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

v. CAROLYN RICHARDSON, Appellant. No. 71146-6-1 DIVISION ONE M rj~> CJ'< ^* "-I- oUNPUBLISHED OPINIONSco FILED: January 12, 2015 CT

### Appelwick, J. — Richardson appeals her conviction for felony hit and run. She argues that the jury was improperly instructed on an uncharged alternative means of committing the crime. She argues that there was insufficient evidence to conclude that 

### she knew she was in an accident. In a statement ofadditional grounds she argues that she received ineffective assistance ofcounsel. We affirm. FACTS On November 1, 2012, at roughly 7:20 a.m., T.A., a 12 yearold girl, was riding her bicycle to school. T.A. was wearing a bright red hoodie, blue jeans, and a bright red backpack that was stuffed with books. T.A. was not wearing any reflective gear nor did any of her clothing have reflective material on it. Itwas early in the morning and was "between light and dark." But, it was light enough to see without a flashlight. The surrounding streetlights were on. Itwas cloudy and rainy. T.A. was biking south on the sidewalk of Central Avenue North in Kent. As T.A. approached a point where a side street exits a park and enters Central Avenue, a truck
was attempting to turn onto Central from the side street and was blocking herpath across the sidewalk. T.A. stopped on the sidewalk before reaching the side streetto wait for the truck to make the turn. After the truck cleared the sidewalk, T.A. started pedaling again,No. 71146-6/2


### arrived at the part of the side street where cars exit the park, looked both ways, and proceeded through the intersection. 

### As T.A. was pedaling through the intersection, she saw another car approaching the intersection. T.A. saw the car stop for a few seconds before reaching the sidewalk. T.A. could see the driverenough to tellthat she was a woman. Before making the right turn onto Central, the driver looked only left, to the south on Central—the driver was not looking north at T.A. The driver then continued driving toward the sidewalk in order to make a right turn to the north on Central. The driver ofthe car hit T.A. As the cardrove away, T.A. and herbike were pulled underneath the car. T.A. felt the tire ofthe car run over her hips and her hand. When the car was running her over, T.A. screamed "stop" multiple times. Upon impact, the car rolled T.A. causing herto be faced down on the street. As the driver continued to drive, the cardragged T.A. and T.A. 

### subsequentlyfeltthe secondtire drive overherlowerback. T.A.was left lying inthe street

as the driver continued north on Central. David Nuon and Julie Binh were driving north on Central that morning. Nuon saw the carmerging into traffic off ofthe side street. Nuon saw someone moving underneath 

### the car. Nuon sawT.A. get dragged into the intersection as the car completed its merge into traffic. Nuon said the car looked like itwas driving over a speed bump as it hit T.A. After T.A. was outfrom underneath the car, the driver briefly applied the brakes butthen continued driving north on Central. Nuon and Binh stopped to assist T.A. Binh stayed with T.A., and Nuon followed the car inorderto get its license plate number. While Binh
was tending to T.A., anotherdriver called 911.No. 71146-6/3


### When Nuon followedthe car, he was driving roughly 40 or 45 miles per hour. Nuon did not honk or flash his lights at the driver. Nuon caught up withthe carin roughlythree to four minutes. He successfully obtained the license plate number and returned to the
scene ofthe accident. Atthat point the police had already arrived, and Nuon gave the license plate numberto Officer Robert Kellams. Officer Kellams retrieved the bicycle from the scene of the accident. The bike's handlebars were turned clockwise, there was damage to the reartire and the wheel, the shaftwas broken, one ofthe pedals was missing, and therewere scuffs on the gearshifts, control cables, and the seat. Officer Kellams then obtained the registered ownerinformationforthe carfrom the 

### Department of Licensing. Officer Kellams went to the address associated withthe car. 

### The registered owner of the carwas not at home, but a familymember advised Officer Kellams that her grandmother, Carolyn Richardson, had recently left to teach a fitness class at the YMCA drivingthe carinvolved in the accident. Officer Kellams contacted the registered ownerofthe car, James Ellis, Richardson's husband, and informed him of the accident. Officer Kellams traveled to the YMCA, but Richardson was notthere. Ellis had called Richardson and informed herthatthe police had contacted him about an accident. 

### Richardson became upset and left the YMCA. After speaking with Ellis, Richardson called the Kent Police Department and informed them that she would be coming in. Upon her arrival at the police station Richardson was not under arrest, but 

### voluntarily answered questions and cooperated with all requests. Richardson claimed that she was at the intersection in question and made the turn in question, but did not know that she had hit T.A. Richardson told the officers that she was at the intersection,No. 71146-6/4


### because shewas running late to a fitness class that sheteaches and cut through the park to avoid traffic. Richardson was upsetat the thoughtthat she had hit a person. Shewas very distraughtwhen she learned thatT.A. had been injured. Richardson told the officers that she thought she had hit a muffler, a hubcap, or some other road debris. Richardson told the officers that after she believed she hit road debris, she looked in the rearview mirror and did not see anything, looked behind her and did not see anything so she continued driving. Richardson was listening to the radio atthe time ofthe accident. While atthe police station, OfficerDonovan Dexheimerperformed a drug influence evaluation on Richardson. Richardson voluntarily engaged in the evaluation and performed alltests adequately. Officer Kellams photographed Richardson's car, including the undercarriage. The car had a mark at the bottom corner and a dent and a crack on the front bumper. The car had numerous scrapes underneath it and a black mark that 

### looked like itwas caused by a tire. Therewas also damagetothe muffler. Officer Kellams believed itwas fresh damage. Richardson then gave a taped statementaboutthe events ofthat morning. T.A. was taken to Harborview Medical Centerfor treatment afterthe accident. T.A. 

### sustained three fractures ofher pelvis and several fractures to her hands. T.A had tire marks on her lower back. 

### Richardson was charged with felony hitand run, RCW46.52.020(1),(4)(a), or (b). A jury found Richardson guiltyas charged. Richardson was sentencedto 45 days inKing 

### County Work/Education Release, six months of community custody, and 240 hours of community service within six months. Richardson appeals.No. 71146-6/5

DISCUSSION Richardson argues that her conviction must be reversed, because the jury was instructed on an uncharged alternative means of committing the crime of hit and run. Richardson also contends that reversal is required, because there was insufficient evidence to conclude that she knew she was involved in an accident. She also makes a 

### statementofadditional grounds and contends that she received ineffective assistance of counsel.1 I. Uncharged Alternative Means 

### Richardson argues that the jury was improperly instructed on an uncharged 

### alternative means of committing the crime of hit and run. Shehighlights the discrepancies between the information charging her with hit and run and jury instruction six. Jury instruction six says: 

### A person commits the crime ofhit and run when he or she is the driver of a vehicle and isknowingly involved in an accidentresulting ininjury 

### to any person and fails to carry out his or her obligation to fulfill all of the following duties: 

### (1) Immediately stop the vehicle at the scene of the accident or as close thereto as possible; 

### (2) Immediately return to and remain at the scene of the accident until all duties are fulfilled;



### 1Richardson asserts two additional grounds. However, her first additional ground 

### makes aninsufficiencyofthe evidence argument—thesameargument her counsel made in the second assignment of errorin Richardson's openingbrief. Richardson repeats her 

### counsel's argument. As such, wewill address Richardson'sfirst statement ofadditional 

### grounds as an assignment of error instead of a pro se statement ofadditional grounds. See RAP 10.10(a) (a pro se statement ofadditional grounds is appropriate when the defendant believes a matter has not been adequately addressed bythe brief filed by the defendant's counsel).No. 71146-6/6 (3) Give his or her name, address, insurance company, insurance policy number, and vehicle license number, and exhibit herdriver's license, to any person struck or injured or the driver or any occupant of, or any person attending, any vehicle collided with; or if none of the persons specified are in condition to receive the information and no police officer is present, immediately report the accident to the nearest office ofthe police, give her name, address, insurance company, insurance policy number, and vehicle license number, and exhibit his or her driver's license, after fulfilling all other obligations insofar as possible on her partto be performed; and (4) Render to any person injured in the accident reasonable assistance, including the carrying or making of arrangements for the 

### carrying ofsuch person to a physician or hospital for medical treatment if it is apparentthat suchtreatmentis necessary or ifsuch carrying is requested by the injured person or on his or her behalf. 

### (Emphasis added.) Richardson claims the underlined portion of the instruction is an alternative means of committing the crime of hit and run that was missing from her charging document. 

### The State contends that Richardson may not assert this argument on appeal, 

### because she herself proposed the challenged jury instruction. Under the invited error 

### doctrine, a party may not request an instruction and later complain on appeal that the 

### requested instructionwas given. State v. Henderson, 114Wn.2d 867, 870, 792 P.2d 514 (1990). Richardson proposed the juryinstruction she nowchallenges on appeal. This instructionbecamejury instruction six at trial. We decline to reviewRichardson's claim. Even ifwe were to reach the merits of Richardson's claim, her argument fails because hit and run is not an alternative means crime. An alternative means crime sets forth "distinct acts that amount to the same crime." State v. Peterson, 168 Wn.2d 763, 

### 770, 230 P.3d 588 (2010). The legislature has not statutorily defined which crimes are alternative means crimes and it is left to judicial determination, jd. at 769. Theft is an 

### example of an alternativemeans crime, because it may be committed by(1) wrongfullyNo. 71146-6/7 obtaining orexerting control overanother's propertyor(2) obtaining control overanother's property through color or aid of deception. State v. Linehan, 147 Wn.2d 638, 644-45, 647, 56 P.3d 542 (2002). Ineach alternative means ofcommitting theft, the defendant's conductvaries significantly. Peterson, 168 Wn. 2d at770. In contrast, the failure to register as a sex offender is not an alternative means 

### crime. Id. In Peterson the defendant argued that the failure to register statute is an alternative means crime, because the crime can be committed by failing to register as a 

### sex offenderafter (1) becoming homeless, (2) moving between residences inone county, 

### or (3) moving between counties, id. at 769-70. The court held that the statute did not create an alternative means crime, because an individual's conduct in each ofthe three 

### scenarios did not vary significantly. id. at 770. The statute prohibited the single act of moving without providingthe proper notice, id. 

### Similarly, the relevantportion ofthehitand run statute contemplates a single act— the failure to provideidentification to the other party after an accident has taken place. 

### RCW46.52.020(3). Adrivercan providethe identificationviadifferentmethods—directly to the party at the scene of the accident or,ifthe party is notin a condition to receive the identification, then the driver may providethe information at the nearestpolicestation, id 

### Richardsonargues that her charging document was insufficient, because itdid not provide the alternative duty to report to the police station in the event the driver cannot provide identification to the other party at the scene of the accident. But, the failure to 

### providetherequired information at the scene ofan accidentor at the closestpolicestation is one singleact—failing to provide the requisite identification. That there are different methods available to a driver ofpresenting identification after an accidentdoes not makeNo. 71146-6/8


### hit and run an alternative means crime. Therefore, the trial court did not instruct the jury
on an alternative means of committing the crime that was not included in Richardson's charging document. This was not instructional error. II. Sufficiency ofthe Evidence Richardson argues thatthere was insufficientevidence attrial to concludethatshe knew she was involved in an accident. Richardson argues the State was tasked with proving that she knew that she had been involved in an accident as opposed to hitting road debris as she contends. RCW46.52.020(1) provides: A driver of any vehicle involved in an accident resulting in the injury to or death of any person or involving striking the body of a deceased person 

### shall immediately stop such vehicle at the scene of such accident or as close thereto as possible but shall then forthwith return to, and in every event remain at, the scene of such accident until he or she has fulfilled the 

### requirements of subsection (3) of this section; every such stop shall be made without obstructing traffic more than is necessary. 

### (Emphasis added.) To convict a person of felony hit and run, the State must also prove beyond a reasonable doubt that the defendant knew she was involved in an accident. State v. Perebevnos. 121 Wn. App. 189, 192, 87 P.3d 1216 (2004). A person acts with knowledge when: 

### (i) he or she is aware of a fact, facts, or circumstance or result described by a statute defining an offense; or 

### (ii) he or she has information which would lead a reasonable man in the same situation to believe that facts exists which facts are described by a statute defining an offense. RCW9A.08.010(1)(b).No. 71146-6/9


### An appellate court reviews a challenge to the sufficiency of the evidence by determining whether, after viewing the evidence inthe light most favorable to the State, any rational trier offact could have found the essential elements ofthe crime beyond a reasonable doubt. State v. Green. 94 Wn.2d 216, 221, 616 P.2d 628 (1980). Indetermining the sufficiency ofthe evidence, circumstantial evidence is notto be considered any less reliablethan directevidence. Statev. Delmarter, 94 Wn.2d 634, 638, 618 P.2d 99 (1980). Knowledge may be inferred from circumstantial evidence. Perebevnos, 121 Wn. App. at 196. Ifinformation is sufficient to cause a reasonable 

### person inthe same situation to believethata fact exists, thetrier of fact may inferthatthe 

### defendant had knowledge, id Anappellate court will deferto the trier of fact to resolve conflicts intestimony, weigh evidence, and draw reasonable inferences, id 

### Richardson argues that the evidence taken in a light most favorable to the State does not supportthe conclusion that Richardson knew that she had been involved in an accident. Richardson supports this assertion by arguing thatitwas dark and raining, that 

### T.A. was not wearing reflective clothing, and that T.A. looked both ways before turning and did notsee Richardson coming. Richardson also asserts that she looked back after 

### feeling a bump and did notsee anything. However, there is conflicting evidence in the record that supports the opposite conclusion—that Richardson, or a reasonable person inthe same situation, would have had knowledge ofan accident. First, witnesses testified that itwas not as dark or raining as hard as Richardson claimed at the time of the accident. Richardson testified that itwas dark, pouring down 

### rain, and that she was using her windshield wipers on maximumspeed. But, Julie Binh described itas "a little bit dark" and "sprinkling" at the time. David Nuon also describedNo. 71146-6/10 sprinkling and said that itwas cloudy out. T.A. testified that itwas sprinklingjust a little. T.A. testified that it was "between light and dark" and that it was light enough to see everything. Officer Kellams testified that by the time he arrived atthe accident scene, he did not need a flashlight to see anything. In addition to bolstering the State's assertions that visibility was sufficient that morning, the conflicting testimony of these several witnesses likely undercut Richardson's credibility with thejury. 

### Moreover, in light of this testimony suggesting reasonable visibility on the day of the accident, a reasonable trieroffact could concludethatT.A. was readily visible despite 

### her lack of reflective clothing. While it istrue thatT.A.was notwearing reflective clothing at the time of the accident, shewaswearing a bright red hoodie and a bright red backpack stuffed with books. 

### Finally, T.A.'s experience, the damages to T.A.'s bike, and other testimony about the accident suggestthat Richardson would have heard or felt more than a bump that a driver might attribute to a muffler, a pothole, or other road debris. T.A.'s bicycle was heavily damaged. Similarly, there was damage to Richardson's car that Officer Kellams implied was caused by the bike. Additionally, T.A. testified that shefelt both tires run her
over. Nuon testified that he saw Richardson's car bouncing as if it had driven over a speedbump. 

### There is sufficientevidence inthe recordfor a jury to inferthata reasonable person under the same circumstances as Richardson would have known that she was involved in an accident. A rational trier offact could have found that Richardson had the requisite 

### knowledge to be convicted of a hit and run beyond a reasonable doubt.

10No. 71146-6/11

III. Ineffective Assistance of Counsel In her statement of additional grounds, Richardson argues that she received ineffective assistance of counsel. To prevail on a claim of ineffective assistance, a defendant must show that (1) counsel's performance was deficient and (2) the deficient performance prejudiced the trial. Strickland v. Washington, 466 U.S. 668, 687,104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). The first prong ofthe Strickland test requires a showing that counsel's representation fell below an objective standard of reasonableness based

on consideration of all the circumstances. State v. Thomas, 109 Wn.2d 222, 226, 743 

### P.2d 816 (1987). The second prong requires thedefendantto showthere is a reasonable 

### probability that, but forcounsel's conduct of errors, the results of the proceeding would have been different. Jd There is a strong presumption of effective assistance. In re Pet, of Moore, 167 Wn. 2d 113, 122, 216P.3d 1015(2009). Ifdefense counsel's trialconduct 

### can be characterized as legitimatetrial strategy or tactics, then itcannot serve as a basis for a claim that the defendant did not receive effective assistance of counsel. State v. Lord, 117 Wn.2d 829, 883, 822 P.2d 177 (1991). 

### First, Richardson asserts that her attorney should have presented a different 

### theory of the accident per theirpretrial agreed strategy. She contends that theiroriginal strategy was to present the view of the accident thatT.A. collided with only Richardson's back passenger tire and that is why Richardson did not see her and know about the accident. This court will not find ineffective assistance of counsel if the actions a 

### defendant complains about go to the theory of the case. State v.Varga. 151 Wn.2d 179, 199, 86 P.3d 139 (2004). Further, it was reasonable for Richardson's counsel to stray 

### from thistheory, because evidencein therecord directly contradicts it. T.A. testified that

11No. 71146-6/12


### shewas run over bytwo tires. Otherwitnessestestified thatT.A. was trapped underneath 

### Richardson's car and dragged. Itwas reasonablefor Richardson's counsel to be waryof the back tire theory because it is inconsistent with the other witness accounts. As counsel's actions go to the theory of the case, Richardson did not receive ineffective assistance ofcounsel. 

### Richardson claims that her attorney should have called the accident investigator from her insurance company to testify instead of the less experienced accident reconstructionist, Mark Chapman. Ordinarily, the decision whetherto call a witness is a matter of legitimate trial tactics and will not support a claim of ineffective assistance of counsel. State v. Maurice, 79 Wn. App. 544, 552, 903 P.2d 514 (1995). Here, Richardson has provided no facts showing that her counsel should have selected the insurance investigatorinstead ofthe accident reconstructionist, that counsel had any reasonto believethatChapman was incompetent, orthatChapman's credentials

were deficient. See In re Pers. Restraint of Pavis, 152 Wn. 2d 647, 733, 101 P.3d 1, 47 (2004) (counsel's expert witness selection not deficient when counsel had no reason to believe the experts were incompetent or that credentials ofthe experts were deficient in any manner). That Chapman was "less experienced" does not necessarily make him deficient. Itwas not unreasonable for Richardson's counsel to electto choose an accident reconstructionist instead ofan insurance investigatorto testify as to what likelyhappened when Richardson hit T.A. Counsel's decision to use Chapman was a legitimate tactical decision.

12No. 71146-6/13 

### Additionally, Richardson contends her attorney should have presented a picture of hersteepdriveway toaccountfor the damageto the undercarriageof her car. Richardson wanted this evidence admitted to prove thatthe scrapes were not from the accidentwith 

### T.A. Richardson's counsel cross-examined Officer Kellams about the scrapes on the bottom ofRichardson's carduring trial. Officer Kellams admitted that he had neverseen the undercarriage ofthe car before the accident and that many ofthe marks were from 

### before the incident. As such, a picture of Richardson's driveway would have been cumulative to make the point that the undercarriage of the car had prior damage. See State v. Peyton. 29 Wn. App. 701, 718, 630 P.2d 1362 (1981) (reasoning no ineffective assistance when testimony would have been cumulative). Presenting a picture of the driveway could have afforded the Statethe opportunityto argue that some ofthe scrapes
were definitively not from the driveway and were instead from the accident. Richardson fails to show that counsel's decision not to present the photo was not a legitimate trial tactic. Similarly, Richardson contends that her attorney should have called the previous
owner of her vehicle or her husband as witnesses to testify to the fact that there was existing damage to her vehicle. The officer testified that many of the marks on the undercarriage were from before the accident, potentially making their testimony unnecessary. And, there is no suggestion that they had knowledge allowing them to 

### contradictthe testimonythat some ofthe damage to the bottom ofthe vehiclewas "fresh" and that one ofthe marks was a tire mark. Itwas reasonable for Richardson's attorney to decide not to present contradictory witness testimony that might have undercut

13No. 71146-6/14


### Richardson's credibility, particularly when the vehicle damage was not completely determinative as to whether Richardson knew she was involved in an accident. Richardson's counsel objected when a witness insinuated that Richardson was
aware she had hit T.A. Counsel objected based on speculation when Nuon said that Richardson was panicking as she was driving away from the scene of the accident. 

### However, Richardson argues that her attorney did not adequately challenge several of the prosecutor's witnesses when they contended Richardson was aware an accidenttook 

### place. This assertion lacks the required specificity for our review. See RAP 10.10(c) 

### ("[T]he appellate court is not obligated to search the record insupport ofclaims made in


### a defendant/appellant's statementof additional grounds forreview."); State v. O'Connor, 

### 155 Wn. App. 282, 29394, 229 P.3d 880 (2010) (declining to review statement of 

### additional grounds where appellant did not explain the underlying facts for hisclaims). 

### Finally, Richardson claims that her attorneymaking references to her as a "hurried poordriver" and references to her as being "guilty" of notknowing about the accidentin 

### closing argument undermined her. We are unable to find "several" references in the record of this nature. At one point,defense counsel argues that justbecause Richardson 

### was negligentdoes not make herguilty of a crime. Insofaras a statementlikethisforms the basisforRichardson's challenge, itwas a legitimatetrial strategyfordefense counsel 

### to highlight for the jurors that they could find Richardson's actions careless and reprehensible and yet still find her innocent of the crime of hit and run. Richardsonfails to showthat counsel's closing arguments were not a legitimate trial tactic.

14No. 71146-6/15
The trial court did not err in presenting instruction six to the jury. There was sufficient evidence to conclude that Richardson knew she was involved in an accident. Richardson has not demonstrated that she received ineffective assistance ofcounsel. We affirm.

WE CONCUR: 

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