### IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OFWASHINGTON, No. 78618-1-I

Respondent, DIVISION ONE V. UNPUBLISHED OPINION TERRY LEE KERTIS,

Appellant. FILED: November4, 2019 APPELWICK, C.J.

— Kertis appeals his conviction and sentence for attempting to elude a police vehicle. He claims that the jury instructions at trial relieved the State of proving the required mens rea beyond a reasonable doubt. He further claims that the trial court did not consider his request for a first time offenderwaiver because it erroneously believed that itwas barred bystatute. We affirm. FACTS In September 2016, Terry Kertis attended the annual Oyster Run in Anacortes. He drove home from the event at around 4:30 p.m. on his Harley Davidson motorcycle. Kertis claims that he got into a conflict with another motorcyclistwhile driving his motorcycle up Commercial Avenue on hisway home. He claims the other motorcyclist rammed the wheels of his motorcycle several times. He furtherclaims thatthis interaction made him feel fearful and panicked.No. 78618-1 -1/2 Captain Lucien D’Amelio made contact with Kertis while driving on Commercial. He was driving an unmarked black Toyota Camry equipped with lights and sirens, but was dressed in his police officer’s uniform. The lights and sirens on his vehicle were at the top of his windshield, rather than on the roof of his car as they would be in a marked police car. D’Amelio testified that a motorcycle skidded sideways behind his car. Kertis admitted he was driving the motorcycle. D’Amelio thought Kertis would hit him, so he moved his carforward to avoid contact. Kertis Oompleted his skid stopping his bike nearthe rearquarter panel of D’Amelio’s carwith his bike in the centerturn lane. He then moved his bike behind D’Amelio as traffic began to move. The pair proceeded to move forward in stop and gotraffic down Commercial. D’Amelio testified that about a block later, Kertis began loudly revving his engine. Kertis then moved his bike to the centerturn lane, passing on D’Amelio’s left, then drove in between cars to the right shoulder. D’Amelio watched as Kertis accelerated up the right shoulder. He estimated that Kertis was driving well over the 30 mile per hourspeed limit. D’Amelio then activated his lights and siren and moved forward through traffic. Other cars moved out of D’Amelio’s way after the lights and siren were activated. With his lights and siren still on, D’Amelio pulled uptotheside ofKertis’s bike nearthe intersection of 32nd Street and Commercial. D’Amelio rolled down his window and told Kertis to pull over. Kertis looked at D’Amelio, who was in uniform, pulled into the right hand turning lane, and accelerated straightthrough a red light in the intersection ahead.

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D’Amelio sawtwocars brake hardto avoid a collisionwith Kertis inthe intersection. Kertis proceeded toweave between thetwo braking cars, to hop uptothe sidewalk then drive on thesidewalkas he continued to move awayfrom D’Amelio. D’Amelio determined he would be unable to pursue Kertis due to traffic. He shut down his lights and sirens. D’Amelio had recognized Kertis’s unique motorcycle and surmised that Kertis was the rider. He made the decision to proceed to Kertis’s residence. D’Amelio met Sergeant Chad Pruiett near Kertis’s residence, and they proceeded to the residence together. The officers found Kertis outside his home when they arrived. They both testified that Kertis made a series of incriminating statements during the conversation. These statements included that Kertis knew D’Amelio was a police officerandwastrying tostop him. D’Amelio alsotestified that Kertis acknowledged driving on the sidewalk and speeding to get awayfrom him. The State charged Kertis with attempting to elude a police vehicle. Attrial, Kertis denied knowing that D’Amelio’s carwas a police vehiclewhile hewas riding his motorcycle. He testified that he did not observe any lights or sirens, or an officer directing him to pull over. He acknowledged driving on the sidewalk, but said hewas unableto recall passing cars in the turning lane or running a red light. He also said that he could not recall making incriminating statements to D’Amelio at his home. Ajuryfound Kertis guiltyofattempting to elude a pursuing policevehicle. It also found that he endangered people otherthan the pursuing officer. Kertis had

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no priorfelonies and requested a 90 daysentence pursuantto afirsttime offender waiver. The trial courtsentenced Kertis to 14 months and one day imprisonment. It indicated that it did not believe that the 12 month endangerment enhancement
was waivable, stating that its “hands [were] tied.” The court also imposed $600 in legal financial obligations (LFOs). Kertis appeals. DISCUSSION Kertis makes two arguments. First, he argues that he is entitled to a new trial because the knowledge instruction given to the jury was constitutionally deficient. Second, he arguesthatheshould be resentenced becausethetrial court erroneously believed that it could not consider his requestfora firsttime offender waiver. I. Jury Instructions Kertis argues that the jury instructions were constitutionally deficient. Specifically, he argues that the knowledge instruction relieved the State of its burden to prove actual knowledge and instead allowed the State to prove only constructive knowledge. Kertis did not object to thejury instructions at trial. He argues that he is not precluded from raising the issue forthe first time on appeal because the instructional deficiency is a manifest error affecting a constitutional right. RAP 2.5(a). In analyzing an asserted constitutional interest, we do not assume the alleged error is of constitutional magnitude. State v. O’Hara, 167 Wn.2d 91, 98, 217 P.3d 756 (2009). We lookfirst to the asserted claim and assess whether, if

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correct, it implicates a constitutional interest as compared to anotherform oftrial
error. !ç~ Ifwefind the errorofconstitutional magnitude, we mustthen determine whetherthe errorwas manifest in thetrial record. k~. at 99. Our Supreme Court has held that an instruction relieving the State of its burden to prove actual knowledge to be ofconstitutional magnitude. See State v. Shipp, 93Wn.2d 510, 515, 610 P.2d 1322 (1980). If Kertis is correctthat language in his jury instructions relieved the state of its burden, then the error would be manifest in the record because it appears in thejury instructions. In this case, the jury was instructed on the elements that must be proven beyond a reasonabledoubtto convict Kertis ofattempting to elude a policevehicle:

To convict the defendant of the crime of attempting to elude a police vehicle, each ofthe following elements ofthe crime must be proved beyond a reasonable doubt: (1) That on orabout September25, 2016, the defendantdrove a motorvehicle; (2) Thatthe defendantwas signaled to stop bya uniformed police officer by hand, voice, emergency light, orsiren; (3) That the signaling police officer’s vehicle was equipped with lights and siren; (4) That the defendant willfully failed or refused to immediately bring the vehicle to a stop after being signaled to stop; (5) That while attempting to elude a pursuing police vehicle, the defendant drove his vehicle in a reckless manner; and (6) Thatthe acts occurred in the State ofWashington. If you find from the evidence that each of these elements has been proved beyond a reasonable doubt, then itwill be yourdutyto return averdict ofguilty.

5No. 78618-1 -116 On the other hand, if afterweighing all the evidence you have a reasonable doubtastoanyone ofthese elements, then itwill beyour dutyto return a verdict of not guilty. Another instruction defined “willfully”: “A person acts willfullyas to a particularfactwhen he orshe acts knowingly as to thatfact.” To assistwith this definition, another instruction was included defining “knowledge”:

Aperson knows oracts knowingly orwith knowledgewith respect to afactwhen he orshe is aware ofthatfact. It is not necessarythat the person knowthatthe fact is defined by law as being unlawful or an element ofa crime. Ifa person has information thatwould lead a reasonable person in the same situation to believethatafactexists, thejury is permitted but not required to find that he or she acted with knowledge ofthat fact. When acting knowingly as to a particular fact is required to establish an element ofa crime, the element is also established ifa person acts intentionally as to thatfact. Kertis claims that the use of “reasonable person” language causes this instruction to suffer from the same constitutional defects as the knowledge instruction rejected in Shipri Most notably, he claims that it allowed the jury to convict Kertis based on constructive, ratherthan subjective knowledge. In light of Shipp, the pattern instruction was revised. State v. Leech, 114 Wn.2d 700, 710, 790 P.2d 160 (1990), abrogated on othergrounds by In re Pers. Restraint of Andress, 147 Wn.2d 602, 56 P.3d 981 (2002). This is the same instruction used to define knowledge in this case. ~ 11 WASHINGTON PRAcTIcE:
WASHINGTON PATTERN JURY INSTRUCTIONS: CRIMINAL 10.02, at 222 (4th ed. 2016). The Supreme Court found the revised instruction constitutional in the face of a similarchallenge. Leech, 114Wn.2d at 710.

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Wefind no constitutional error in thejury instructions. II. FirstTime OffenderWaiver Kertis next contends that the trial court erred in failing to consider his requestfor a first time offenderwaiver under RCW 9.94A.650(2). He claims that the trial court erroneously believed thatthe first time offenderwaiver could not be applied to the 12 month endangerment enhancement. Kertis has already been released from prison. A case is moot if a court can no longer provide effective relief. Orwickv City ofSeattle, 103Wn.2d 249, 253, 692 P.2d 793 (1984). Kertis argues that the issue is not moot because a finding that he should have been given afirsttime offenderwaiverwould relieve him ofcertain LFOs. He points to RCW 9.94A.650(4), “As a condition of community custody

. . . the court may order the offender to pay all court-ordered legal financial obligations.” He argues this language precludes the imposition of LFOs except as a condition of communitycustody. Kertis misreadsthe statute. By its plain terms, the statute does not prohibit LFOs being assessed against first time offenders. It merely gives the court the option to require payment ofall LFOs as a condition ofcommunity custody, rather than setting monthly payments under RCW 9.94A.760. RCW 9.94A.650(4). The LFOs assessed against Kertis are mandated by RCW 7.68.035(1)(a) and RCW 43.43.7541. Neither statute contains a waiver provision for first time offenders. RCW 7.68.035(1)(a); RCW43.43.7541. Because Kertis has already served his sentence, and a first time offender waiverwould not relieve him of his LFOs, we can no longer provide him effective

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reHef. The issue is therefore moot, and we decline to address whether the trial 

### court mistakenly believed it could notwaivethe endangerment enhancement. We affirm.

WE CONCUR: