Proceedings (RP) (Aug. 8,
2013) at 159. The State charged Mr. Courter by amended information with felony hit and
run (injury) and DUI with a special allegation that he refused a BAC test.
Before trial, defense counsel moved to exclude any reference to Mr. Courter's
refusal to consent to the blood draw as evidence of criminal wrongdoing. The court
denied the motion, concluding that the refusal evidence could be used to prove the special
allegation, but reserved as to whether it could be used as evidence of guilt on the DUI
charge. After additional research, the court later ruled that the evidence could be used as
evidence of guilt of the DUI.
Over defense counsel's objection, the State sought to admit 12 photographs related
to the collision. Exhibit 3 was a photograph of the Toyota after the collision. Exhibit 4
showed the Toyota from another angle with medics attending to the occupants. Exhibit 5
showed the damage to the passenger side of the Toyota and a deployed air bag. Exhibit 6
No. 31890-7-III State v. Courter
was a close up of Exhibit 5. Exhibit 7 showed the Toyota after the passenger door had
been removed. Exhibit 8 showed the interior of the Toyota and the damage to the
dashboard and interior of the vehicle. Exhibit 9 showed the damage to Mr. Courter's Jeep
Cherokee and its position relative to the stop sign. Exhibit 10 showed the damage to Mr.
Courter's jeep from another angle and its location relative to the fog line. Exhibits 11, 12,
and 13 were photographs of a box of beer from different angles.
Mr. Courter argued that all of the photographs should have been excluded as
cumulative and prejudicial, except for one or two photographs of the Toyota, one of the
Jeep, one of the box of beer, and one of the beer cans. The court admitted all of the
photographs, finding the prosecutor had articulated reasons for each photograph and that
each photograph showed "different viewpoints and perspectives." RP (Aug. 8,2013) at
20. The court also found that each photograph had the "distinct and strong possibility of
being helpful to the jury." RP (Aug. 8, 2013) at 20.
Robert Richardson witnessed the collision. He testified that he saw a speeding
Jeep Cherokee round a bend just north of Hansen Road and collide with a white Toyota in
the middle of the intersection of North Frontage and Hansen Roads. Mr. Richardson
estimated the jeep was traveling at least 45 miles per hour in a 35 mile per hour zone.
After briefly checking on the status of the occupants of the Toyota, he went to check on
the driver of the jeep. As he approached the passenger side of the jeep, he noticed Mr.
Courter was trying to start the vehicle. Mr. Richardson opened the passenger door and
told Mr. Courter to wait for a paramedic, but Mr. Richardson stated he needed to leave to
pick up his child. Mr. Courter then exited his car and started to walk west on Frontage
Road away from the collision. Mr. Richardson could smell alcohol on Mr. Courter's
breath. As Mr. Richardson walked toward police officers who had arrived at the scene,
he saw Mr. Courter throwing something over a berm toward Interstate 90. Mr.
Richardson stayed at the scene the entire time. He did not see Mr. Courter return to the
crash scene, attempt to contact Ms. Russell or Ms. Jensen, or provide information or
assistance to them.
Benjamin Sachs and his wife, Mariah Sachs, testified at trial. Mr. Sachs testified
that they were on the Mae Valley exit from Interstate 90 at 6:00 p.m. on December 13,
2012, when they noticed the accident on the side of the road. Mr. Sachs called 911 and
Ms. Sachs checked on the occupants of the white car. Ms. Sachs testified that she saw
Mr. Courter "[w]alking westward down Frontage Road away from the accident."
RP (Aug. 9,2013) at 131. She then saw him return to his car, grab something rectangular
with handles, and then head west again. According to Ms. Sachs, it took police officers
about 10 minutes to arrive at the scene of the accident. She testified that during this time,
No. 3 I 890-7-II1 State v. Courter
Mr. Courter did not approach the occupants of the Toyota. She also observed that Mr.
Courter was argumentative with police officers and that his speech was slow and slurred.
