b iAi c ur VMbHtr'G i v : 2015 HAY -i+ AH 9=30

IN THE COURT OFAPPEALS OF THE STATE OF WASHINGTON DIVISION ONE STATE OF WASHINGTON, Respondent,

v. JOSHUA O'HARA CARGILL, Appellant. No. 71291-8-

UNPUBLISHED OPINION FILED: May 4, 2015 Verellen, A.C.J.

— Evidence is sufficientto support a conviction for attempting to elude a pursuing police vehicle when, as here, after an initialbriefstop, the defendant drove away upon being approached by the officer and told to turn offthe vehicle and not to leave. Accordingly, we affirm. FACTS On June 28, 2013, Joshua Cargill had two outstanding warrants for his arrest. On that day, an off-duty Arlington detective who was aware ofthe outstanding warrants


### saw Cargill at a Walmart store in Arlington. The detective called an on-duty officer, Officer Sargent, and advised him ofCargill's location and the outstanding warrants. 

### Sargent confirmed the two outstanding warrants and located Cargill driving eastbound on 172nd Street approaching the intersection of51stAvenue. Cargill was 

### traveling behind a large motor home. Sargentwas traveling westbound and activated 

### his emergency lights when he saw Cargill. Sargent made a U-turn and pulled in directly behind Cargill. The intersection lightwas red, and Cargillwas stopped behind the motorNo. 71291-8-1/2 

### home. When the lightturned green, Cargill turned right onto 51st and pulled offto the
side. 

### Sargent pulled in behind Cargill and exited his car. He approached Cargill's car with his gun drawn. The driver side window was down and there was a woman inthe 

### frontpassenger seat. Sargent announced to Cargill that he was under arrest. Cargill responded, "No," and revved his carengine.1 Sargent said, "Don't do it," meaning don't 

### flee.2 Sargentthen said, "Turn your vehicle offand put your hands out of the window."3 Cargillsaid, "Are going to shoot me? There's a kid inthe back seat."4 Once Sargent
saw that there was a child approximately two or three years old inthe back seat, he 

### holstered his gun. Cargillthen put the car into gear and drove off at a high rate of speed. Cargill drove southbound into the northbound lane of 51stAvenue. Traffic was very congested, and several cars had to drive offthe road to avoid a collision. Cargill weaved in and out ofthe northbound and southbound lanes at a high rate of speed. Sargent notified dispatch that Cargill had fled with passengers inthe car and that he was driving recklessly southbound on 51stAvenue. Due to safety concerns, Sargent
was advised to terminate a pursuit. Sargentthen followed Cargill in his car at a safe speed and confirmed to other police units Cargill's direction oftravel. Sargent also checked on motorists that had pulled overto avoid colliding with Cargill's car. Sargent eventually lost sight of Cargill and was unable to arrest him atthat time.



### 1Report ofProceedings (RP) (Nov. 25, 2013) at 45. 3]d 4 Id. at 46.No. 71291-8-1/3 

### The State charged Cargill withone count ofattempting to elude a pursuing police vehicle. Cargill moved to dismiss before trial and also atthe close ofthe State's case for insufficient evidence, but the trial court denied the motions. Thejury was instructed


### on the lesser included charge of failure to obey an officer, but found Cargill guiltyas charged. Thejury also found by special verdict that one or more persons was 

### threatened with physical injury or harm by Cargill's actions during the commission of the 

### crime, an aggravating factor. The court imposed a sentence of 29 months and 1 day of
confinement. 

### Cargill appeals.5 ANALYSIS 

### Cargill contends the evidence is insufficientto support his conviction because there was no evidence that he failed to stop when signaled to pull over or that he drove 

### recklessly while being pursued by an officer. We disagree. 

### Evidence is sufficient to support a conviction if, after viewingthe evidence in the 

### light mostfavorable to the State, anyrational trieroffactcould havefound guiltbeyond
a reasonable doubt.6 "A claim of insufficiency admits the truth ofthe State's evidence 

### and all inferences that reasonably can be drawntherefrom."7 "[A]ll reasonable inferences from the evidence must be drawn infavor ofthe State and interpreted most 

### strongly against the defendant."8 Circumstantial evidence and direct evidence are

5The State also filed a notice ofcross appeal, but the State's briefing does not 

### identify anyassignments or error orprovide argument on any cross appeal issues. Thus, we considerthe cross appeal abandoned. 6State v. Salinas. 119 Wn.2d 192, 201, 829 P.2d 1068 (1992). 7]dL 8 Id.No. 71291-8-1/4 

### deemed equallyreliable.9 We leave credibility determinations to the trier of fact and will not reviewthem on appeal.10 "The purpose ofthe eluding statute is to prevent unreasonable conduct in 

### resisting lawenforcementactivities."11 To convictCargill of the crime of attempting to elude, the State had to prove that "(1) a uniformed officer in a marked vehicle gives a 

### signal to stop, (2) a driverwillfully fails to stop, and (3) the driver exhibits a willful or 

### wanton disregardfor othersin attempting to elude the policevehicle."12 Cargill contends that the State failed to prove that he failed or refused to 

### immediatelybring the vehicle to a stop because the undisputed evidence showed that he pulled over as soon as he was able. But the evidence also shows that as soon as 

### the officer approached him, he revved his engine, distracted the officerby alertinghim there was a child inthe back, and drove off. He did so despite the officer's instruction to 

### turn off the carand that he not flee. Viewing this evidence in the light most favorable to 

### the State and drawing allreasonableness inferences against Cargill, this conduct showed that he willfully failed to stop when signaled by a uniformed officerto do so. Similar evidence was held to be sufficient in State v.Treat.13 There, the 

### defendant stopped briefly after being signaled topull over, but when the officers exited their vehicle and approached him, he accelerated toward one of the officers and then

9State v. Delmarter. 94 Wn.2d 634, 638, 618 P.2d 99 (1980). 10 State v. Camarillo, 115 Wn.2d 60, 71, 794 P.2d 850 (1990). 

### 11 State v.Treat. 109 Wn. App. 419, 426, 35 P.3d 1192(2001). 

### 12 State v. Hudson, 85 Wn.App. 401, 403, 932 P.2d 714 (1997); RCW46.61.024. 13 109 Wn. App. 419, 426-27, 35 P.3d 1192 (2001).No. 71291-8-1/5 

### drove away.14 The court concluded that "Mr. Treat was attempting to elude a pursuing police vehicle even though it had stopped and the deputies got out."15 Cargill further contends thatthe Statefailed to prove that he drove recklessly while being pursued by a police car, noting that the officer conceded that he was 

### instructed to terminate pursuit once Cargilldrove off and that he simply followed Cargill. Cargill appears to concede that his driving thereafterwas reckless and focuses instead 

### on the lack of pursuit during the reckless driving.16 Butas the court recognized in Treat, "[WJhile the eluding statute requires that the defendant elude a 'pursuing police vehicle,' 

### itdoes not require thatthe police vehicle remain moving at alltimes."17 As discussed above, Cargill was attempting to elude a pursuing police vehicle when he drove offafter the officertold him he was under arrest, to turn offhis car, and 

### not to flee.18 The evidence was sufficient to supportthe conviction. Cargill next contends that he was denied a fair trial by the prosecutor's improper comments during closing argument. We disagree. On a claim ofprosecutorial misconduct, the defendant bears the burden of 

### proving that the prosecutor's conductwas improper and prejudicial.19 Where, as here, the defendantfails to object attrial, the defendant must show that the misconductwas

14 Id at 426. 15 \± at 427. 

### 16 "The only reckless driving in this case occurred when Mr. Cargillwas not being pursued by a police car." Br. ofAppellant at 8. 

### 17109Wn. App. at 427. 

### 18Additionally, when the officer got back in his car and continued to follow Cargill, he activated his emergency lights. Thus, even though fromthe officer's standpoint, he was technically not "in pursuit," a reasonable inference to be drawn was that Cargill understood the officerwas signaling him to stop. 19 State v. Emery. 174 Wn.2d 741, 756, 278 P.3d 653 (2012).No. 71291-8-1/6


### so flagrant and ill-intentionedthatthe resulting prejudice could not have been cured with


### a limiting instruction.20 We determine the effect of any improperconduct byexamining "'the context ofthe total argument, the issues inthe case, the evidence addressed inthe 

### argument, and the instructions given to thejury.'"21 Cargill contends thatthe prosecutor misstated the evidence in a mannerthat 

### prejudiced his case. Specifically, he contends thatthe prosecutor improperly speculated about his intent by arguing that Cargill knew he had warrants before he was stopped, that he only stopped so he could escape and avoid arrestwhen the officer got out of his car, and that he used the child in his car as a shield. We disagree. Prosecutors are afforded wide latitude in making arguments to thejury and are 

### permitted to draw reasonable inferences fromthe evidence.22 The prosecutor's argument was a reasonable inference to be drawn from the evidence. From the moment he pulled over, Cargill's conduct evidenced such an intent: he kept the engine running after pulling over, revved the engine once the officer exited the police car and approached him, refused to turn offthe carwhen ordered to do so, and replied, "No," 

### when told not to leave.23 When he sawthe officer's gun drawn, he called attention to the child inthe back seat ofthe car and, as soon as the officer holstered the gun, he
drove off. 

### Cargill further contends thatthe prosecutor improperly appealed to the passion of 

### the jury by using the phrase "path of destruction" to describe his flight from the officer,
20 ]d at 760-61. 21 State v. Monday. 171 Wn.2d 667, 675, 257 P.3d 551, 555 (2011) (quoting State v. McKenzie. 157 Wn.2d 44, 52, 134 P.3d 221 (2006)). 22 State v. Anderson. 153 Wn. App. 417, 427-28, 220 P.3d 1273 (2009). 

### 23RP(Nov. 25, 2013) at 45.No. 71291-8-1/7 

### and by referring to the child in his car as "a baby."24 Again, this was reasonable argument based on the evidence. Testimony attrial established that cars were split 

### along the roadway, "hugging the ditch" after having to pull off to the side to avoid 

### colliding with Cargill, literally creating a path for the fleeingvehicle.25 Although no actual destruction occurred, the testimony described a situation where several cars were in 

### danger of a head-on collision with Cargill inheavy traffic. 

### Cargillalso fails to showthat referring to the childas a baby was unduly prejudicial. While referring to a two- to three-year-old child as "a baby" is technically inaccurate, the actual age ofthe child was inevidence before thejury. Inany event, Cargill fails to show that it is any less prejudicial to argue that he was endangering a toddler. Viewed in context, the prosecutor properly argued thatthere were other lives endangered by Cargill's conduct, including the child inthe back seat. Cargill fails to demonstrate thatthe prosecutor committed prejudicial misconduct. Statement ofAdditional Grounds In a statement of additional grounds, Cargill raises claims of additional prosecutorial misconduct and ineffective assistance of counsel, both ofwhich lack merit. He first contends that the prosecutor committed misconduct because during the officer's testimony and closing argument, the State used the term "reckless driving." But because Cargill did not object attrial and fails to show flagrant and ill-intentioned 

### misconduct resulting inprejudice, the claim ofprosecutorial misconductfails. As noted



### 24 Br. ofAppellant at 16. 25 RP (Nov. 25, 2013) at 48. The officertestified that he saw "[njumerous cars 

### splitting the road, having to drive off onto the shoulderto avoid [a] collision," and that the shoulderwas very limited and bordered a ditch. Id. at47.No. 71291-8-1/8 

### above, the issue at trial was not the recklessness of the driving butwhetherhe failed to stop and whetherthe police vehicle was pursuing him during the reckless driving. Cargill further claims his attorney was ineffective byfailing to object to the State's
use of the term "reckless" and byfailing to question the officer ifthe several cars pulled off the road was simply "a chain reaction" upon seeing othercars already pulled over 

### rather than being caused by his driving.26 Cargill fails to show that his attorney's performance was deficient and resulted in prejudice. As discussed above, Cargill fails to show any prejudicial effect ofthe State's use ofthe term "reckless," and counsel's 

### choice to not ask a question thatwas based on speculation was legitimate trialstrategy. Accordingly, his claim of ineffective assistance ofcounsel fails. We affirm thejudgment and sentence.

WE CONCUR: 

# &3X.J

26 Statement ofAdditional Grounds at 3.