IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

DIVISION THREE

STATE OF WASHINGTON,

Respondent,

v.

ERICKA LYNN MCCANDLESS

also known as ERICKA LYNN HELLER,

Appellant.

__________________________________

In the Matter of the Personal Restraint of

ERICKA LYNN MCCANDLESS

also known as ERICKA LYNN HELLER,

Petitioner.

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No. 35241-2-III

(Consolidated with

No. 35746-5-III)

UNPUBLISHED OPINION

KORSMO, J. — Ericka Heller, a.k.a. Ericka McCandless, appeals from Spokane 

County convictions for attempting to elude, failure to remain at the scene of an accident, 

and obstructing a public servant, raising several contentions. We affirm.

FACTS

Ms. Heller was accused of leading Spokane Valley officers on a high speed chase 

during the evening of November 2, 2016. The pursuit began when Deputy Sheriff Sky 

Ortiz saw a pickup, containing two or three people, fail to stop for a stop sign. Deputy 

FILED

JANUARY 31, 2019

In the Office of the Clerk of Court

WA State Court of Appeals, Division III
No. 35241-2-III; 35746-5-III

State v. McCandless; In re PRP of McCandless

2

Ortiz followed the truck in his marked police vehicle. The truck accelerated to 

approximately 60 mph in a 35 mph zone.

Deputy Ortiz turned on his lights and siren, and a pursuit ensued. Multiple 

officers, including both a helicopter pilot and a canine handler, joined in the ten minute 

chase throughout the Spokane Valley area. The truck reached a speed of 80 mph. The 

driver lost control attempting to make a turn and slid into a curb, briefly coming to a stop. 

Deputy Spencer Rassier attempted to pin the truck to the curb with his patrol car, but the 

effort failed since he was the only police vehicle to catch up to the truck while it was 

stopped.1 The truck sped away from the curb and struck the deputy’s vehicle as it left. 

The pursuit came to a halt at the intersection of Sprague Avenue and Pines Road, 

where the driver lost control of the truck and crashed. Two individuals fled from the 

scene on foot: a female who exited the truck after it had stopped, and a male who was 

seen running while the truck was still spinning in the intersection. The female, identified 

as Ms. Heller, was captured after a foot pursuit when she tried to enter another car. 

Police canine Laslo chased and apprehended the male, later identified as Justin Alderson. 

A second female, Amanda Milhous, did not flee the truck and surrendered to law 

enforcement at the scene.

 

1 Deputy Rassier testified that he attempted a “post-PIT maneuver.” PIT (police 

intervention technique) involves striking the rear wheel of a vehicle with the front of a 

police car, sending the fleeing vehicle into a spin and forcing it to stop. The post-PIT 

maneuver involves using patrol cars to block the stalled vehicle.
No. 35241-2-III; 35746-5-III

State v. McCandless; In re PRP of McCandless

3

Alderson insisted that he had not been in the truck.2 He told officers that he had 

been at the nearby Walgreen’s store to purchase Camel cigarettes. An officer confirmed 

with a store cashier that she had just sold Turkish Royal cigarettes to Alderson shortly 

before the truck crashed. Corporal Jeffrey Thurman testified that Ms. Heller fled from 

the driver’s side of the truck. 

Ms. Heller was charged with possession of a stolen vehicle, attempting to elude, 

failure to remain at the scene of an accident (attended vehicle), and obstructing a public 

servant. The matter ultimately proceeded to jury trial. The prosecutor told jurors that the 

obstructing charge related to Ms. Heller’s flight on foot from the truck, while the other 

charges arose from her driving exploits.

The jury acquitted on the possession of a stolen vehicle charge, but convicted on 

the other three offenses. The jury also found that Ms. Heller’s driving had endangered 

others. The trial court found Ms. Heller’s offender score to be “9+” and sentenced her to 

a top end sentence of 41 months and one day on the eluding charge. The court imposed 

364 day sentences on the two gross misdemeanor offenses and directed that they be 

served concurrently with each other, but consecutively to the eluding conviction. The 

court orally directed that the credit for time served, 168 days as of sentencing, be applied 

 

2 He told officers that he was high on various substances and angry that the truck 

came near him, so he confronted the vehicle and threw a plastic bottle of beer at the 

driver. None of that evidence was admitted at trial.
No. 35241-2-III; 35746-5-III

State v. McCandless; In re PRP of McCandless

4

to the gross misdemeanor offenses. However, the written judgment did not apportion the 

time served to either set of offenses and only recognized 163 days of credit for time 

served. A subsequent order clarified that the 364 day sentences were to be served in the 

county jail, while the eluding sentence would be served in prison.

Ms. Heller then timely appealed to this court. She also filed a personal restraint 

petition (PRP) that was consolidated with the appeal. A panel heard oral argument of her 

appeal.

ANALYSIS

Ms. Heller raises six total arguments, which we address in the following order. 

First we consider her contention that there was insufficient evidence of her identity as the 

driver to support the jury’s verdicts on the eluding and failure to remain convictions. We 

then turn to her contention that evidence was admitted in violation of the hearsay rule 

and/or her right to confront witnesses. She next contends that the failure to remain statute 

was misapplied to this case. She also contends that the eluding and obstructing charges 

should have merged and that her credit for time served was miscalculated. In the PRP, 

she argues that she was not properly credited with “good time” earned in jail.

Sufficiency of the Evidence

Corporal Thurman identified Ms. Heller as the person who exited the driver’s door 

of the truck. That evidence was sufficient to support the jury’s conclusion.
No. 35241-2-III; 35746-5-III

State v. McCandless; In re PRP of McCandless

5

Well settled standards govern review of this contention. Evidence is sufficient to 

support a verdict if the jury has a factual basis for finding each element of the offense 

proved beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 

2781, 61 L. Ed. 2d 560 (1979); State v. Green, 94 Wn.2d 216, 221-222, 616 P.2d 628 

(1980). The evidence is viewed in the light most favorable to the prosecution. Green, 94 

Wn.2d at 221. Appellate courts defer to the trier-of-fact on issues of conflicting 

testimony, credibility of witnesses, and the persuasiveness of the evidence. State v. 

Camarillo, 115 Wn.2d 60, 71, 794 P.2d 850 (1990). 

Here, Ms. Heller points to conflicting evidence concerning whether she or another 

person was the driver. However, the conflict in the evidence is irrelevant to this court. 

Id. Corporal Thurman expressly identified Ms. Heller as the person who exited the truck 

from the driver’s door once the vehicle stopped. Report of Proceedings (RP) at 167. In 

light of the testimony that Mr. Alderson was fleeing from the area before the truck even 

stopped, the jury was free to credit the view that he was not in the truck during the 

eluding. 

This evidence permitted the jury to conclude that Ms. Heller was the driver alleged 

to have committed the two driving offenses. The verdicts were supported by sufficient 

evidence.
No. 35241-2-III; 35746-5-III

State v. McCandless; In re PRP of McCandless

6

Evidentiary and Confrontation

Ms. Heller next argues that two pieces of Corporal Thurman’s testimony violated 

the rules of evidence and the constitution. She is incorrect.

The basic rules governing review of evidentiary rulings also are well settled. This 

court reviews the trial court’s evidentiary rulings for abuse of discretion. State v. Guloy, 

104 Wn.2d 412, 429-430, 705 P.2d 1182 (1985). Discretion is abused when it is exercised 

on untenable grounds or for untenable reasons. State ex rel. Carroll v. Junker, 79 Wn.2d 

12, 26, 482 P.2d 775 (1971). A proper objection must be made at trial to perceived errors 

in admitting or excluding evidence; the failure to do so precludes raising the issue on 

appeal. Guloy, 104 Wn.2d at 421. “‘[A] litigant cannot remain silent as to claimed error 

during trial and later, for the first time, urge objections thereto on appeal.’” Id. (quoting 

Bellevue Sch. Dist. 405 v. Lee, 70 Wn.2d 947, 950, 425 P.2d 902 (1967)). The party must 

have challenged the admission of evidence at trial on the same grounds that it raises on 

appeal. Guloy, 104 Wn.2d at 422. As explained there:

As to statement (d), counsel objected but on the basis that it was not proper 

impeachment nor was it within the scope of redirect. A party may only 

assign error in the appellate court on the specific ground of the evidentiary 

objection made at trial. Since the specific objection made at trial is not the 

basis the defendants are arguing before this court, they have lost their 

opportunity for review.

(Citation omitted.)
No. 35241-2-III; 35746-5-III

State v. McCandless; In re PRP of McCandless

7

Witnesses are not permitted to opine on the credibility of others. State v. Black, 

109 Wn.2d 336, 348, 745 P.2d 12 (1987). However, unless the purported credibility 

testimony was challenged at trial, it does not amount to error unless it is “a nearly explicit 

statement by the witness that the witness believed the accusing victim.” State v. 

Kirkman, 159 Wn.2d 918, 936, 155 P.3d 125 (2007). 

Issues that present a manifest question of constitutional law may be considered for 

the first time on appeal, if the record is adequate to address the issue. State v. 

McFarland, 127 Wn.2d 322, 333-334, 899 P.2d 1251 (1995). The Sixth Amendment 

guarantees a criminal defendant the right to confront the witnesses against her. U.S. 

CONST. amend. VI; Crawford v. Washington, 541 U.S. 36, 42, 51, 124 S. Ct. 1354, 158 

L. Ed. 2d 177 (2004). This right, which applies to the states via the Fourteenth 

Amendment’s due process clause, necessarily speaks to a defendant’s right to crossexamine adverse witnesses. Pointer v. Texas, 380 U.S. 400, 404-405, 85 S. Ct. 1065, 13 

L. Ed. 2d 923 (1965). The right of confrontation is the guarantee of an opportunity to 

cross-examine the witness. United States v. Owens, 484 U.S. 554, 559, 108 S. Ct. 838, 

98 L. Ed. 2d 951 (1988). 

While the Sixth Amendment is clearly a constitutional right, the question of 

whether the confrontation clause itself presents an issue of “manifest error” typically is 

not one that can be decided in the first instance on appeal. The reason for that is that the 

confrontation right must be asserted at trial lest it be waived. Melendez-Diaz v. 
No. 35241-2-III; 35746-5-III

State v. McCandless; In re PRP of McCandless

8

Massachusetts, 557 U.S. 305, 327, 129 S. Ct. 2527, 174 L. Ed. 2d 314 (2009); State v. 

O’Cain, 169 Wn. App. 228, 247-248, 279 P.3d 926 (2012); State v. Schroeder, 164 Wn. 

App. 164, 168, 262 P.3d 1237 (2011).3 

With this background in mind, we turn to Ms. Heller’s argument. She contends 

that Corporal Thurman violated the hearsay rules and her confrontation rights (1) when 

he stated that he stopped trying to confirm Mr. Alderson’s alibi after visiting the 

Walgreen’s store, and (2) provided opinion testimony that he believed Alderson’s story 

that he had been inside the store during the pursuit. 

The first comment did not constitute hearsay and was not opinion testimony. It 

was a statement of fact—the officer did not go to any other stores to investigate 

Alderson’s story. That testimony did not relate the statement of another person and did 

not opine on the credibility of Alderson’s story. Understandably, the testimony did not 

draw any objection. There was no error of any kind.

The next statement, which was challenged by the defense, did constitute improper 

opinion testimony. However, the court sustained the defense objection and instructed the 

jury to disregard the question. RP at 179-180.4 Ms. Heller does not persuasively argue 

 

3 This rule has long been followed by both the United States and Washington 

Supreme Courts. See, e.g., State v. Nelson, 103 Wn.2d 760, 763, 697 P.2d 579 (1985) 

(citing cases in context of sentence revocation proceeding). 

4 The prosecutor then rephrased his question and obtained an answer that did not 

draw any objection—the officer was satisfied that he had gone to enough places to 

confirm where Alderson had been at the time of the eluding. RP at 180.
No. 35241-2-III; 35746-5-III

State v. McCandless; In re PRP of McCandless

9

that the court’s corrective action failed to resolve the problem. The court did not abuse 

its discretion in its handling of this objection.

The challenged testimony does not establish any prejudicial error.5 

Application of Failure to Remain Statute

Ms. Heller next argues that the hit and run statute was improperly applied to the 

“accident” that occurred during the course of the pursuit and that she should not have 

been charged with that offense because she did not cause the accident. This position has 

been previously rejected.

A driver involved in an accident has numerous duties, including the duty to stop 

and identify herself to the other driver and, if necessary, arrange for medical assistance. 

RCW 46.52.020(2), (3). Ms. Heller argues that this statute cannot reasonably be applied 

to a driver who is attempting to evade the police. However, that unsupported contention 

does not aid her. A driver being pursued by police who collides with another driver, 

whether it be an officer or an unlucky civilian who crossed paths with the pursuit, is not 

immunized by the failure to remain statute merely because she is already disobeying 

another traffic law. If anything, the ensuing collision creates a second reason why the 

flight should end.

 

5 Since both Corporal Thurman and the store clerk testified at trial, we do not 

perceive any violation of the right to confrontation. Both witnesses were cross-examined 

by the defense. Alderson did not testify, but none of his statements were offered at trial. 
No. 35241-2-III; 35746-5-III

State v. McCandless; In re PRP of McCandless

10

More significantly, Ms. Heller argues that she was not the cause of the accident 

and, therefore, had no duty to remain at the scene. Although her argument is dubious on 

these facts, it also is without legal support.6 The case she analogizes to is not apropos.

Ms. Heller cites City of Spokane v. Carlson, 96 Wn. App. 279, 979 P.2d 880 

(1999). There, Mr. Carlson, a driver who caused an accident on a bridge, motioned to the 

other driver and drove on looking for a safe place to pull over; the other driver lost 

contact with him and reported the accident to the police. Id. at 282. Carlson was cited 

for hit and run under the city municipal code and convicted of that offense. Id. at 282-

283. On appeal, he tried to excuse his failure to remain at the scene by pointing out that 

the victim did not remain, either, and arguing that it was inappropriate to place the burden 

of exchanging information on him in those circumstances. Id. at 285. This court 

disagreed, concluding that the statute could properly place the burden on Mr. Carlson, as 

the driver who caused the accident, to exchange information with the other driver. Id. at 

285-287. 

Carlson simply stands for the proposition that a driver who causes an accident 

must stay at the scene in order to fulfill his obligation to the other driver. It cannot stand 

 

6 The testimony shows that Ms. Heller lost control and hit the curb on her own 

accord and that the deputy did not use a PIT maneuver. Instead, the deputy attempted a 

“post-PIT” maneuver to pin her in, although that effort failed and the vehicles collided 

while Ms. Heller drove away. The question of which driver initiated contact is not 

resolved by the record, nor is there any evidence that the collision was the result of an

intentional decision by one driver to strike the other. 
No. 35241-2-III; 35746-5-III

State v. McCandless; In re PRP of McCandless

11

for the converse proposition, advanced by Ms. Heller, that one driver is permitted to 

leave the scene without satisfying her statutory obligations simply because she believed 

the other driver caused the accident.

Instead, our case law is clear that all drivers involved in an accident, including 

those whose vehicles do not actually strike, are obligated under the statute. In State v. 

Perebeynos, the defendant “initiated a lane change, although he never left his lane, his 

movement appeared to trigger” another driver’s reaction to swerve to the right very 

rapidly and hit a semi-truck in the far right lane. State v. Perebeynos, 121 Wn. App. 189, 

193, 87 P.3d 1216 (2004) (emphasis omitted). Mr. Perebeynos aborted the lane change, 

moving back to the center of his lane in less than half a second. Id. After hitting the 

truck, the victim’s car crossed in front of Perebeynos’ car, traversed the four lanes of 

traffic, and stopped in a construction zone near southbound traffic. Id. Division One of 

this court held that Mr. Perebeynos “was, at the very least, a participant in the events 

leading up to the accident.” Id. The court then reasoned:

There is no requirement under the hit-and-run statute or in Washington 

cases interpreting it that suggests a person must proximately cause a 

collision or engage in illegal behavior to be “involved in an accident.” 

First, causation is not an element of felony hit and run. The statute merely 

requires that a defendant be “involved,” which “is an imprecise term 

incorporating such concepts as being part of, contributing to and being a 

participant.” 

Id. at 194 (footnote omitted); accord State v. Bourne, 90 Wn. App. 963, 970, 954 P.2d 

366 (1998) (failure to remain does not require that the defendant cause the injury); State 
No. 35241-2-III; 35746-5-III

State v. McCandless; In re PRP of McCandless

12

v. Hughes, 80 Wn. App. 196, 202, 907 P.2d 336 (1995) (by racing with the car that 

crashed, defendant was “involved in an accident” for purposes of failure to remain 

statute). 

The duty imposed by the statute, and recognized by the noted cases, is for all 

drivers to exchange information and render aid. The duties imposed by the statute are not 

predicated on some theory of causation.

Ms. Heller also posits that she was not involved in an “accident” since she was 

intentionally struck by the officer. As noted previously, there is no factual basis for that 

assertion. Nonetheless, even an intentional “accident” triggers the duties imposed by the 

statute. On point is the decision in State v. Silva, 106 Wn. App. 586, 24 P.3d 477 (2001).

There a driver attempted to leave the scene of a traffic stop and an officer reached 

into the car in order to turn off the engine. Id. at 589. The officer eventually fell away 

from the moving car and was injured; the driver was convicted, among other things, of 

failure to remain at the scene of an accident. Id. at 588-589. He argued that because 

there was nothing accidental about the incident—he intentionally drove away and the 

officer intentionally acted to prevent the escape—that there was no “accident” within the 

meaning of the hit and run statute. Id. at 590. Division One of this court disagreed. 

After canvassing rules of statutory construction, policy arguments, and cases from other 

states construing similar statutes, the court held:
No. 35241-2-III; 35746-5-III

State v. McCandless; In re PRP of McCandless

13

the word “accident,” within the meaning of our hit-and-run statute, includes 

incidents arising from intentional conduct on the part of the driver and/or 

the victim.

Id. at 595. We agree.

Thus, even if the evidence had established that the two vehicles intentionally 

struck each other, the duties of the two drivers to exchange information and provide aid 

still existed. Ms. Heller was not free to ignore the statutory dictates merely because she 

believed the deputy purposely struck her car.

The crime of failure to remain at the scene of an accident did apply to the facts of 

this incident.

Merger

Ms. Heller next argues that the eluding and obstructing charges should merge 

because they could have been committed by the same conduct. Even assuming that her 

contention could be true, the evidence again does not support her argument.

The prosecutor expressly elected in closing argument the evidence upon which the 

jury should rely to find that the two crimes had been committed. He relied on the 

extensive driving to prove the eluding charge, and asked the jury to rely on Ms. Heller’s 

post-driving flight on foot to prove the obstructing charge. RP at 295-297, 299. 

Appellate courts review claims of double jeopardy de novo. State v. Jackman, 156 

Wn.2d 736, 746, 132 P.3d 136 (2006). Double jeopardy can arise in three different 

circumstances. State v. Gocken, 127 Wn.2d 95, 100, 896 P.2d 1267 (1995). As relevant 
No. 35241-2-III; 35746-5-III

State v. McCandless; In re PRP of McCandless

14

here, double jeopardy prohibits multiple criminal convictions for one crime, absent 

evidence that the legislature intended multiple convictions. Id. at 100-101; In re Pers. 

Restraint of Orange, 152 Wn.2d 795, 815, 100 P.3d 291 (2004); State v. Calle, 125 

Wn.2d 769, 776, 888 P.2d 155 (1995). When multiple convictions have been entered 

where only one is permitted, the remedy is to vacate the lesser offense. State v. Weber, 

159 Wn.2d 252, 265, 149 P.3d 646 (2006). The lesser offense is the lesser included 

offense or the one that carries the lesser punishment. Id. at 269. 

Merger also has a separate legislative component—did the legislature intend that 

the same conduct constitute two separate crimes? Merger is “a doctrine of statutory 

interpretation used to determine whether the Legislature intended to impose multiple 

punishments for a single act which violates several statutory provisions.” State v. 

Vladovic, 99 Wn.2d 413, 419 n.2, 662 P.2d 853 (1983). The merger doctrine has 

developed over time as an extension of double jeopardy principles. State v. Berg, 181 

Wn.2d 857, 864, 337 P.3d 310 (2014). Double jeopardy analysis depends on the express 

statutory language and legislative intent to permit or disallow multiple punishments. 

Merger is established if a defendant is convicted of offenses that are the same in 

law and in fact. Calle, 125 Wn.2d at 777. Merger is not established if each offense, as 

charged, includes elements not included in the other. If so, the offenses are different and 

multiple convictions can stand. Id. Washington also recognizes an exception to the 
No. 35241-2-III; 35746-5-III

State v. McCandless; In re PRP of McCandless

15

doctrine: “if the offenses committed in a particular case have independent purposes or 

effects, they may be punished separately.” Vladovic, 99 Wn.2d at 421. 

The crime of attempting to elude requires proof, inter alia, that a driver willfully 

refused to stop after being given a signal by a uniformed officer and thereafter drives in a 

reckless manner. RCW 46.61.024. In contrast, one obstructs a public servant when she 

willfully hinders, delays, or obstructs any law enforcement officer in the discharge of his 

or her official powers or duties.” RCW 9A.76.020. Although the two offenses share the 

same mental state of willfulness, the two statutes do not otherwise have elements in 

common. The eluding statute also has a number of technical elements describing the 

officer, his equipment, and the nature of the signal given to the driver. The obstructing 

statute requires proof of the willful intent to hinder police.

The two offenses are not the same law. It would be possible for the two offenses 

to be proved by the same conduct, however. One could drive away from an officer and 

both elude and hinder the officer. The two offenses have different purposes, however, 

and would fall within the Vladovic exception—the purpose of obstructing is to hinder an 

officer, while the purpose of eluding is to evade an officer by driving in a particular

manner that is dangerous to others. It is not enough that both offenses may have the same 

generalized effect of hindering law enforcement. They have slightly different purposes.

More importantly here, however, is the fact that the two crimes did not arise from 

the same conduct. The prosecutor expressly elected the post-driving flight on foot as the 
No. 35241-2-III; 35746-5-III

State v. McCandless; In re PRP of McCandless

16

basis for the obstructing charge. RP at 299. The jury was not asked to consider the 

driving conduct as a basis for finding the obstructing charge, and the driving was the only 

possible basis for the eluding charge. Under the facts of this case, the two events were 

not based on the same facts. 

Merger is not required because the two crimes were not the same in law and in 

fact. The trial court correctly considered them to be separate offenses.

Credit for Time Served 

Ms. Heller next argues that the trial court erred by only crediting her with 163 

days of credit and in not allocating that credit to her local sentence. She has failed to 

establish error.

The court was required to give Ms. Heller credit for time spent in custody solely 

on these offenses. RCW 9.94A.505(6). This statute reflects a codification of the 

defendant’s constitutional rights. In re Pers. Restraint of Costello, 131 Wn. App. 828, 

832, 129 P.3d 827 (2006). We review calculation of credit for time served de novo 

because the issue presents a question of law. State v Swiger, 159 Wn.2d 224, 227, 149 

P.3d 372 (2006). 

Here, there were 163 days from the defendant’s arrest on November 2, 2016, until 

her sentencing on April 14, 2017. Although the trial court misspoke and stated that there 

were 168 days, the judgment and sentence reflects the actual 163 day period. There was 

no error.
No. 35241-2-III; 35746-5-III

State v. McCandless; In re PRP of McCandless 

17

Ms. Heller also argues that the court was required to apply the credit to her local 

sentence rather than the state prison sentence, but she provides no authority in support of 

that argument. Although it would be in the county’s financial interest if the time served 

to date was credited against her local sentence instead of her state sentence, the judgment 

and sentence is silent on the topic. Ms. Heller’s only right is to be credited with the time 

served. RCW 9.94A.505(6). The judgment and sentence does that. She has no right to 

have that time applied against one particular portion of the sentence or another.

There was no error.

Personal Restraint Petition 

The PRP contends that Ms. Heller earned “good time” in the county jail that was 

not credited to her sentence.7

 She fails to meet the burdens placed on her petition. 

The burdens placed on a petitioner are significant. Relief will only be granted in a 

PRP if there is constitutional error that caused substantial actual prejudice or if a 

nonconstitutional error resulted in a fundamental defect constituting a complete 

miscarriage of justice. In re Pers. Restraint of Woods, 154 Wn.2d 400, 409, 114 P.3d 

607 (2005). It is the petitioner’s burden to establish this “threshold requirement.” Id. To 

do so, a PRP must present competent evidence in support of its claims. In re Pers. 

7 The PRP also raises the same argument that her credit for time served needed to 

be applied against her local, rather than state, sentence. Since that issue is considered in 

the appeal, we will not consider it again in this PRP. RAP 16.4 (d). 
No. 35241-2-111; 35746-5-111 

State v. McCandless; In re P RP of McCandless 

Restraint of Rice, 118 Wn.2d 876, 885-886, 828 P.2d 1086 (1992). If the facts alleged 

would potentially entitle the petitioner to relief, a reference hearing may be ordered to 

resolve the factual allegations. Id. at 886-887. 

Here, Ms. Heller has not established her argument. She has provided no evidence 

establishing what credit for time served the jail may have conveyed to the Department of 

Corrections, let alone whether the jail certified any earned early release time ("good 

time") that she may have accrued. RCW 9.94A.729(l)(a). In the absence of proof 

concerning what the jail actually did, she cannot establish that the jail erred in any 

manner. 

Accordingly, the PRP is dismissed for failure to establish that any error occurred. 

Convictions affirmed; petition dismissed. 

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. 

I CONCUR: 

2]rUow ,�· Siddoway, J. � 

18 
No. 35241-2-III consolidated with 35746-5-III 

FEARING, J. (concurring)- During a high speed chase with law enforcement 

officers, the driver of a pickup truck lost control of his or her truck when attempting to 

make a tum. The truck slid into a curb and briefly stopped. One sheriff deputy 

unsuccessfully attempted, with his patrol car, to pin the pickup truck to the curb. The 

driver of the pickup accelerated the truck and sped from the curb. The trial testimony 

lacks clarity as to whether the truck struck the deputy's vehicle or vice versa. The 

physicality of the collision suggests that the deputy's car struck the pickup because of the 

direction of the vehicles at the time of the collision and the location of the damage on the 

deputy's patrol car. Eventually, the pursuit continued and the pickup stopped when again 

striking a curb. The driver exited the car and fled from police. 

The State of Washington contends that Ericka Heller a/k/a Ericka Lynn 

McCandless drove the eluding pickup truck. Ericka Heller contends that Justin Alderson 

drove the pickup. The State argues that Alderson was an innocent bystander. 

The State of Washington charged Ericka Heller McCandless with possession of a 

stolen vehicle, attempting to elude, failure to remain at the scene of an accident, and 

obstructing a public servant. The prosecutor told jurors that the obstructing charge 
No. 35241-2-III cons. w/35746-5-III (concurrence) 

State v. Heller aka McCandless; PRP of Heller aka McCandless 

related to Heller's flight on foot from the pickup truck after her pickup truck came to a 

later stop, while all other charges arose from her driving exploits. During trial, Heller 

never argued that the failure to remain statute, RCW 46.52.020, did not apply. Instead, 

Heller conceded that the driver of the pickup committed the crime. She denied that she 

drove the truck. The jury acquitted on the possession of a stolen vehicle charge, but 

convicted on the other three offenses. 

Ericka Heller contends that the eluding and obstructing charges should merge. In 

response, I would not address whether the two crimes constitute the same crime in law. I 

would rest the affirmation of the conviction based on the State's limiting the obstruction 

charge to Heller's flight on foot after her pickup truck permanently stopped. The State 

thereby rested the two charges on distinct facts. I would reserve the question of whether 

the two crimes can constitute the same in law for another case. 

I would also limit our ruling in affirmation of the failure to remain charge on 

Ericka Heller's failure to argue at trial that RCW 46.52.020 did not apply in these 

circumstances. Heller limited her defense to the charge to a claim that Justin Alderson, 

not she, operated the pickup truck. Under the doctrine of waiver, issues not raised in the 

trial court may not be raised for the first time on appeal. RAP 2.5(a); State v. Nitsch, 100 

Wn. App. 512,519,997 P.2d 1000 (2000). The defendant may raise a new issue on 

2 
No. 35241-2-III cons. w/35746-5-III (concurrence) 

State v. Heller aka McCandless; PRP of Heller aka McCandless 

appeal if the issue concerns a manifest constitutional error. RAP 2.5(a). Heller does not 

assert a manifest constitutional error. 

When Ericka Heller conceded to the jury during closing that the driver of the 

pickup truck committed the crime of failure to remain, Heller likely even invited any 

error. Under the doctrine of invited error, a party may not materially contribute to an 

erroneous application of law at trial and then complain of it on appeal. In re Dependency 

of KR., 128 Wn.2d 129,147,904 P.2d 1132 (1995). Unlike waiver, the defendant may 

not even rely on a manifest constitutional error on appeal if she invited the error. The 

invited error doctrine precludes a criminal defendant from seeking appellate review of an 

error she helped create, even when the alleged error involves constitutional rights. State 

v. Studd, 137 Wn.2d 533, 546-47, 973 P.2d 1049 (1999); State v. Henderson, 114 Wn.2d

867, 870-71, 792 P.2d 514 (1990). 

In State v. Silva, 106 Wn. App. 586, 24 P.3d 477 (2001), another division of this 

court held that the failure to remain statute applies even if the defendant's intentional 

conduct caused the "accident." Because of waiver, if not invited error, this court need not 

decide whether the statute applies to the intentional striking of a patrol car during eluding 

a law enforcement pursuit. Otherwise, I would question the wisdom of the ruling. Silva 

stretches the meaning of the word "accident." The legislature likely never intended the 

statute to apply under such circumstances. The charge of malicious mischief, under 

3 
No. 35241-2-III cons. w/35746-5-III (concurrence) 

State v. Heller aka McCandless; PRP of Heller aka McCandless 

RCW 9A.48.070, for damage to public property fits the misconduct closer. 

If Ericka Heller committed the crime of failure to remain, one could readily argue 

that the sheriff deputy also committed the crime because he failed to stop to exchange 

information. RCW 46.52.020 admits no exception for an officer engaged in law 

enforcement activity. Another would readily respond to this argument by characterizing 

the contention as ridiculous, if not absurd, to propose that a law enforcement officer stop 

his vehicle at the scene of a collision when his or her patrol car collides with a vehicle he 

or she pursues. But such a response illustrates the silliness of applying the crime to 

anyone in this setting. 

I CONCUR: 

Fearing, J 

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