Sergeant Brian Jones of the Moses Lake Police Department testified that upon
arrival at the scene, he saw the Toyota in a ditch and the jeep about 100 feet from the
intersection. Sergeant Jones took photographs of the cars and a box of beer he found on
the side of the road behind a bush near Mr. Courter's jeep. Sergeant Jones observed that
Mr. Courter would not comply with Trooper Jesse's attempt to conduct field sobriety tests
and, subsequently, helped the officer handcuff Mr. Courter.
Ellen Russell testitied that on the evening in question, she was driving to a
Christmas dinner with her friend, Ms. Jensen. Ms. Russell stated that she stopped at the
intersection of North Frontage Road and Hansen Road and did not see any vehicle
approaching from the right. Ms. Russell testified that her car was hit as soon as she
entered the intersection. After the collision, Ms. Russell noticed that the passenger side
air bag had deployed and that emergency personnel had to cut off the passenger side door
to extricate Ms. Jensen. Ms. Russell testified that as a result of the collision, her
collarbone was injured and she had a cut on her right hand that required stitches. She also
stated that she never saw the driver of the jeep.
Ms. Jensen testified that the impact of the collision shattered the windshield,
deployed the passenger side airbag, and pinned her in her seat. She testified that
emergency personnel had to extract her from the car with the "Jaws of Life." RP (Aug. 8,
2013) at 88. The collision caused injuries to her rotator cuff, extensive bruising along her
chest and right thigh, and an aggravation of a recent knee surgery.
Trooper Jesse testified that when he arrived at the scene, Mr. Courter's speech was
slurred, he was uncooperative with field sobriety testing, and his breath smelled of
alcohol. Based on his observations of Mr. Courter's demeanor, the collision, and the odor
of intoxicants, Trooper Jesse concluded that Mr. Courter was intoxicated and "should not
have been driving." RP (Aug. 8,2013) at 161. He also opined that despite Mr. Courter's
intoxication and the collision, Mr. Courter was capable of understanding the events and
was not in shock.
Mr. Courter testified that on the night in question he was heading to a local high
school to pick up his fiancee's son from basketball practice. He said it was dark and his
headlights were on. He denied speeding and explained that he did not hit his brakes
because he did not see the Toyota in the intersection until impact. After the collision, he
got out of his car to assess the damage. He claimed that he never intended to leave the
scene or run away, explaining that he believed that Mr. Richardson was the occupant of
the other car and unharmed. Mr. Courter admitted to drinking part of a bottle of beer
before the accident. During cross-examination, Mr. Courter admitted that he attempted to
leave the scene of the accident to pick up his son and that he attempted to hide the box of
beer. He also admitted that he did not check on the occupants of the other vehicle.
The jury found Mr. Courter guilty as charged.
ANALYSIS
A. Whether the trial court erred in admitting duplicative photographs
Mr. Courter argues the trial court abused its discretion under ER 403 by admitting
exhibits 3 and 5 through 10. He contends the photographs of the Toyota and jeep were
duplicative and unnecessary to prove that Mr. Courter was involved in an accident. He
maintains that the State's primary purpose for submitting the photographs of the Toyota
was to "inflame the jury's passions by showing photographs of the other driver's vehicle,
which had been tom apart by the Jaws of Life, and medics attending to occupants of the
other vehicle." Br. of Appellant at 10. The State responds that the photographs were
relevant to the charges and issues at trial.
Under ER 403, otherwise relevant evidence may be excluded if "its probative
value is substantially outweighed by the danger of unfair prejudice, confusion of the
issues, or misleading the jury, or by considerations of undue delay, waste of time, or
No. 31890· 7·III State v. Courter
needless presentation of cumulative evidence." The admissibility of photographs is
generally within the sound discretion of the trial court. And the trial court's ruling will
not be disturbed on appeal absent a showing of an abuse of discretion. State v. Crenshaw,
98 Wn.2d 789, 806,659 P.2d 488 (1983). Accurate photographic representations are
admissible if their probative value outweighs their prejudicial effect. Id.
