### FILED NOVEMBER 16, 2017 In the Office ofthe Clerk ofCourt WA State Court ofAppeals, Division Ill

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE STATE OF WASHINGTON, ) ) Respondent, ) ) V. ) ) BENJAMIN GORDON SWOFFORD JR., ) ) Appellant. ) No. 34745-1-111

UNPUBLISHED OPINION

KORSMO, J.

- Benjamin Swofford, Jr., raises several challenges to his conviction for attempting to elude, including an argumentthat the trial court wrongly denied him a necessity defense. He was not entitledto present a necessity defense underthe facts of this case, so we affirm. FACTS The incidentthat led Spokane authorities to file the eluding charge occurred late in the evening ofDecember 6, 2015. An officer spotted Mr. Swofford's minivan inHigh Bridge Park, travelling 50 to 55 miles perhour on a small gravel road during inclement weather. Asthe officer attemptedto catchup, Mr. Swoffordresponded by driving around avan stopped at a stop sign at the comerofA Street and Riverside Avenue and intothe intersection without stopping. Hethen accelerated away at a high rate ofspeed.

### No. 34745-1-111 State v. Swofford
The officer activated his emergency lights and beganpursuing Swofford. When he caughtup to Swofford'svehicle, the officerturned on his siren. The siren remained

on for the remainder ofthe pursuit, except for moments when it was deactivatedto allow the officerto speak with dispatch. When the officer got close to the vehicle to attemptto ascertain its license plate, Mr. Swoffordwould hitthe brakes and then accelerate away while the officer was slowing. The pursuit continued onto Government Way. Mr. Swofford drove on both sides ofthe street. He turned onto Fort George WrightDrive, driving past Spokane Falls Community College. He continued his tactic ofhitting the brakes and then accelerating. He also usedboth sides ofthe four lane road, forcing traffic to pull over and stop as he swerved back and forth. Police ahead ofthe pursuitplaced spike strips on the T.J. Meenach Bridge and made one southbound motoristpull overto avoid the spike stripes. Swofford hit the spike strip without slowing down and continued to drive northbound up a hill despite puncturedtires. An officer estimated his speed at 60 miles perhour in the 30 mile per hour zone. The minivan started slowing due to three puncturedtires and the pursuing officer caught up. The officer struck the minivan with his car, forcing it to stop. The police tookMr. Swofford, the sole occupant ofthe minivan, into custody. He made several comments during this period, including requesting the police call his

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mother to tell her that he had "f---ed up" and to notify his girlfriend that he "f---edher car up." Theprosecution filed one count ofattempting to elude and an accompanying endangerment enhancement. The case proceededtojurytrial. The defense indicated an intent to pursue a common law necessity defense. To that end, the defense made an offer ofproofthat Mr. Swofford was hurrying back home because he had received wordthat his stepdaughterhad overdosed on drugs and no emergency aid hadyet arrived. Since he had the only available vehicle, he was hurrying to her aid and was unaware ofthe police officer chasing him. The trial court declined to allow the defense or supporting testimony, determining that necessity was not an available defense and that the testimony was not relevant to any issue before thejury. The defense thereafter did not submit anyjury instructions, but did adopt as its own the prosecutor's proposed instruction concerning the defendant's decision not to testify. The defense argued the case to thejury on a theory that it was a dark and foggy night and there was no indication that Mr. Swofford knew the police were pursuing him. Thejury, however, found Mr. Swofford guilty and also returned a special verdict indicating that others had been endangered by the driving. The court imposed atop end enhanced sentence for the crime. The court also noted that no community custody could be imposed. It added a null mark, 0, to the line indicating that 12 months ofcommunity 3 

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### tNo. 34745-1-111 State v. Swofford custody was being imposed. Mr. Swofford then timely appealed to this court. A panel considered the matter without hearing argument. ANALYSIS Mr. Swofford challenges the trial court's denial ofhis necessity defense, presents a claim that his counsel rendered ineffective assistance by failing to offer an instruction on willfulness, and contends that the evidence did not supportthe verdict orthe special enhancement. He also argues, and the State agrees, that the court imposed aterm of community custody by adding the 0 mark. We address those contentions in the order noted. NecessityDefense Mr. Swofford contends that his proposed testimony was admissible for several

reasons andjustified instructing thejury on necessity. We agree with the trial court's conclusion that the testimony was not admissible. Trial courtjudges have great discretion with respect to the admission ofevidence and will be overturned only for manifest abuse ofthat discretion. State v. Luvene, 127 Wn.2d 690, 706-707, 903 P.2d 960 (1995). Discretion is abused where it is exercised on untenable grounds or for untenable reasons. State ex rel. Carrollv. Junker, 79 Wn.2d 12, 26, 482 P.2d 775 (1971). Evidence is relevant ifit makes "the existence ofany fact that is ofconsequence to the determination ofthe action more probable or less probable." ER 401. Relevant evidence is generally admissible at trial, but can be excluded where its 4No. 34745-1-III State v. Swofford
value is outweighed by other considerations such as misleading thejury orwasting time. ER402; ER403. The crime ofattempting to elude a pursingpolice officer is committed when a driver "willfully fails or refuses to immediately bring his or hervehicle to a stop and who drives his or her vehicle in a reckless manner[ll while attempting to elude a pursuing police vehicle, afterbeing given a visual or audible signal to bring the vehicle to a stop." RCW46.61.024(1). The statute also provides an affirmative defense: Itis an affirmative defense to this section which must be established by a preponderance ofthe evidence that: (a) A reasonable person would not believe that the signal to stop was given by apolice officer; and (b) driving afterthe signal to stop was reasonable underthe circumstances. RCW 46.61.024(2). The defense ofnecessity is recognized by Washington common law. That defense

excuses criminal conduct whenpressure brought on "by forces ofnature" leads to a criminal act that avoids a greaterharm. State v. Gallegos, 73 Wn. App. 644, 651, 871 P.2d 621 (1994); State v. Turner, 42 Wn. App. 242,247, 711 P.2d 353 (1985); State v. Diana, 24 Wn. App. 908,604 P.2d 1312 (1979). Citing to the Model Penal Code, this court concluded in Diana that the defense would be available whenthe defendant

1 "Reckless manner" is a term ofart within the traffic code. See RCW 46.61.520 (vehicular homicide); RCW46.61.522 (vehicular assault). Itmeans to operate a vehicle in a "rash or heedless manner, indifferentto the consequences." State v. Roggenkamp, 153 Wn.2d 614,631, 106 P.3d 196 (2005). 5No. 34745-1-111 State v. Swofford
established that due to outside circumstances not ofher own causing she committed an illegal act in orderto avoid a greaterharm. 24 Wn. App. at 913-914. The common law defense is unavailable when the legislature has provided a statutory defense. Id. The elements ofthe defense are memorialized in WPIC 18.02. Itprovides: (1) the defendant reasonably believed the commission ofthe crime was necessary to avoid or minimize a harm; and (2) harm sought to be avoided was greaterthanthe harm resulting from a violation ofthe law; and (3) the threatened harm was not brought about by the defendant; and (4) no reasonable legal alternative existed. 11 WASHINGTON PRACTICE: WASHINGTON PATTERN JURY INSTRUCTIONS: CRIMINAL 18.02, at 292 (4th ed. 2016). Against this backdrop, we turn to Mr. Swofford'stwo specific arguments. He first claims that evidence ofhis "state ofmind" was relevant to rebut the willfullness element ofthe eluding statute. Theproblem with this argument, however, is thathe expressly eschewed a diminished capacity defense at trial. He also had no expertto testify thathe suffered from a mental disease or defect that affected his behaviorto act willfully.2 State

v. Stumpf, 64 Wn. App. 522, 524-526, 827 P.2d 294 (1992). "State ofmind" testimony

was notrelevant absent sufficient evidence that he lacked the ability to form the requisite mental state. Id. Here, there was no testimony that wouldpermit the evidence.

2 This approach also was inconsistent with the theory thathe was acting out of necessity-i.e., his behaviorwas willful, butjustified. 6 

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Mr. Swofford also argues that the testimony about his stepdaughter's condition

was relevantto establish the statutory defense. However, it was not. The statutory defense requiredproofthatthe driver did notbelieve thatthe signal to stop was being given by a police officer and thathe drove in a reasonable mannerthereafter. While Mr. Swoffordwas permittedto testify aboutthose elements, he did not attemptto do so. His stepdaughter's drug overdose had no bearing onwhetherhe did notbelieve the signal to stop came from someone who was not a peace officer, so it was irrelevantto that discussion. Finally, although he does not reprise his trial court argumentthatthe common law necessity defense was available to him, we will note that it was not. Even ifthat defense survivedthe creation ofthe statutory defense, a question we are not asked to answer in this appeal, it simply did not apply to the facts ofthis case. We havepreviously concluded thatthe necessity defense did not apply when a defendant claimedhe was eludingpolice to race to the aid ofa friend. See Gallegos, 73 Wn. App. at 650-651 (friend's need ofaid was not "forces ofnature" thatwould support necessity defense). It also is not reasonable to flee from someone who couldprovide the very aid that Mr. Swofford claimedhe needed to provide. A reasonableperson in his shoes would have immediately stopped his car and told the officer aboutthe circumstance, ratherthan continue dangerous behaviorthreatening others onthe road. Giventhe existence ofthis

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## i \No. 34745-1-111 State v. Swofford legal alternative, the continued flight precluded a necessity defense. WPIC 18.02(4) (defense only available if"noreasonable legal alternative existed"). For all ofthese reasons, the "state ofmind" evidence was irrelevant. 

### It did not support a diminished capacity defense, nor did it support any defense to the eluding charge. IneffectiveAssistance of Counsel Mr. Swofford also argues thathis attorney rendered ineffective assistance by failing to propose an instruction on "willfully." He has not establishedthathis counsel erred, let along that he was harmed by this omission. The failure to request ajury instruction typically precludes review ofthe court's failure to give the instruction. State v. Scott, 110 Wn.2d 682, 689-691, 757 P.2d 492 (1988). Thus, Mr. Swofford recasts this issue as a failure ofhis attorney to provide effective assistance underthe Sixth Amendment's guaranty ofcounsel. Counsel's failure to live up to the standards ofthe profession will require a newtrial when the client has been prejudiced by counsel's failure. State v. McFarland, 127 Wn.2d 322, 334-335, 899 P.2d 1251 (1995). In evaluating ineffectiveness claims, courts must be highly deferential to counsel's decisions. A strategic ortactical decision is not a basis for finding error. Stricklandv. Washington, 466 U.S. 668, 689-691, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). Under Strickland, courts apply a two-prong test: whether or not (1) counsel's performance failed to meet a standard ofreasonableness and (2) actualprejudiceresulted 8 

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### State v. 

### Swofford
from counsel's failures. 

### Id. at 690-692. When a claim canbe resolved on one ground, a reviewing court need not consider both

### Stricklandprongs. 

### Id. at 697; 

### State v. 

### Foster, 140 Wn. App. 266,273, 166 P.3d 726, 

### review denied, 162 Wn.2d 1007 (2007). Long-standing principles govern ourreview of jury instruction questions. Trial courts have an obligationto provide instructions that correctly statethe law, are not misleading, and allowthe parties to argue theirrespectivetheories ofthe case. 

### State v. 

### Dana, 73 Wn.2d 533, 536-537, 439 P.2d 403 (1968). The instructions must set forth the elements ofthe crimes that are before thejury. 

### State v. 

### Allen, 101 Wn.2d 355, 358, 678 P.2d 798 (1984). There is no need to define those elements that are commonly understood. 

### Id. However, whenthe elements have technical definitions, the definitional instruction must be given when requested. 

### Id. at 358, 361-362. The failure to request an instruction, or to challenge the trial court's failure to give a requested instruction, waives the issue on appeal. 

### Scott, 110 Wn.2d at 686; RAP 2.5(a). 3 Critical to this case is 

### State v. 

### Flora, 160 Wn. App. 549, 249 P.3d 188 (2011). There Division One ofthis court ruled that, upon request, a trial courtmust define the term "willfully" in an attempt to elude prosecution. 

### Id. at 553. However, as previously noted, any direct challenge by Mr. Swofford to the trial court's failure to define

3 Certain limited instructional errors, largely involving the elements or burden of proofinstructions, do present issues ofmanifest constitutional errorthat canbe reviewed on appeal. 

### State v. 

### O'Hara, 167 Wn.2d 91, 100-101, 217 P.3d 756 (2009). 9 

# INo. 34745-1-111 State v. Swofford "willfully" would fail underScottbecause there was no challenge to the absence ofthe instruction. Technical term definitions are not so fundamental that a court must give them in the absence ofa request. Allen, 101 Wn.2d at 358. Having not challenged the absence ofthe willfulness instruction in the trial court, Mr. Swofford cannot do so here. Scott, 110 Wn.2d at 686. Thus, he must show boththat his counsel erred in not seeking the instruction and that his defense was harmed by its absence. Since it is not a required instruction, we do notbelieve that counsel erredby failing to propose an instruction on willfullness. It also does not appear to have been necessary given the defense offactual ignorance about the pursuing officer. In addition, it may well have worked to the detriment ofthe defense to have used the instruction. Defense attorneys often will decide notto propose definitionaljury instructions because they assume the common understanding ofa term will be in their client's favor. State v. Pottorff, 138 Wn. App. 343, 349-350, 156 P.3d 955 (2007). "Attemptingto elude" does not require that the prosecutionprove intentto elude, but there canbe no attempt to elude unless the driver knows thathe is being signaledto stop. Flora, 160 Wn. App. at 555. The term "willfully" has more than one possible definition. At common law, it

was often used to denote a standard higher than knowledge. In re Estate of Kissinger, 142 Wn. App. 76, 80-81, 173 P.3d 956 (2007). The eluding statute, on the other hand, equates willfulness with knowledge. Flora, 160 Wn. App. at 553. The thesis ofMr. Swofford's closing argument was that "we don'tknow ifMr. Swofford saw the signal to 10No. 34745-1-111 State v. Swofford stop. We don'tknow ifhe willfully failed to do that." This phrasing indicates that defense counsel was implying "willfully failed" meant intentto elude, not merely knowledge ofa signalingpolice officer. Accordingly, this court cannot necessarily conclude the attorney's decision was not a legitimate trial tactic and therefore the failure to request the instruction was not deficient performance. Mr. Swofford also cannot show that his defense was harmed by the absence ofthe instruction. He argued that he did not know that the officerwas behind him. How an instruction equating knowledge with willfulness would have been helpful in that context is unclear. He was better offifthejurybelieved willfulness equated with intent or some other mental state than mere knowledge. The instruction would not have been helpful. Mr. Swofford has failed to establish eitherthathis counsel erred orthathe was harmed by the alleged error. Since he needed to do both, his claim ofineffective assistance is without merit. Sufficiency of the Evidence Mr. Swofford also argues that the evidence did not support eitherthe eluding charge orthe endangerment enhancement. Properly viewed, the evidence supported both. The standards governing review ofthis issue are well understood. The reviewing court does not weigh evidence or sift through competing testimony. Instead, the question presented is whether there is sufficient evidence to support the determinationthat each element ofthe crime was proved beyond a reasonable doubt. Jackson v. Virginia, 443 11 

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U.S. 307,319, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979); 

### State v. 

### Green, 94 Wn.2d 216, 221, 616 P.2d 628 (1980). The reviewing court will considerthe evidence in a light most favorable to the prosecution. 

### Green, 94 Wn.2d at 221. Reviewing courts also must defer to the trier offact "onissues ofconflictingtestimony, credibility ofwitnesses, and the persuasiveness ofthe evidence." 

