IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON,

Respondent,

v.

CAROLYN RICHARDSON,

Appellant.

No. 71146-6-1

DIVISION ONE

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"-I- oUNPUBLISHED OPINIONSco

FILED: January 12, 2015 CTAppelwick, 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 of additional grounds she argues that

she received ineffective assistance of counsel. We affirm.

FACTS

On November 1, 2012, at roughly 7:20 a.m., T.A., a 12 year old 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. It was 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. It was 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 her path across

the sidewalk. T.A. stopped on the sidewalk before reaching the side street to 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 driver enough to tell that 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 of the car hit T.A.

As the car drove away, T.A. and her bike were pulled underneath the car. T.A. felt

the tire of the 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 her to be

faced down on the street. As the driver continued to drive, the car dragged T.A. and T.A.

subsequently felt the second tire drive over her lower back. T.A. was left lying in the street

as the driver continued north on Central.

David Nuon and Julie Binh were driving north on Central that morning. Nuon saw

the car merging into traffic off of the side street. Nuon saw someone moving underneath

the car. Nuon saw T.A. get dragged into the intersection as the car completed its merge

into traffic. Nuon said the car looked like it was driving over a speed bump as it hit T.A.

After T.A. was out from underneath the car, the driver briefly applied the brakes but then

continued driving north on Central. Nuon and Binh stopped to assist T.A. Binh stayed

with T.A., and Nuon followed the car in order to get its license plate number. While Binh

was tending to T.A., another driver called 911.
No. 71146-6/3

When Nuon followed the 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 with the car in roughly three

to four minutes. He successfully obtained the license plate number and returned to the

scene of the accident. At that point the police had already arrived, and Nuon gave the

license plate number to 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 rear tire and the wheel, the

shaft was broken, one of the pedals was missing, and there were scuffs on the gearshifts,

control cables, and the seat.

Officer Kellams then obtained the registered owner information for the car from the

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

The registered owner of the car was not at home, but a family member advised Officer

Kellams that her grandmother, Carolyn Richardson, had recently left to teach a fitness

class at the YMCA driving the car involved in the accident. Officer Kellams contacted the

registered owner of the car, James Ellis, Richardson's husband, and informed him of the

accident. Officer Kellams traveled to the YMCA, but Richardson was not there. Ellis had

called Richardson and informed her that the 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 she was running late to a fitness class that she teaches and cut through the park

to avoid traffic. Richardson was upset at the thought that she had hit a person. She was

very distraught when she learned that T.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 at the time of the accident.

While at the police station, Officer Donovan Dexheimer performed a drug influence

evaluation on Richardson. Richardson voluntarily engaged in the evaluation and

performed all tests 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. There was also damage to the muffler. Officer Kellams

believed itwas fresh damage. Richardson then gave a taped statement about the events

of that morning.

T.A. was taken to Harborview Medical Center for treatment after the accident. T.A.

sustained three fractures of her pelvis and several fractures to her hands. T.A had tire

marks on her lower back.

Richardson was charged with felony hit and run, RCW 46.52.020(1 ),(4)(a), or (b).

A jury found Richardson guilty as charged. Richardson was sentenced to 45 days in King

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

statement of additional 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. She highlights the discrepancies

between the information charging her with hit and run and jury instruction six. Jury

instruction six says:

A person commits the crime of hit and run when he or she is the

driver of a vehicle and is knowingly involved in an accident resulting in injury

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 an insufficiency ofthe evidence argument—the same argument her counsel made

in the second assignment of error in Richardson's opening brief. Richardson repeats her

counsel's argument. As such, we will address Richardson'sfirst statement of additional

grounds as an assignment of error instead of a pro se statement of additional grounds.

See RAP 10.10(a) (a pro se statement of additional grounds is appropriate when the

defendant believes a matter has not been adequately addressed by the 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 her driver'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 of the 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 part to be performed; and

(4) Render to any person injured in the accident reasonable

assistance, including the carrying or making of arrangements for the

carrying of such person to a physician or hospital for medical treatment if it

is apparent that such treatment is 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 instruction was given. State v. Henderson, 114Wn.2d 867, 870, 792 P.2d 514

(1990). Richardson proposed the jury instruction she now challenges on appeal. This

instruction became jury instruction six at trial. We decline to review Richardson's claim.

Even if we 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 alternative means crime, because it may be committed by (1) wrongfully
No. 71146-6/7

obtaining or exerting control over another's property or (2) obtaining control over another's

property through color or aid of deception. State v. Linehan, 147 Wn.2d 638, 644-45,

647, 56 P.3d 542 (2002). In each alternative means of committing theft, the defendant's

conduct varies significantly. Peterson, 168 Wn. 2d at 770.

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 offender after (1) becoming homeless, (2) moving between residences in one 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 of the three

scenarios did not vary significantly. id. at 770. The statute prohibited the single act of

moving without providing the proper notice, id.

Similarly, the relevant portion ofthe hit and run statute contemplates a single act—

the failure to provide identification to the other party after an accident has taken place.

RCW 46.52.020(3). Adriver can provide the identification via different methods—directly

to the party at the scene of the accident or, if the party is not in a condition to receive the

identification, then the driver may providethe information at the nearest policestation, id

Richardson argues 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

provide the required information at the scene ofan accidentor at the closest police station

is one single act—failing to provide the requisite identification. That there are different

methods available to a driver of presenting identification after an accident does not make
No. 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 of the Evidence

Richardson argues that there was insufficient evidence at trial to conclude that she

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.

RCW 46.52.020(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 in the light most favorable to the State,

any rational trier of fact could have found the essential elements of the crime beyond a

reasonable doubt. State v. Green. 94 Wn.2d 216, 221, 616 P.2d 628 (1980).

In determining the sufficiency of the evidence, circumstantial evidence is not to be

considered any less reliable than direct evidence. State v. Delmarter, 94 Wn.2d 634, 638,

618 P.2d 99 (1980). Knowledge may be inferred from circumstantial evidence.

Perebevnos, 121 Wn. App. at 196. If information is sufficient to cause a reasonable

person in the same situation to believe that a fact exists, the trier of fact may infer that the

defendant had knowledge, id An appellate court will defer to the trier of fact to resolve

conflicts in testimony, weigh evidence, and draw reasonable inferences, id

Richardson argues that the evidence taken in a light most favorable to the State

does not support the conclusion that Richardson knew that she had been involved in an

accident. Richardson supports this assertion by arguing that itwas dark and raining, that

T.A. was not wearing reflective clothing, and that T.A. looked both ways before turning

and did not see Richardson coming. Richardson also asserts that she looked back after

feeling a bump and did not see anything. However, there is conflicting evidence in the

record that supports the opposite conclusion—that Richardson, or a reasonable person

in the same situation, would have had knowledge of an accident.

First, witnesses testified that it was not as dark or raining as hard as Richardson

claimed at the time of the accident. Richardson testified that it was dark, pouring down

rain, and that she was using her windshield wipers on maximum speed. But, Julie Binh

described it as "a little bit dark" and "sprinkling" at the time. David Nuon also described
No. 71146-6/10

sprinkling and said that it was cloudy out. T.A. testified that it was sprinkling just 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 at the 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 the jury.

Moreover, in light of this testimony suggesting reasonable visibility on the day of

the accident, a reasonable trier of fact could conclude that T.A. was readily visible despite

her lack of reflective clothing. While it is true that T.A. was not wearing reflective clothing

at the time of the accident, she was wearing 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 suggest that 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 she felt both tires run her

over. Nuon testified that he saw Richardson's car bouncing as if it had driven over a

speedbump.

There is sufficient evidence in the record for a jury to infer that a reasonable person

under the same circumstances as Richardson would have known that she was involved

in an accident. A rational trier of fact could have found that Richardson had the requisite

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

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No. 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 of the 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 the defendant to show there is a reasonable

probability that, but for counsel'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 trial conduct

can be characterized as legitimate trial 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 their pretrial agreed strategy. She contends that their original

strategy was to present the view of the accident that T.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 evidence in the record directly contradicts it. T.A. testified that

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No. 71146-6/12

she was run over bytwo tires. Other witnesses testified that T.A. was trapped underneath

Richardson's car and dragged. It was reasonable for 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 of counsel.

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 whether to 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 investigator instead of the accident reconstructionist, that counsel

had any reason to believe that Chapman was incompetent, or that Chapman'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 of the experts were deficient in

any manner). That Chapman was "less experienced" does not necessarily make him

deficient. It was not unreasonable for Richardson's counsel to elect to choose an accident

reconstructionist instead of an insurance investigator to testify as to what likely happened

when Richardson hit T.A. Counsel's decision to use Chapman was a legitimate tactical

decision.

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No. 71146-6/13

Additionally, Richardson contends her attorney should have presented a picture of

her steep driveway to account for the damage to the undercarriage of her car. Richardson

wanted this evidence admitted to prove that the scrapes were not from the accident with

T.A. Richardson's counsel cross-examined Officer Kellams about the scrapes on the

bottom of Richardson's car during trial. Officer Kellams admitted that he had never seen

the undercarriage of the car before the accident and that many of the 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 State the opportunity to argue that some of the 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

contradict the testimony that some of the damage to the bottom of the vehicle was "fresh"

and that one of the marks was a tire mark. It was reasonable for Richardson's attorney

to decide not to present contradictory witness testimony that might have undercut

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No. 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 accident took

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 in support of claims made in

a defendant/appellant's statement of additional grounds for review."); 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 his claims).

Finally, Richardson claims that her attorney making references to her as a "hurried

poor driver" and references to her as being "guilty" of not knowing about the accident in

closing argument undermined her. We are unable to find "several" references in the

record of this nature. At one point, defense counsel argues that just because Richardson

was negligent does not make her guilty of a crime. Insofar as a statement like thisforms

the basis for Richardson's challenge, itwas a legitimate trial strategy for defense 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. Richardson fails

to show that counsel's closing arguments were not a legitimate trial tactic.

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No. 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 of counsel.

We affirm.

WE CONCUR:

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