Evidence causes unfair prejudice when it is more likely to arouse an emotional
response than a rational decision by the jury. State v. Cronin, 142 Wn.2d 568, 584, 14
PJd 752 (2000) (quoting State v. Gould, 58 Wn. App. 175, 183,791 P.2d 569 (1990».
Our Supreme Court has suggested that unfair prejudice should be evaluated in terms of
erroneous inferences that undermine accurate fact finding and fairness. City ofAuburn v.
Hedlund, 165 Wn.2d 645,655,201 P.3d 315 (2009). Photographs showing different
angles and distances may not be cumulative. State v. Pirtle, 127 Wn.2d 628, 654-55, 904
P.2d 245 (1995).
Mr. Courter objects to five of six photographs of the Toyota and the two
photographs of his jeep. I While the photographs of the Toyota demonstrate some
common features, they each show different angles and perspectives, including three
I Mr. Courter did not designate the exhibits he challenges on appeal. However, the parties do not dispute the contents of the photographs and the record adequately describes their depictions.
photographs of the interior, the position of the Toyota at the scene of the accident, and a
photo of the exterior damage. The two photos of Mr. Courter's jeep show damage to the
jeep from two different angles. The State may introduce photographs to prove every
element of the crime. State v. Gentry, 125 Wn.2d 570, 609, 888 P.2d 1105 (1995). Here,
the State had the burden of proving there was an accident that resulted in an injury. Thus,
the State was entitled to show evidence that made the existence of an injury more likely.
Because injury is an essential element of felony hit and run, the photos of the damage to
the Toyota, including the removal of a side door and a medic extracting Ms. Jensen from
the car were relevant to show the severity of the accident. It is apparent from the record
that the court had these considerations in mind as it reviewed each photograph on the
record and admitted them.
Ultimately, Mr. Courter objected to the admission of 8 of 12 photographs. We are
not persuaded that the admission of these 8 photographs, which were not gruesome, over
the course of a three-day trial, were so cumulative or prejudicial that reversal is
warranted. The court acted within its discretion in admitting the challenged photographs.
B. Whether the evidence was sufficient to convict
1. Driving Under the Influence. Mr. Courter contends the evidence does not
support his convictions for DUI and hit and run. As to the DUI conviction, he contends
the evidence is insufficient to establish that he was affected by intoxicating liquor at the
time of the collision. He contends that, at most, the evidence shows that he consumed
two beers over a period of four hours and, therefore, he could not have been affected by
the alcohol. He also contends his attempt to hide the box of beer, the odor of intoxicants
on his breath, and his impaired speech and inability to follow directions do not rise to the
level of substantial evidence of DUt Mr. Courter points to an alleged head injury as the
more reasonable explanation for his speech impairment and inability to follow directions.
A challenge to the sufficiency of the evidence admits the truth of the State's
evidence and any reasonable inferences drawn from it. State v. Salinas, 119 Wn.2d 192,
201,829 P.2d 1068 (1992). We review the evidence in the light most favorable to the
State to determine whether any rational trier of fact could have found the defendant guilty
beyond a reasonable doubt. [d. We do not reweigh the evidence. State v. Green, 94
Wn.2d 216,221,616 P.2d 628 (1980). Instead, we defer to the jury's resolution of
conflicting testimony, evaluation of witness credibility, and the weight to be given the
evidence. State v. Walton, 64 Wn. App. 410, 415-16, 824 P.2d 533 (1992).
To convict Mr. Courter ofDUI, the State had to prove that he drove a vehicle
while under the influence of or affected by intoxicating liquor. RCW 46.61.502(1)(c);
State v. Shabel, 95 Wn. App. 469,474,976 P.2d 153 (1999). A person is under the
influence of intoxicating liquor if "the ability to handle an automobile was lessened in an
appreciable degree by the consumption of intoxicants or drugs." State v. Wilhelm, 78 Wn.
App. 188, 193,896 P.2d 105 (1995). Such evidence may be circumstantial. Id. at 192
93.
Here, Mr. Richardson testified that Mr. Courter was traveling at least 10 miles
above the speed limit, crashed into another vehicle, and smelled of alcohol. Other
witnesses' descriptions of Mr. Courter were consistent with the effects of alcohol. Ms.
Sachs testified that Mr. Courter's speech was slow and slurred. Trooper Jesse testified
that Mr. Courter smelled of alcohol, that his speech was slurred, and that he was not able
to follow instructions for a field sobriety test. Based on these observations, Trooper Jesse
concluded that Mr. Courter was not safe to drive. Mr. Courter admitted that he failed to
brake and that he collided with another car in the intersection.
Furthermore, Mr. Courter displa.yed consciousness of guilt. He attempted to hide a
box of beer and refused to take a BAC test. The most reasonable inference, favorable to
the State, from this refusal is that he refused the test because he was intoxicated. See City
o/Seattle v. Stalsbroten, 138 Wn.2d 227,234,978 P.2d 1059 (1999) (refusal to submit to
a field sobriety test'" is best described as conduct indicating a consciousness of guilt''')
(quoting Newhouse v. Misterly, 415 F.2d 514,518 (9th Cir. 1969».
12 No. 3 I 890-7-III State v. Courter
Mr. Courter asks this court to accept his testimony that he consumed at most two
beers over a four-hour period. However, the jury had ample reason to question Mr.
Courter's credibility. Mr. Courter initially denied drinking at all. Later, on the way to the
hospital, he told Trooper Jesse that he had consumed two beers. At trial, he testified that
he opened a beer, but did not have a chance to finish it. These inconsistent positions
likely undermined his credibility in the eyes of the jury.
In the end, Mr. Courter attempts to isolate all of the evidence against him, arguing
that each piece alone is insufficient for a finding of guilt. However, viewing the evidence
together in a light most favorable to the State, it is sufficient to support the jury's finding
that Mr. Courter was under the influence of alcohol while driving a vehicle.
2. Hit and Run. Mr. Courter also contends that the evidence was insufficient to
prove felony hit and run. Specifically, he contends that his walk to hide the box of beer
did not constitute fleeing the scene of an accident. He points out that he returned to his
car and gave the statutorily required information to a police officer. He also argues that
he was not derelict in his duty to render reasonable assistance to Ms. Russell and Ms.
Jensen because they were treated at the scene by a nurse and paramedics.
To convict a defendant of felony hit and run, the State must prove (1) there was an
accident resulting in death or injury, (2) the driver failed to immediately stop and return to
No. 31890-7-II1 State v. Courter
the scene to provide the required information and assistance, and (3) the driver had
knowledge of the accident. RCW 46.52.020(1); State v. Bourne, 90 Wn. App. 963, 969,
954 P.2d 366 (1998). The purpose ofRCW 46.52.020 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. State v. Vela, 100 Wn.2d 636,641,673 P.2d 185 (1983); State v. Silva, 106
Wn. App. 586, 593, 24 P.3d 477 (2001).
Here, there was sufficient evidence to support the jury's finding that Mr. Courter
was guilty of felony hit and run. It was undisputed that he was driving the car that
collided with Ms. Russell's car. Both Ms. Russell and Ms. Jensen testified to the injuries
they sustained from the accident. Mr. Courter admitted that he tried to restart his car so
that he could leave the scene to pick up his son from school. After he was unable to
restart his car, he walked away from the accident to hide a box of beer without attending
to the victims of the crash or providing them with the requisite information. He claims
that his return to his car establishes that he was not fleeing for purposes of the hit and run
statute. But in the absence of evidence that he immediately assisted Ms. Russell and Ms.
Jensen, the evidence was sufficient to convince a jury that Mr. Courter committed felony
hit and run.