### State v. Thomas, 150 Wn.2d 821, 874-875, 83 P.3d 970 (2004). With respect to the eluding charge, Mr. Swofford argues thatthe evidence did not supportthe determination thathe willfully failed to stop, pointing to the lack ofany direct evidence that he saw or heard the officerbehind him. The circumstantial evidence ofhis driving behavior allowed thejuryto inferthat he knew that the officerwas behindhim and willfully drove to elude the pursuer. An officerwho viewed the defendant's vehicle noted that while there was equipment in the back, the driver's view to the rear was not obstructed. In the course of the chase, Mr. Swofford used the oncomingtraffic lanes and swerved back and forth between his lane and that one for no apparent reason other than to preventthe officer from seeing his license plate. When the officer did get close, Swofford'svehicle would brake, forcing the pursuerto slow down and allowing Swoffordto speed away. He then drove through the spike strip at high speed and continued up the hill with deflated and deflating tires at 60 miles per hour, nearly double the posted speed limit. When he was

12No. 34745-1-III State v. Swofford apprehended, his first words were thathe had "f---edup." It is difficult to believe thathe would admit fault for doing something he did not know he was doing. While certainly other explanations for his behaviorwere possible, the test for sufficiency ofevidence does not require exclusion ofcompetingpossibilities. The purposeful, evasive driving allowedthejuryto inferthathe was willfully refusing to stop for the officer behind him. Ergo, it was sufficientto support thejury'sverdict. The enhancement charged in Mr. Swofford's case required proofthat, as a result ofhis driving, "one or more persons, other than the defendant orthe pursuing law enforcement officer, were threatened withphysical injury orharm." Clerk's Papers at 6. On appeal, Mr. Swofford argues that the evidence did not establish that anyone was threatened with physical injury orharm by his driving. While this is a closer question than the previous argument, the evidence still allowed thejuryto make the determination that it did. Mr. Swoffordpassed his first vehicle illegally at a stop sign thathe did not obey, thereby endangering the driver he passed who could not have been expecting that action and probably was awaiting traffic to clearbefore going on pastthe stop sign. The driving during the pursuit ranged at speeds estimated at 50 to 60 miles perhour in areas zoned for 30 and 35 miles perhour, including through an area nearthe community college that has many apartment complexes. Mr. Swofford's use ofboth sides ofthe roadway, coupled withthe very high speeds for a residential area, led to at least three cars pulling to the side ofthe road. In 13 

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# I INo. 34745-1-111 State v. Swofford addition, the police officer waiting near the spike strips on the bridge and another car pulled over at the location werepotentially endangered if

### Mr. Swofford had lost control when driving through thatbarrier at high speed. He then drove offat 60 miles perhour

on failing tires and through a traffic light before the pursuing officer forced him offthe road. All ofthis occurred in foggy weather. At least four drivers had to stop to ensure their own safety due to 

### Mr. Swofford's driving, and a fifth one was illegally passed at a stop sign. This was not a pursuit on an empty stretch ofrural freeway during a clear afternoon. While it was late and traffic was much lighterthan during daylight hours, there were other drivers out who hadto respond to Mr. Swofford and his unsafe driving. Thejurywas permitted to conclude that they

were endangered by his behavior, even ifthey were not actually harmed by it. The evidence supported thejury's verdict on the eluding charge and on the endangerment enhancement. Community Custody Lastly, Mr. Swofford and the prosecutorboth argue thatthe trial court erroneously imposed community custody for 12 months by placing the null sign on the community custody line ofthejudgment and sentence. On its face, the null marker means zero, nothing, nada, zilch, nihil, or any other synonym for none. In light ofthat mark, as well

as the court's express acknowledgementthat it was not imposing community custody

14No. 34745-1-111 State v. Swofford
because it could not do so, we have no hesitancy in saying that community custody was not imposed. However, in light ofthe position ofthe parties who seem to believe that 12 months ofcommunity custody was imposed, we remandto the superior court for entry ofan order clarifying that no community custody was imposed. Affirmed and remanded. 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 pursuantto RCW 2.06.040.

WE CONCUR:

Lawrence-Berrey, A. 

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