### FILED JANUARY 5, 2016 In the Office ofthe ClerkofCourt W A StateCourt ofAppeals, Division III

INTHE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISIONTHREE STATE OF WASHINGTON, ) ) No. 32697-7-111 Respondent, ) ) v. ) ) DAVIDF. ARCH, ) UNPUBLISHED OPINION ) Appellant. ) FEARING, 1.

­ DavidArch appeals from his convictions for attempting to elude a 

# l



# . police officer and driving with a license suspended in the third degree. Wereverse the former conviction and affirm the latter conviction. FACTS On May 30, 2013, Washington StatePatrol TrooperLexLindquistpatrolled Highway 97 near Tonasket. He drove a Chevy Caprice fully markedwhite statepatrol

carwith a light baron top and door seals. After completing a traffic stop, TrooperLexLindquist drove southbound on Highway 97. As he drove, Lindquist saw a black Mercedes traveling inthe opposite direction at a speed of80 m.p.h. in a 60 m.p.h. zone. David Arch drove the Mercedes.

### No. 32697-7-111 State 

### v. Arch Lindquist executed a U-turn and chased the Mercedes, which acceleratedbeyond 80 m.p.h. Lindquist activated his siren, overhead emergency light bar, and wigwag headlights. The Mercedes accelerated to over 

### 145 m.p.h. and passed several vehicles. Lindquist eventually reached within ten car lengths ofthe Mercedes and maintained a speed of 

### 137 m.p.h. with the Mercedes for approximately one mile. Also on May 

### 30, 2013, United States BorderPatrol Agent Louis Koler drove a marked BorderPatrol truck southbound on Highway 

### 97. As Agent Kolertravelled through a bend in the road, he observed the preceding car suddenly brake and swerve to the highway's right shoulder. Kolerparrotedthe action takenby the forward car and avoided a collision with the black Mercedes as it drove northbound inthe southbound lane andtraveled between 

### 90 and 

### 100 m.p.h. Koler observed that the Mercedes entered the opposing lane in orderto maintain control around the comer. Seconds later Agent Koler saw Trooper Lindquist's state patrol car execute the comerwith lights blinking and siren blaring. Kolerturned around, engaged his truck's emergency lights, andjoinedthe pursuit. Trooper Lex Lindquist pursued the black Mercedes for twelve miles, after which the Mercedes slowed to between 

### 20 and 

### 25 m.p.h. and the car's driver waved his hand through the car's sunroof. Lindquist disabled his siren and issued commands through his patrol car's loudspeaker to the Mercedes driver. DavidArch pointed from the driver's side window to a dirt driveway. Arch turned the Mercedes into the driveway, drove 2No. 32697-7-II1 State v. Arch

across railroad tracks, and parkedhis car athis residence along Highway 97. TrooperLex Lindquist drew his pistol and ordered David Arch to exitthe black Mercedes. Arch complied. Lindquist handcuffed, searched, and read Miranda warnings to Arch. Arch told Lindquist that he fled because he did not want his car impounded because Florida and Georgia had suspended his respective state's driver's licenses. Lindquist confirmed the license suspensions with dispatch and transported Arch tojail. PROCEDURE The State ofWashington charged David Arch with one count ofattempting to elude a pursuingpolice vehicle and one count ofdriving while license suspended or revoked (DWLS) in the third degree. By an amended information, the State alleged the second count as follows: On or about May 30, 2013, in the County ofOkanogan, State of Washington, the above-named Defendant did drive a motor vehicle when his orher driver's license or driving privilege was suspended orrevoked solely because the person has committed an offense in another state(s) that, ifcommitted in this state, wouldnotbe groundsfor the suspension or revocation oftheperson's driver's license; contrary to Revised Code of Washington 46.20.342(1)(c). Clerk's Papers (CP) at 136 (emphasis added). The prosecution proceededto ajurytrial. On opening day, David Arch stipulated: That on May 30, 2013, my license was suspended in the States of Florida and Georgia due to commission ofoffenses, that ifcommitted in Washington State, wouldbe groundsfor suspension or revocation ofmy Washington State driver's license.



### 3No. 32697-7-II1 State v. Arch

Ex. 11 (emphasis added). Note thatthe stipulation conflicts with the amended charges that allege David Arch committed an offense in another state that, if committed in Washington, would not be grounds for suspension or revocation ofa driver's license. State TrooperLex Lindquist testified at trial but did not state he wore a uniform at the time he pursued or arrested DavidArch. TrooperLindquist testified that he drove a white state patrol car with a light bar on top and door seals. Lindquist stated that, when he stopped Arch, he holstered his weapon and placedArch in handcuffs while Arch lay

on the ground. Richard Letteer, a Washington Department ofLicensing (DOL) employee, testified thatDOL mailed David Arch a letter on July 5, 2012. The letter notified Arch that Washington would cancel his driver's license due to his suspension in another state. DOL cancelled Arch's license onAugust 20,2012. At trial, Letteer confirmed, according to a certified copy ofArch's driving record, thatArch's driver's license remained suspended on May 30, 2013. The State did not ask for admission ofthe certified copy of Arch's driving record as an exhibit. During trial, David Arch testified that he did not see the state patrol car's emergency lights because ofa defective driver side mirror on the blackMercedes. Arch addedthat he did not hearthe patrol car's siren because he loudly listened to a Barry White song on the Mercedes car stereo. Arch stated that he first saw the patrol car when 4No. 

### 32697-7-III State v. Arch

he was one hundred to one hundred and fifty yards from his house. David Arch and the State ofWashington presented each's respective proposed jury instructions to the court. During the instruction conference, the trial court noted that the instructions proposedby both sides incorrectly stated the elements and definition of driving with a suspended license inthe third degree: [TRIAL COURT]: One thing, Mr. Sloan, that we caught in the elements for driving while suspended third butwe didn't catch it in the definition, the word "not" is (inaudible) both ofyourMR. SLOAN [Prosecution]: Correct. Iprinted out a newelementsMR. BLOUNT [Defense]: Yes. THE COURT: OkayMR. SLOAN: -inwhat I submitted yesterday I had (inaudible) the word-I took the word "not" out. It's interesting; I was going back-looking at the statute this morning. The statute actually under third degree has the-theword "not." The elements does-instruction does not. Technically,-it makes it second degree. THE COURT: I thinkyou'reright. MR. SLOAN: So,-argument, we would-we would ask to leave the-the "not" out, because Ithink it's clearto thejury and it's definitely it's-third degree-likely it's second degree. But it is at a minimum third degree. And I still think it's a correct statement ofthe law in this case. Report ofProceedings (RP) at 181-82. [TRIAL COURT]: Mr. Blount, your thoughts aboutthat? MR. BLOUNT: On the-third degree, I would believe that-theon the elements that it should-that-"not" should not be there. So I'm in agreement with Mr. Sloan. THE COURT: Okay. But isn'tit-isn't it-isn'tthere a conflict if it's included in the definition but not in the elements? MR. BLOUNT: Yes. It-itis confusing

### 5

### No. 32697·7·III State v. Arch



### MR. SLOAN: -propose correctingthe definition as well to make it consistent- THE COURT: Okay.­ MR. BLOUNT: Yes. And I agree with that. RP at 183. David Arch requested, but did notpropose, ajury instruction on the mental state required for ajuryto convict on the charge ofattempting to elude apolice vehicle: MR. BLOUNT: There was one-additional instruction-And itit's-notan additional instruction; it's also a comment on-the attempting to elude, 94.02. There is an additional commentthat says an attempt to elude, "attemptto elude" in quotation, requires knowledge that there is apursuing police vehicle. Defense would say that thatwould also be another appropriate instruction to give here. There has been testimony as to--the question is when knowledge ofa pursuingpolice vehicle seems to be at issue here, and it seems that that would be an appropriate comment or an appropriate instructionto give thejury, so they can consider when Mr. Arch had knowledge ofa pursuingpolice vehicle. RP at 186. The State opposed the instruction: MR. SLOAN: YourHonor,-we can address thatjustby subsection (4) ofthe "to convict" instruction, "the defendant willfully failed or refused." Clearly I thinkthat is-suffices for any argument on mental state. It's not included in the elements. "Willfully" is. Which clearly is not accidental or unintentional; "willfully" is "willful." So as far as the mental state Ithink that is sufficientTHE COURT: -adefinition ofwillful. MR. SLOAN: Correct. And they don't suggest giving it in-thisunder this charge orthis elements instruction. But clearly, "willfully" does connotate--knowledge, at a minimum. Ifnot more. RP at 188. The trial court sided with the State: THE COURT: Okay. 6No. 32697-7-II1 State v. Arch

All right. So I think we'repretty much in agreement, then, with what we discussed. Really the only difference is with the defense'sjust proposed need for an instruction involving a definition ofknowledgeWell, for two reasons I'mnot going to give a specific instruction on that. Number one,jury instructions are-are to be designed orfashioned in a way that allows both sides full and fair opportunity to argue theirtheir version ofthe case. And

-- their theory ofthe case, whether it's the [S]tate or whether it'sthe defense. And in my view, as the court intends to give these, without the definition, youhave the ability to argue that. Based potentially on what I heard thathad been testified to yesterday, and-in terms ofwhen he first became aware ofit, he pulled over. And-And-So I think you can argue that theory ofthe case within the instructions that you-thatthe court intends to give. The second reason that I'm not going to give it is because-it's not necessary. And by that, I think the [S]tate properlypoints out, in the comments section, the willful failure requires thatthe defendant have knowledge and-andthat goes back to the notion that ifyou'renot aware ofit how can you be expected to react. And-And that's the whole defense's theory, it seems to meAnd-I think the instructions allow you to do that, without throwing in another definition, anotherrequirement-especially whenthe word "knowledge" is not mentioned anywhere in the statute-specifically in the--inthe so-called "toconvict" orthe elements instruction. So I'mnot going to allow it. Therecord will reflect thatyou're proposing it. And ofcourse you'll have an opportunity to except (inaudible). RP at 189-90. The trial court later asked the parties to disclose any objections to the final instructions to thejury. Neither side entered an objection. The trial court instructed the jury on the definition and elements ofDWLS in the third degree as follows: A person commits the crime ofdriving while license suspended or revoked in the third degree when he or she drives a motor vehicle while an order is in effect that suspends orrevokes his orher driver's license or 

### 7No. 32697-7-III State v. Arch driving privileges, in this or any other state, because the person committed an offense in another state that, ifcommitted in this state, wouldbe grounds for the suspension orrevocation oftheperson's driver's license. To convictthe defendant ofdriving while license suspended or revoked in the third degree, each ofthe following three elements ofthe crime must be proved beyond a reasonable doubt: (1) That on or about May 30, 2013, the defendant drove a motor vehicle; (2) That at the time ofdriving an order was in effect that suspended orrevoked the defendant's driver's license or driving privileges, in this or any other State, because the defendant committed an offense in another state that, ifcommitted in this state, wouldbe grounds for the suspension or revocation ofthe defendant's driver's license; and (3) That the driving occurred in the County ofOkanogan. CP at 40-41 (emphasis added). Thus, although the State alleged that DavidArch's license "was suspended or revoked solely becausethe person has committed an offense in another state(s) that, ifcommitted in this state, wouldnot begrounds for the suspension

or revocation," CP at 136 (emphasis added), the trial court instructed thejury to find whether the offenses committed by Arch in Florida and Georgia "wouldbe grounds for the suspension" ofArch's license in Washington. CP at 40. The instruction given conflicts with llA Washington Practice: Washington Pattern JuryInstructions: Criminal 93.06, at 315 (3d ed. 2008) (WPIC), but conforms to WPIC 93.07, at 319. The trial courtrespectively deliveredjury instructions on the definition and elements ofattempting to elude a police vehicle as: A person commits the crime ofattempting to elude a police vehicle when he or she willfully fails orrefuses to bring his orhervehicle to a stop after being given a visual or audible signal to bring the vehicle to a stop by 

### 8No. 32697-7-III State v. Arch

apolice officer, and while attempting to elude a pursuingpolice vehicle he orshe drives his orhervehicle in a reckless manner. A signal to stop given by a police officer may be by hand, voice, emergency light, or siren. The police officergiving such a signal must be in uniform and the officer's vehicle must be equipped with lights and siren. To convict the defendant ofattempting to elude apolice vehicle, each ofthe following elements ofthe crime must be proved beyond a reasonable doubt: (1) That on or about May 30, 2013, the defendant drove a motor vehicle; (2) That the defendant was signaledto stop by a uniformed police officerby hand, voice, emergency light, or siren; (3) That the signalingpolice officer's vehicle was equipped with lights and siren; (4) Thatthe defendant willfully failed orrefused to immediately bring the vehicle to a stop afterbeing signaled to stop; (5) Thatwhile attempting to elude apursuing police vehicle, the defendant drove his or her vehicle in a reckless manner; and (6) That the acts occurred in the State ofWashington. CP at 35-36 (emphasis added). The trial court did not afford thejury with a definition of "willfully." Thejury found David Arch guilty ofboth eluding a police officer and DWLS in the third degree. By special verdict, thejury found that Arch's eludingthreatened other persons with physical injury orharm. The trial court sentencedDavidArch to thirty days' confinement for attempting to elude a police vehicle, an additional twelve months' mandatory confinement for the enhancement, and ninety days' confinement for driving with a suspended license in the third degree.

9No. 32697-7-II1 State 

### v. Arch

At sentencing, DavidArch requested a stay ofhis sentence pending appeal. The trial court summarily denied Arch's request. LAW AND ANALYSIS DavidArch raises six contentions on appeal: (1) his conviction for attempting to elude apolicevehicle is not supported by sufficient evidence, (2) his conviction for driving with a license suspended in thethird degree is not supported by sufficient evidence, (3) the trial court erred in instructing thejury on an alternate means of committing DWLS in the third degree not charged in the information, (4) the trial court erred in not allowing Arch to give ajury instruction onthe requisite mental state for attempting to elude a police vehicle, (5) Arch's defense counsel was ineffective for failing to objectto the trial court's instructions to thejury, and (6) Arch's defense counsel

was ineffective for failing torequest ajury instruction defining "willfully." We agree that David Arch's conviction for attempting to elude a policevehicle is not supported by sufficient evidence. Therefore, wereverse the conviction with directions'to dismiss the charge. Because ofour disposition ofassignment oferror one,

we do not address assignments oferror four, five, and six. We holdthat sufficient evidence supported DavidArch's conviction for DWLS in the third degree and the trial court committed no error injuryinstructions with regard tothis charge. Therefore, we affirm Arch's conviction for DWLS in the third degree. Issue 

### 1: Whether sufficient evidence supportsDavidArch'sconviction/or 10No. 32697-7-111 State 

### v. Arch attempting to elude apolice vehicle? Answer 

### 1: No, since the State o/Washingtonpresentedno evidence that Trooper LexLindquistwore a uniform. David Arch argues that the State did notprovide evidence that TrooperLex Lindquist was dressed in uniform whenLindquist attempted to stop Arch on Highway 97. Arch maintains that, eventhough Lindquist drove a marked State Patrol vehicle and Arch knew Lindquist was a law enforcement officer, the State'sproofis lacking for a trier of fact to infer beyond a reasonable doubt that Lindquistwore a uniform when he stopped Arch. We agree. Dueprocess requires the State to prove, beyond a reasonable doubt, every element ofthe crime charged. In re Winship, 397 U.S. 358,364,90 S. Ct. 1068,25 L. Ed. 2d 368 (1970). Evidence is sufficient if, after viewing it in the light most favorable to the State,

a rational trier offact could find each element ofthe crime beyond a reasonable doubt. State v. Witherspoon, 180 Wn.2d 875,883,329 P.3d 888 (2014); State v. Green, 94 Wn.2d 216, 221-22, 616 P.2d 628 (1980). A defendant challenging the sufficiency ofthe evidence at trial admits the truth ofthe State's evidence and all reasonable inferences therefrom. Witherspoon, 180 Wn.2d at 883. RCW 46.61.024(1) creates the offense ofattempting to elude a police vehicle. The statute reads:



### 11No. 32697-7-III State v. Arch Any driver ofa motor vehicle who willfully fails orrefuses to immediately bring his orhervehicle to a stop and who drives his or her vehicle in a reckless manner while attempting to elude a pursuingpolice vehicle, after being given a visual or audible signal to bring the vehicle to a stop, shall be guilty ofa class C felony. The signal given by the police officer may be by hand, voice, emergency light, or siren. The officer giving such a signal shall be in uniform and the vehicle shall be equipped with lights and sirens. (Emphasis added.) It is an element ofthe crime ofattempting to elude apursuingpolice officer, RCW 46.61.024, that the officer who signals a driverto stop "shall be in uniform." State 

### v. Hudson, 85 Wn. App. 401,403,932 P.2d 714 (1997); State v. Fussell, 84 Wn. App. 126, 127,925 P.2d 642 (1996). The term "shall" in a statute is mandatory unless contrary legislative intent is apparent. State 

### v. Hudson, 85 Wn. App. at 403. Criminal statutes are strictly construed. Hudson, 85 Wn. App. at 403. One might imagine that an officer in a marked patrol car during a pursuit ofa speedingtrafficker is almost certain to have worn a law enforcement uniform. Fromthis assumption, one might further expect ajuryto be free to inferthatthe officer donned a uniform. After all, the elements ofa crime may be proved by circumstantial evidence. State v. Dugger, 75 Wn.2d 689, 690, 453 P.2d 655 (1969). The scope ofan appellate review ofthe sufficiency ofcircumstantial evidence is limited to a determination of whetherthe state has produced substantial evidence tending to establish circumstances

12No. 32697-7-111 State v. Arch

from which thejury could reasonably inferthe fact to be proved. State v. Myers, 65 Wn.2d 911,913,400 P.2d 372 (1965). Twin decisions ofthis court disagree. In State v. Hudson, 85 Wn. App. 401 (1997) two officers in a marked patrol vehicle noticed Qualagine Hudson change lanes in front ofthem. Afterrunning a check

on the license plate, the officers learned that Hudson's car was stolen. The officers activated their emergency lights and siren. Hudson attempted to eludethem. He ran three stop signs, traveled along train tracks, and trekked across the front lawn ofa residence. Upon exiting the car, one officeryelled "Stop" and the other officeruttered "Police." No trial testimony established whether the officers were in uniform. This court noted that we must view all facts and reasonable inferences in the light most favorable to the State and most strongly against Hudson to determine whether a rational trier offact could have found the elements ofthe crime beyond a reasonable doubt. We held that the officers' being in a markedvehicle and Hudson'sprobable knowledge that his pursuers

were police, without more, was insufficient. We reversed and dismissed the conviction. In State v. Fussell, 84 Wn. App. 126 (1996), we dismissed Stephen Fussell's conviction for attempting to elude a police vehicle. Two officers driving a marked patrol

carwith emergency lights and sirens attempted to stop Fussell as he drove over 100 m.p.h. Only the officers testified, and neither stated that he wore a uniform at the time of the stop. We held that the evidence was insufficient for a rational trier offact to find



### 13No. 32697-7-111 State v. Arch beyond a reasonable doubt that the officers were in uniform when they attempted the stop. The State argues that this appeal adds facts not found in Fussell orHudson to the calculation ofwhether sufficient evidence supports the conviction. State TrooperLex Lindquist worked traffic patrol. TrooperLindquist displayed a gun and handcuffed David Arch. BorderPatrol Agent Louis Koler testified that, when he arrived at the stop, he recognized Lindquist as a trooper engaged in a high risk stop. A sheriffdeputy later arrived at the scene and readily identified Lindquist as a trooper. At trial, Arch identified those who arrested him as law enforcement officers. We find no distinguishing important facts in this appeal. The officers inFussell and Hudson also rode in marked patrol vehicles. All other facts underscored by the State occurred afterthe pursuit. Witnesses at the scene ofthe arrest testified that they identified Lex Lindquist as a law enforcement officer, but no one testified that the identificationresulted from a uniform worn by Lindquist. We follow State 

### v. Fussell and State v. Hudson and reverse David Arch's conviction for attempting to elude a police officer. Reversal for insufficient evidence bars a retrial and commands dismissal ofthe charge. State v. Wright, 131 Wn. App. 474, 478, 127 PJd742 (2006), aff'd, 165 Wn.2d 783,203 P.3d 1027 (2009). Issue 

### 2: Whether sufficientevidence supportsDavidArch J s conviction/ordriving with a license suspendedin the thirddegree?



# r 14No. 32697-7-111 State v. Arch

Answer 

### 2: Yes. David Arch contends that a rational trier offact could nothave found him guilty of DWLS in the third degree beyond a reasonable doubt, because the State did notprovide evidence ofthe reason for which his license was suspended in Florida and Georgia. He impliedly argues that, since the State did notpresent evidence as to the reason for the foreign state suspensions, thejury could not find that the grounds for the suspensions would also be grounds for suspension in Washington State. The trial court instructed the jurythatthejury may convict only ifArch committed an offense in Georgia orFlorida that, ifcommitted in this state, would be grounds for the suspension orrevocation ofhis driver's license. We disagree, because Arch fails to recognize the efficacy ofhis stipulation. RCW 46.20.342 provides, in relevant part: (1) Itis unlawful for any person to drive a motorvehicle in this state while thatperson is in a suspended orrevoked status orwhen his orher privilege to drive is suspendedor revoked in this oranyother state. (c) A person who violates this section when his orher driver's license or drivingprivilege is, at the time ofthe violation, suspended or revoked solely because

... (v) the person has committed an offense in another state that, ifcommitted in this state, wouldnotbe grounds for the suspension or revocation oftheperson's driver's license

... orany combination of(c)(i) through (vii) ofthis subsection, is guilty ofdriving while license suspended orrevoked in the third degree, a misdemeanor. (Emphasis added.) Thejury instruction and David Arch's stipulation use the phrase "would be grounds," while the statute and charging documents use the phrase "would not 15No. 32697-7-111 State 

### v. Arch

be grounds." As a preliminary matter, then, this court must decide whetherto reviewthe sufficiency ofthe evidence ofthe crime with which Arch was charged, orthe crime as set forth in the to-convict instruction. Jury instructions not objected to at trial become the law ofthe case. State v. Hickman, l35 Wn.2d 97, 102,954P.2d 900 (1998); State 

### v. Hames, 74 Wn.2d 721, 725, 446 P.2d 344 (1968). Nevertheless, ifajury instruction omits an essential element ofthe charged crime, appellate courts may considerthe issue for the first time on appeal, as such omission constitutes a manifest error affecting a constitutional right under RAP 2.5(a)(3). State 

### v. Chino, 117 Wn. App. 531, 538, 72 P.3d 256 (2003). When an information alleges only one crime, it is constitutional errorto instructthejuryon a different, uncharged crime. State v. Kirwin, 166 Wn. App. 659,669,271 P.3d 310 (2012). A newtrial is appropriate ifit appears that thejurymistakenly convicted the defendant ofan uncharged crime. Kirwin, 166 Wn. App. at 669. However, the error may be harmless ifother instructions clearly and specifically define the charged crime. Chino, 117 Wn. App. at 540. In criminal cases, the State assumes the burden ofproving otherwise unnecessary elements ofthe offense when such added elements are included without objection in the 'toconvict' instruction. State 

### v. Hickman, l35 Wn.2d at 102. On appeal, a defendant can challenge the sufficiency ofthe added element. Hickman, l35 Wn.2d at 103. Thus, in a sufficiency ofthe evidence challenge, an appellate court should typically review the final 16No. 32697-7-III State v. Arch

to-convict instructions to determine whether a rational trier offact could have found each element ofthe crime. In State v. Kirwin, 166 Wn. App. 659 (2012), this court followed a different approach. 

### In Kirwin, the State charged Jennifer Lynn Kirwin with first-degree custodial interference and alleged that she took and concealed her children from their father, her ex-husband, with the intent to deny access to a parenthaving a lawful right to physical custody. The trial court, however, instructed thejury on the elements ofa different section ofthe statute, that beingwhether Kirwin tookher children "fromthe otherparent having the lawful right to time with the child pursuant to a court-ordered parentingplan." Kirwin, 166 Wn. App. at 663. On appeal, Kirwin contended that the Statehad failed to present sufficient evidence to support a conviction on the crime as originally charged. Thepanel agreed that the inconsistency between the charging documents and thejury instructions deprived Kirwin ofdue process. However, the panel disagreed on the proper remedy for the error. The majority held that it should address Kirwin's challenge to the sufficiency ofthe evidence to supportthe crime described in the charging document. Findingthe evidence inadequate, this courtreversed and dismissed Kirwin's conviction. Kirwin, 166 Wn.2d at 675. The dissentingjudgewrote that the erroneousjuryinstruction warranted a new trial, but not outright dismissal. Moreover, the dissentingjudgepenned that the law ofthe case doctrine limited the scope ofreview ofKirwin's sufficiency ofthe

17No. 32697-7-111 State v. Arch

evidence challenge to thejury instructions and not the charging document. Kirwin, 166 Wn. App. at 677-78 (Korsmo, 1., dissenting). Here, as in Kirwin, David Arch assigns errorto the sufficiency ofthe evidenceto support a conviction based on the crime described in the information. Hemaintains that the State failed toprovide evidence that his suspensions in Florida and Georgia were the result ofoffenses that, ifcommitted in Washington, would notwarrant suspension in this state. Importantly, however, and unlike in Kirwin, Arch stipulated that those offenses wouldwarrant suspension in Washington. When the parties stipulate to the facts that establish an element ofthe charged crime, thejuryneed not find the existence ofthat element, and the stipulationtherefore constitutes a waiver ofthe right to ajurytrial on that element as well as the right to require the State prove that elementbeyond a reasonable doubt. State v. Humphries, 181 Wn.2d 708, 714-15, 336 P.3d 1121 (2014). Because ofthis distinction, the proper scope ofthis court's review is the crime as described in thejury instructions and not the charging document. Moreover, as a general rule, it makes more sense to review the sufficiency ofthe evidence ofa crime as instructedratherthan as charged. Limiting review to the crime as charged could give the State an unfair advantage on appeal as itwould eliminate the requirementthat the State prove additional elements not previously charged beyond a reasonable doubt. Having determined that the proper scope ofreview is the to-convict instruction on driving with license suspended in the third degree, we find sufficientevidence supports 18No. 32697-7-111 State v. Arch

the conviction. David Arch clearly and voluntarily stipulated that he committed offenses in Florida and Georgia that "ifcommitted in Washington State, would be grounds for suspension or revocation ofmy Washington State driver's license." Ex. 11. Although the State did not amend the information prior to resting its case, Arch's stipulation and explicit agreement with the omission ofthe word "not" from thejury instruction amounted to a waiver ofArch's right to ajurytrial on that element. See Humphries, 181 Wn.2d at 714-15. We affirm Arch's conviction for DWLS in the third degree. Issue 

### 3: Whether the trial court erred in instructing thejuryon an alternate means of committingDWLS in the thirddegree not charged in the information? Answer 

### 3: No. As explained above, a defendant convicted ofa crime not charged in the original information is typically entitled to a new trial. State v. Kirwin, 166 Wn. App. at 669 (2012). Nevertheless, David Arch had notice ofthe State's intention to prosecute him for DWLS in the third degree under a different theory, as evidenced by his stipulation. Thus,

we may affirm the charge ofwhich Arch had notice and ofwhich thejury found him gUilty. DavidArch'sStatement of Additional Groundsfor Review David Arch raises two additional grounds for this court's review: (1) Arch contends he was not permitted to hire private counsel, and (2) Arch's attorney did not

19No. 32697-7-111 State 

### v. Arch

infonn him ofthe effect ofsigning a speedy trial waiver. Arch did not raise either of these issues below. A criminal defendant can submit a pro se statement ofadditional grounds for review to identify and discuss those matters related to the decision under review that the defendant believes have not been adequately addressed by the brieffiled by the defendant's counsel. RAP 1O.10(a). The rule additionally provides in part: Reference to the record and citation to authorities are not necessary orrequired, but the appellate court will not consider a defendant's statement ofadditional grounds for review ifit does not infonn the court of the nature and occurrence ofalleged errors. Except as required in cases in which counsel files a motion to withdraw as set forth in rule 18.3(a)(2), the appellate court is not obligated to search the record in support ofclaims made in a defendant's statement ofadditional grounds for review. RAP 10.10(c); see also State 

### v. Alvarado, 164 Wn.2d 556,569,192 PJd 345 (2008). This court does not consider arguments that are repetitive ofbriefing. State 

### v. Calvin, 176 Wn. App. 1,26,316PJd496 (2013), remandedon othergrounds, 183 Wn.2d lOB, 353 P.3d 640 (2015). Although DavidArch names witnesses to support his claim that he was not allowed to hire private counsel, Arch canpointto no evidence in the record to support this contention, norhis additional contention. Arch's contentions may have merit, but given their reliance on matters outside the record, they cannotberaised on direct appeal, and are more suited to a personal restraint petition. State v. McFarland, 127 Wn.2d 322, 337-38,899P.2d 1251 (1995); State v. Kinzie, 181 Wn. App. 774, 786, 326 PJd 870, 20No. 32697-7-III State v. Arch

review denied, 337 P.3d 325 (2014). Therefore, we do not address Arch's additional grounds for review. CONCLUSION We reverse and order the dismissal ofDavid Arch's conviction for attempting to elude apolice officer. We affirm Arch's conviction for driving with a license suspended in the third degree. We remand to the trial court to resentence Arch consistent with this OpInIOn. A majority ofthe 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.

# ~**Fe~}** 

# I

I CONCUR:

21No. 32697-7-111 SIDDOWAY, 

### C.l. (concurring)

- The majority characterizes this court in 

### State v. Kirwin, 166 Wn. App. 659, 271 P.3d 310 (2012) as eschewing an analysis under which the sufficiency ofevidence is tested against the court's instructions (as one would do ifa criminal defendant argued thatthe instructions were law ofthe case) and of"follow[ing]

a different approach." Opinion at 17. Butwhat we did in Kirwin was respect an appellant's right to be the master ofher own challenges on appeal. Ms. Kirwin could have raised two challenges based onthe instructions given inher case and obtained a new trial. 1 Instead, she wishedto challenge the sufficiency ofthe evidence to prove the crime with which she was charged, and thereby obtain dismissal. We respected her right to choose her own assignments oferror and arguments on appeal. I would do so in this case

as well. There is an important distinction between this case and Kirwin, however. In Kirwin, the record did notreveal that Ms. Kirwin contributed to the error in the

1In Kirwin, we observed: At the outset, we recognize that there are two well-established challenges Ms. Kirwin could raise in light ofthese events that could entitle herto a newtrial.

...Ms. Kirwin [] argues she is entitled to more than a new trial; she is entitled to have the convictions dismissed due to the insufficiency ofthe evidence. 166 Wn. App. at 669-70.No. 32697-7-III State 

### v. Arch instructions, and we held that "[w]here she has defended herselfonce againstthe crimes charged, she cannot be deprived ofherright to havethe sufficiency ofevidence tested againstthe information because she failed to detect and correcterrors made by others." 

### Id. at 673. Since Ms. Kirwin at most failed to objectto the instructions, she could not be subjected to a secondtrial where the State's evidence was insufficienttoprove the charges in an information that it never soughtto amend.2 Here, by contrast, Mr. Arch entered into a stipulation establishingthe elementthat he now contends varied from the crime as charged. Under the doctrine ofinvited error, a party may not materially contribute to an erroneous application oflaw attrial and then complain ofit on appeal. In re Dependency of K.R., 128 Wn.2d 129, 147,904 P.2d 1132 (1995). The doctrine prohibits a party from settingup an error at trial and then complaining ofit on appeal. State v. Wakefield, 130 Wn.2d 464,475,925 P.2d 183 (1996). Mr. Arch'sparticipation in stipulating that his license had been suspended elsewhere for crimes that, ifcommitted in Washington State "wouldbe grounds" for suspending orrevoking his Washington driver's license, would understandably deflect

2The majority's concern that "[l]imitingreviewtothe crime as charged could give the State an unfair advantage on appeal as it would eliminatethe requirementthat the Stateprove additional elements notpreviously chargedbeyond a reasonable doubt" is misplaced. Opinion at 18. Kirwin teaches that where the State charges one crime but offers instructions on another, more than one type oferror can be assigned. The insufficiency ofthe evidence to provethe crime on which thejurywas instructed is one. Its insufficiency to prove the crime charged, assumingthe instructions were not invited error, is another. 2No. 32697-7-111 State v. Arch

the court's and the State's attention from whetherthat element was consistent with the crime as charged. Opinion at 3. The invited error doctrine precludes a criminal defendant from seeking appellate review ofan error he helped create, even when the alleged error involves constitutional rights. State v. Studd, 137 Wn.2d 533, 546-47, 973 P.2d 1049 (1999). Because any insufficiency inthe evidence to prove the crime as charged was the result ofinvited error, 1concur in the result. 

# dzcLio**aJtt~** ·

# ~'t Siddoway, C.J.

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