122 Wash. App. 699 | Wash. Ct. App. | 2004
Calvin Smith challenges his conviction for driving while his license was suspended or revoked in the first degree. He argues that (1) the jury instructions omitted an element of the crime, (2) the trial court erred by admitting a certified statement from the Department of Licensing that impermissibly commented on Smith’s guilt, and (3) without that evidence, there was insufficient evidence to convict him. Because the jury instructions were complete and the evidence was properly admitted, we affirm the trial court.
FACTS
On October 10, 2001, after discovering that he was the targeted suspect in an undercover buy-bust operation, Calvin Smith attempted to elude pursuing police vehicles, stopping only after police officers physically blocked his vehicle with their car. Smith abandoned the vehicle and fled on foot but was tracked by a K-9 unit and arrested. On May 7, 2002, Smith again attempted to elude officers, stopping his car only after puncturing three of his tires. He fled on foot but was captured and again taken into custody. The State charged Smith with one count of delivery of cocaine, two counts of attempting to elude a pursuing police vehicle, one count of assault in the third degree, and one count of driving while his license was suspended or revoked (DWLS) in the first degree. A jury found Smith guilty on all counts except the assault charge. Smith received standard range sentences of 120 months for the delivery of cocaine, 29 months for each count of attempting to elude, and 12 months for the license suspension, all to run concurrently. He appeals the DWLS conviction.
I. Jury Instruction
“Due process requires the State to bear the ‘burden of persuasion beyond a reasonable doubt of every essential element of a crime.’ ”
Smith contends that the jury instructions failed to tell the jury that it must find Smith to be an habitual traffic offender. But contrary to Smith’s assertion, the jury instructions included all of the essential elements of first degree DWLS. RCW 46.20.342(l)(a) defines first degree DWLS, providing that:
A person found to be an habitual offender under chapter 46.65 RCW, who violates this section while an order of revocation issued under chapter 46.65 RCW prohibiting such operation is in effect, is guilty of driving while license suspended or revoked in the first degree, a gross misdemeanor.
Upward v. Department of Licensing
In this case, the jury was asked to find that at the time Smith drove the car, his “privilege to drive was suspended or revoked in the first degree in this or any other state . . . .” This instruction is sufficient because, under Upward, an person who has his license revoked in the first degree is an habitual traffic offender as a matter of law.
II. Certified Statement from DOL
Certified copies of public records may be admitted into evidence if they
*696 (1) contain facts, rather than conclusions that involve the exercise of judgment or discretion or express an opinion, (2) relate to facts that are of a public nature, (3) [are] retained for the benefit of the public, and (4) there [is] express statutory authority to compile the report.[13 ]
Smith contends that the public record submitted by the State — a certified statement from the custodian of records at DOL — inappropriately commented on his guilt and, therefore, should not have been admitted into evidence. Because the certified statement contained only neutral facts, Smith’s argument fails.
“A certified copy of a driving record is hearsay; it is a written out-of-court assertion offered at trial to prove the truth of the matter asserted.”
We affirm.
Review granted at 153 Wn.2d 1024 (2005).
State v. Deal, 128 Wn.2d 693,698,911 P.2d 996 (1996) (quoting State v. Hanna, 123 Wn.2d 704, 710, 871 P.2d 135, cert, denied, 513 U.S. 919 (1994)).
Id.; see also RAP 2.5(a)(3).
State v. DeRyke, 149 Wn.2d 906, 910, 73 P.3d 1000 (2003).
38 Wn. App. 747, 752, 689 P.2d 415 (1984).
Id. at 748.
Upward was charged under former RCW 46.65.090. This crime is now codified at RCW 46.20.342(l)(a).
Upward, 38 Wn. App. at 749.
Id. at 752.
Id. at 751.
Id. at 752 (citing State v. Graham, 14 Wn. App. 1, 538 P.2d 821 (1975)).
RCW 46.20.342.
State, v. C.N.H., 90 Wn. App. 947, 949-50, 954 P.2d 1345 (1998).
State v. Chapman, 98 Wn. App. 888, 890, 991 P.2d 126 (2000) (citing State v. Monson, 113 Wn.2d 833, 836, 784 P.2d 485 (1989)).
Monson, 113 Wn.2d at 845.
State v. Monson, 53 Wn. App. 854, 858, 771 P.2d 359, aff’d, 113 Wn.2d 833, 784 P.2d 485 (1989).
RCW 5.44.040 (“Copies of all records and documents on record or on file in the offices of the various departments of the United States and of this state or any other state or territory of the United States, when duly certified by the respective officers having by law the custody thereof, under their respective seals where such officers have official seals, shall be admitted in evidence in the courts of this state.”).
See ROW 9A.72.085; but see Monson, 53 Wn. App. at 858 (explaining that neither RCW 9A.72.085 nor ROW 5.44.040 reference each other. Hence, proper certification of a public document through other reliable means is not precluded.).