14 No. 31890-7-III State v. Courter
Contrary to Mr. Courter's argument, it was not sufficient to provide the arresting
police officer with some of the statutorily required information. The statute
unambiguously requires a driver involved in an automobile accident to provide the
information to "any person struck or injured or the driver or any occupant of, or any
person attending, any such vehicle collided with." RCW 46.52.020(3).
C. Whether the trial court erred in giving an instruction inferring guilt
Mr. Courter contends the trial court erred in failing to instruct the jury that the
BAC refusal evidence was admissible for the sole purpose of proving the special refusal
allegation. Mr. Courter concedes that under State v. Long, 113 Wn.2d 266, 778 P.2d
1027 (1989), evidence that a person refused a BAC test is admissible to infer guilt of
DUI. However, he contends that because the trial court admitted the evidence for the
limited purpose of proving the special allegation, the law of the case doctrine mandates
that it must instruct the jury according to its evidentiary ruling.
Mr. Courter's argument overlooks the court's final ruling on the issue. Initially,
the court ruled that the refusal evidence could be used to prove the special allegation, but
reserved as to whether it could be used as evidence of guilt on the DUI. However, it later
ruled that the refusal evidence could be used as evidence of guilt on the DUI. Mr.
Courter does not dispute that this is a correct statement of the law. Under these facts, no
limiting instruction was necessary.
D. Whether defense counsel was ineffective
In an argument related to the instruction issue, Mr. Courter contends his trial
counsel was ineffective for failing to request an instruction limiting the purpose of the
BAC refusal evidence to proof of the special allegation. To prevail on an ineffective
assistance of counsel claim, Mr. Courter must show both deficient performance and
resulting prejudice. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L.
Ed. 2d 674 (1984). Counsel's performance is deficient if it fell below an objective
standard of reasonableness. State v. Stenson, 132 Wn.2d 668, 705, 940 P.2d 1239 (1997).
If an ineffective assistance claim fails to support a finding of either deficiency or
prejudice, it fails. Strickland, 466 U.S. at 697.
Mr. Courter fails to show that trial counsel's performance was deficient. Because
the trial court properly admitted the evidence of Mr. Courter's refusal to submit to a BAC
test as evidence of gUilt on the DUI charge, there was no basis for defense counsel to
request a limiting instruction. Accordingly, Mr. Courter's ineffective assistance of
counsel claim fails.
E. Whether the prosecutor committed misconduct
Finally, Mr. Courter contends that the prosecutor committed misconduct during
closing argument when he argued that Mr. Courter's refusal to take a BAC test was
evidence that Mr. Courter was intoxicated. He argues that the prosecutor's disregard of
the court's limitation on the use of the BAC evidence was so flagrant and ill-intentioned
that a curative instruction could not have negated the prejudice it created.
To succeed on a claim ofprosecutorial misconduct, a defendant must establish
both misconduct and prejudice. State v. Fisher, 165 Wn.2d 727, 747, 202 P.3d 937
(2009). Prejudice exists when there is a substantial likelihood that the misconduct
affected the verdict. State v. McKenzie, 157 Wn.2d 44,52, 134 P.3d 221 (2006) (quoting
State v. Brown, 132 Wn.2d 529,561,940 P.2d 546 (1997)).
During closing argument, the prosecutor referenced Mr. Courter's refusal to take
the BAC test as follows: "And right there with the chance to put up or shut up, the
Defendant said 'No, I don't want to take that test.' And that's-that's something you can
consider. Why didn't the Defendant want to take that test? Well, he knew how much he
had to drink that day." RP (Aug. 9, 2013) at 200.
Again, Mr. Courter's argument is premised on his misunderstanding of the record.
Contrary to his assertion, the trial court did not rule that refusal evidence could not be
No.3l890-7-III State v. Courter
used to infer guilt. Thus, the prosecutor's statement was neither improper nor prejudicial.
Mr. Courter's prosecutorial misconduct claim fails.
We affirm.
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: