IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON,

No. 78618-1-I

Respondent,

DIVISION ONE

V.

UNPUBLISHED OPINION

TERRY LEE KERTIS,

Appellant. FILED: November 4, 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

offender waiver because it erroneously believed that it was barred by statute. 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

motorcyclist while driving his motorcycle up Commercial Avenue on his way home.

He claims the other motorcyclist rammed the wheels of his motorcycle several

times. He further claims that this 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 car forward

to avoid contact. Kertis Oompleted his skid stopping his bike near the rear quarter

panel of D’Amelio’s car with his bike in the center turn lane. He then moved his

bike behind D’Amelio as traffic began to move. The pair proceeded to move

forward in stop and go traffic down Commercial.

D’Amelio testified that about a block later, Kertis began loudly revving his

engine. Kertis then moved his bike to the center turn 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 hour speed 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 up to the side of Kertis’s

bike near the 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 straight through a red light in the intersection ahead.

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D’Amelio saw two cars brake hard to avoid a collision with Kertis in the intersection.

Kertis proceeded to weave between the two braking cars, to hop up to the sidewalk

then drive on the sidewalk as he continued to move away from 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

officer and was trying to stop him. D’Amelio also testified that Kertis acknowledged

driving on the sidewalk and speeding to get away from him.

The State charged Kertis with attempting to elude a police vehicle. At trial,

Kertis denied knowing that D’Amelio’s car was a police vehicle while he was 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 he was unable to 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.

A jury found Kertis guilty of attempting to elude a pursuing police vehicle. It

also found that he endangered people other than the pursuing officer. Kertis had

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no prior felonies and requested a 90 day sentence pursuant to a first time offender

waiver. The trial court sentenced 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 argues that he should be resentenced because the trial court

erroneously believed that it could not consider his request for a first time 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 the jury instructions at trial. He

argues that he is not precluded from raising the issue for the 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 look first to the asserted claim and assess whether, if

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correct, it implicates a constitutional interest as compared to another form of trial

error. !ç~ If we find the error of constitutional magnitude, we must then determine

whether the error was manifest in the trial record. k~. at 99.

Our Supreme Court has held that an instruction relieving the State of its

burden to prove actual knowledge to be of constitutional magnitude. See State v.

Shipp, 93 Wn.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 the jury instructions.

In this case, the jury was instructed on the elements that must be proven

beyond a reasonable doubt to convict Kertis of attempting to elude a police vehicle:

To convict the defendant of the crime of attempting to elude a

police vehicle, each of the following elements of the crime must be

proved beyond a reasonable doubt:

(1) That on or about September 25, 2016, the defendant drove a

motor vehicle;

(2) That the defendant was signaled to stop by a uniformed police

officer by hand, voice, emergency light, or siren;

(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) That the acts occurred in the State of Washington.

If you find from the evidence that each of these elements has

been proved beyond a reasonable doubt, then it will be your duty to

return a verdict of guilty.

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No. 78618-1 -116

On the other hand, if after weighing all the evidence you have a

reasonable doubt as to any one of these elements, then it will be your

duty to return a verdict of not guilty.

Another instruction defined “willfully”: “A person acts willfully as to a

particular fact when he or she acts knowingly as to that fact.” To assist with this

definition, another instruction was included defining “knowledge”:

A person knows or acts knowingly or with knowledge with respect

to a fact when he or she is aware of that fact. It is not necessary that

the person know that the fact is defined by law as being unlawful or

an element of a crime.

If a person has information that would lead a reasonable person

in the same situation to believe that a fact exists, the jury is permitted

but not required to find that he or she acted with knowledge of that

fact.

When acting knowingly as to a particular fact is required to

establish an element of a crime, the element is also established if a

person acts intentionally as to that fact.

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, rather than 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 other grounds 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

similar challenge. Leech, 114 Wn.2d at 710.

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We find no constitutional error in the jury instructions.

II. First Time Offender Waiver

Kertis next contends that the trial court erred in failing to consider his

request for a first time offender waiver under RCW 9.94A.650(2). He claims that

the trial court erroneously believed that the first time offender waiver 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. Orwick v City of Seattle, 103 Wn.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 a first time offender waiver would relieve him of certain 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

community custody.

Kertis misreads the 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 of all LFOs as a condition of community 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); RCW 43.43.7541.

Because Kertis has already served his sentence, and a first time offender

waiver would 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 not waive the endangerment enhancement.

We affirm.

WE CONCUR: