State v. Loutzenhiser

• Decision Date: 24 March 2016
• Docket Number: No. 33136-9-III,33136-9-III
• Parties: STATE OF WASHINGTON, Respondent, v. CALEB E. LOUTZENHISER, Appellant.
• Court: Washington Court of Appeals

STATE OF WASHINGTON, Respondent, v. CALEB E. LOUTZENHISER, Appellant.

No. 33136-9-III

COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE

March 24, 2016

UNPUBLISHED OPINION

FEARING, J. — Caleb Loutzenhiser appeals convictions arising from his flight in a stolen vehicle from a pursuing police officer. He also challenges provisions of his sentence. We reverse his conviction for failure to remain at the scene of an accident with an unattended vehicle. We affirm other convictions and affirm his sentence for the other convictions.

FACTS

On February 4, 2014, Spokane Police Officers Dustin Howe and Sergeant Kurt Vigesaa spotted a Mazda3 sedan, recently reported stolen, traveling in north Spokane. The officers, each driving an unmarked vehicle, trailed the Mazda3 while waiting for other officers to arrive for assistance. The Mazda3 negotiated several ''turns and twists," but eventually Officer Howe's car and the Mazda3 met at an intersection. Verbatim Report of Proceedings (VRP) (Oct. 20, 2014) at 29. Howe maneuvered his vehicle to within six inches of the Mazda3's front bumper, exited his vehicle, and approached the driver. Howe repeatedly yelled: "Police, get out of the car." VRP (Oct. 20, 2014) at 31. Officer Howe wore a tactical vest that read "police," and he wore a law enforcement badge.

The driver of the Mazda3, appellant Caleb Loutzenhiser, met Officer Dustin Howe's gaze, thumped the Mazda's accelerator, and rammed the police car. Due to icy road conditions, the Mazda3 slid sideways into the police car. The Mazda approached within six to eight inches of clipping Officer Howe or pinching him between the two cars. Loutzenhiser sped away. Loutzenhiser unsurprisingly did not leave contact information with Officer Howe before departing.

Officer Howe returned to his vehicle and chased Loutzenhiser. The pursuit shortly ended when the Mazda3 slid into rocks and a fence. Howe also lost control of his car, and the car slammed into the same rocks and fence. Howe could not extricate his vehicle. Loutzenhiser liberated his car from the fence's grasp and once again sped away. Loutzenhiser unsurprisingly did not leave contact information with Officer Howe or owners of the fence before departing.

Officer Dustin Howe pursued Caleb Loutzenhiser on foot but readily lost sight of him. Sergeant Kurt Vigesaa thereafter found, in the front yard of another nearby home, an abandoned Mazda3 with its doors open and engine running. Loutzenhiserunsurprisingly did not leave contact information with the home owners before departing. Vigesaa noticed footprints in snow leading from the Mazda3. Officers later arrested Loutzenhiser at a nearby convenience store.

PROCEDURE

The State of Washington charged Caleb Loutzenhiser with (1) second degree assault upon Officer Dustin Howe with a deadly weapon, the Mazda3, (2) possession of a stolen motor vehicle, the Mazda3, (3) first degree malicious mischief for damage to the Mazda3, (4) second degree malicious mischief for interruption and impairment of public property, the car operated by Officer Howe, (5) failure to remain at the scene of an accident with an attended vehicle or other property, and (6) failure to remain at the scene of an accident with an unattended vehicle. Note that count five involves an attended vehicle and count six an unattended vehicle. Both counts of failure to remain at the scene constitute misdemeanors. The State alleged in count six:

That the defendant, CALEB E. LOUTZENHISER, in the State of Washington, on or about February 04, 2014, did drive a vehicle which collided with another unattended vehicle, and knowing that s/he had been involved in such collision, did fail to stop immediately and locate the operator or owner of such vehicle and notify that person of the name and address of the operator and owner of the vehicle striking the unattended vehicle and did fail to leave in a conspicuous place in the vehicle struck a written notice, giving the operator's and owner's name and address of the vehicle striking such other vehicle.

Clerk's Papers (CP) at 42 (emphasis added).

The case proceeded to a jury trial. Sergeant Vigesaa testified on behalf of theState. At the beginning of his direct examination, Vigesaa explained his role within the Spokane Police Department:

Q What are your duties at this point in time?

A I'm a sergeant of the patrol anticrime team.

Q Is that what is commonly known as the PACT team?

A Correct.

Q What are the duties of the PACT team?

A We identify and build cases on the worst, most prolific Spokane criminals, usually specifically property crimes, burglars, stolen vehicles, et cetera.

Q Were those your duties on or about February 4th of this year?

A Yes.

Q Now on February 4th of this year at approximately 2:00 in the afternoon, were you working in that capacity?

A Yes.

Q And did you have at that point in time cause to come into contact with anyone in the courtroom today?

A The investigation led to the defendant, correct.

VRP (Oct. 20, 2014) at 53-54. Caleb Loutzenhiser did not object to this testimony. Jarrod Meade, the owner of the Mazda3, testified that his car needed $6,500 in repairs in order for it to operate again.

The trial court did not render a jury instruction for hit and run of an unattended vehicle in violation of RCW 46.52.010(1), as charged in count six of the information. Rather, the court gave an instruction based on RCW 46.52.010(2), which criminalizes failure to remain at the scene of an accident involving property. The instruction read:

A person commits the crime of hit and run when he or she is the driver of a vehicle and knowingly collides with property fixed, placed upon, adjacent to any public highway and he or she fails to take reasonable steps to locate and notify the owner or person in charge of such property of such fact and give that person his or her name and address and the nameand address of the owner of the vehicle he or she was operating or leave in a conspicuous place upon the property struck a written notice giving his or her name and address and the name and address of the owner of the vehicle he or she was operating.

CP at 145; 11A WASHINGTON PRACTICE: WASHINGTON PATTERN JURY INSTRUCTIONS: CRIMINAL 97.07, at 375 (3d ed. 2008) (WPIC).

The trial court instructed the jury on the requisite elements of second degree assault:

To convict the defendant of the crime of assault in the second degree, each of the following elements of the crime must be proved beyond a reasonable doubt:

(1) That on or about the 4th day February, the defendant:

(a) assaulted Officer Dustin Howe with a deadly weapon; and

(2) That this act occurred in the State of Washington.

CP at 96; accord 11 WPIC 35.12. The trial court defined "assault" in jury instruction number 9:

An assault is an act, with unlawful force, done with intent to inflict bodily injury upon another, tending but failing to accomplish it and accompanied with the apparent present ability to inflict the bodily injury if not prevented. It is not necessary that bodily injury be inflicted.

An assault is an act, with unlawful force, done with the intent to create in another apprehension and fear of bodily injury, and which in fact creates in another a reasonable apprehension and imminent fear of bodily injury even though the actor did not actually intend to inflict bodily injury.

CP at 94 (emphasis added); accord WPIC 35.50.

In closing argument, defense counsel posited a drug dealer defense and asserted that Caleb Loutzenhiser fled for his safety and not because he sought to elude law enforcement:

What I would say after hearing everything, what I believe to suggest is Mr. Loutzenhiser was afraid for his life. He's driving a car that he did not know anything was wrong with when he's driving it and a car pulls in front of him. We heard from Officer Howe that the car he was in has no markings, no lights, no sirens. It's specifically used so you don't know it's law enforcement.

This car all of a sudden pulls right in front of Mr. Loutzenhiser, blocks him in. A gentleman carrying a firearm gets out of that car. He may or may not have been wearing a black beanie cap that had no markings on it. Mr. Gagnon leads you to believe that the only explanation there is that Mr. Loutzenhiser knew this was law enforcement.

. . . .

I would suggest to you when you're in the life that Mr. Loutzenhiser and Mr. West and Josh are in, sometimes when you're dealing with drugs people come out brandishing firearms. You read about it all the time.

Mr. Loutzenhiser took off afraid, crashed, took off out of there on foot.

VRP (Oct. 21, 2014) at 153-54.

During deliberations, the jury submitted several questions to the court, two of which concerned jury instruction 9. The first question read: "On Instruction #9-need clarification. How do we decide intent?" The second question asked: "Last line of 2nd paragraph of instruction 9 is being interpreted by some jurors to mean that it is assault whether defendant intended to cause bodily injury or not-is this correct?" CP at 166, 168. To the first inquiry the trial court replied with the standard, "Please refer to instruction #6 which defines intent." CP at 166. The trial court wished a more specific answer to the second question in order to preclude additional questions from the jury, and the court spoke to counsel. The trial court proposed an additional instruction that the defendant did not need to intend bodily injury. The defense objected to the added jury instruction,although defense counsel agreed a conviction did not require intent to cause bodily injury. Counsel expressed concern about the jury confusing the two paragraphs in jury instruction 9.

After discussions with counsel, the trial court instructed the jury:

It is not necessary for the actor (defendant) to actually intend to cause bodily injury.

CP at 168. We later focus on the trial court referencing the actor as "defendant."

The jury convicted Caleb Loutzenhiser as charged. The verdict form for count six, failure to remain at the scene of...