State of Washington v. Bryan Paul Aho

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
STATE OF WASHINGTON,
Respondent,
v.
BRYAN PAUL AHO,
Appellant.
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No. 39236-8-III
UNPUBLISHED OPINION
COONEY, J. — Bryan Paul Aho was charged with attempting to elude a police
vehicle, driving without an ignition interlock device, and driving while license suspended
in the third degree. After pleading guilty to the two misdemeanors, Mr. Aho proceeded
to trial on the charge of attempting to elude a police vehicle. The jury returned a verdict
of guilty. Mr. Aho appeals alleging a due process violation and prosecutorial
misconduct.
We affirm.
BACKGROUND
On January 31, 2022, Mr. Aho was a driving a vehicle he had recently purchased.
He pulled out in front of Mitchel Kroner, a deputy with the Benton County Sheriff’s
Office, garnering the deputy’s attention. Deputy Kroner ran a check on the vehicle’s
license plate to ascertain who owned the vehicle and to verify the vehicle’s registration
FILED
JANUARY 11, 2024
In the Office of the Clerk of Court
WA State Court of Appeals Division III

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State v. Aho
2
was valid. A return on the license plate revealed that the registered owner’s driving
privileges were suspended. Deputy Kroner began to notify dispatch that he was going to
conduct a traffic stop when Mr. Aho immediately turned into a McDonald’s parking lot.
Deputy Kroner turned on his emergency lights with the intent of stopping Mr. Aho. In
response, Mr. Aho drove through the McDonald’s parking lot and onto Skagit, a gravel
road, where he accelerated to a high rate of speed. As the deputy pursued, Mr. Aho
approached the intersection of Skagit and Kellogg where he failed to stop at a posted stop
sign and attempted to turn right while accelerating. Mr. Aho failed to negotiate the turn,
collided with another vehicle in the intersection, and came to a stop.
The State charged Mr. Aho with attempting to elude a police vehicle, driving
without an ignition interlock device, and driving while license suspended in the third
degree. Mr. Aho pleaded guilty to the charges of driving without an ignition interlock
device and driving while license suspended, and proceeded to trial on the charge of
attempting to elude a police vehicle.
At trial, Mr. Aho testified that he was not attempting to evade Deputy Kroner
when he turned into the McDonald’s parking lot. Rather, he turned into the McDonalds
parking lot because he was hungry. Mr. Aho testified he suddenly left the McDonalds
parking lot without ordering food after his girlfriend reminded him it was garbage day.
He explained to the jury that he veered off onto the gravel road because he had just gotten
the car and wanted to “play around a little” and that he was unaware the deputy was

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3
behind him. Rep. of Proc. (RP) at 176. Mr. Aho testified that he “floored the pedal”
after leaving the McDonalds’ parking lot because “it was a new car” and he was “playin
[sic] around.” RP at 176. Mr. Aho claimed he went through the stop sign because he
saw no other vehicles around. Finally, Mr. Aho testified that when he saw the police
officer behind him, he attempted to hit the brake but he “missed the pedal or slipped off
the pedal” and “hit the gas at the stop sign.” RP at 177.
At the close of evidence, neither the State nor Mr. Aho objected to the jury
instructions. The court read the instructions to the jury. Following summation, the jury
was provided a written copy of the instructions. Relevant to this appeal, the court read
“INSTRUCTION NO. 6” to the jury. Clerk’s Papers (CP) at 67. The instruction stated:
To convict the defendant of the crime of Attempting to Elude a
Police Vehicle, each of the following elements of the crime must be proved
beyond a reasonable doubt:
(1) That on or about January 31, 2022, the defendant drove a motor
vehicle;
(2) That the defendant was signaled to stop by a uniformed police
officer by hand, voice, emergency light, or siren;
(3) That the signaling police officer’s vehicle was equipped with
lights and siren;
(4) That the defendant willfully failed or refused to immediately
bring the vehicle to a stop after being signaled to stop;
(5) That while attempting to elude a pursuing police vehicle, the
defendant drove his vehicle in a reckless manner; and
(6) That the acts occurred in the State of Washington.

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4
If you find from the evidence that each of these elements has been
proved beyond a reasonable doubt, then it will be your duty to return a
verdict of guilty.
On the other hand, if after weighing all the evidence you have a
reasonable doubt as to any one of these elements, then it will be your duty
to return a verdict of not guilty.
CP at 67.
During closing argument, the State applied the evidence to each of the six
elements of attempting to elude a police vehicle. When it came to the “drove his vehicle
in a reckless manner” element, the prosecutor argued:
Accelerating away from a patrol car and blowing through a stop sign
and crashing into another vehicle I submit to you is certainly rash or
heedless, and it’s certainly reckless manner. Vehicles that are not being
driven in a reckless manner don’t strike oncoming cars.
RP at 208. Following deliberations, the jury found Mr. Aho guilty of the crime of
attempting to elude a police vehicle. Mr. Aho timely appeals.
ANALYSIS
DUE PROCESS
For the first time on appeal, Mr. Aho argues that jury instruction 6 violated his
right to due process under the Fourteenth Amendment to the United States Constitution.
Specifically, Mr. Aho claims the difference between “if you find from the evidence” and
“if after weighing all the evidence” creates a less onerous standard for conviction than it

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does for acquittal. See Appellant’s Opening Br. at 6-7. The State responds that under
RAP 2.5(a) we should decline to review the unpreserved error.
Under RAP 2.5(a) we may refuse to review any claim of error that was not raised
at the trial court. This rule is intended to encourage the efficient use of judicial resources.
State v. Scott, 110 Wn.2d 682, 685, 757 P.2d 492 (1988). However, claimed errors of a
lack of jurisdiction, a failure to establish facts on which relief can be granted, or a
manifest error affecting a constitutional right may be raised for the first time on appeal.
RAP 2.5(a).
Mr. Aho fails to articulate under which exception his claimed error falls. Because
Mr. Aho alleges a due process violation under the Fourteenth Amendment, we presume
he is claiming a manifest error affecting a constitutional right. “In analyzing an asserted
constitutional interest, we do not assume the alleged error is of constitutional magnitude.”
State v. O’Hara, 167 Wn.2d 91, 98, 217 P.3d 756 (2009). Rather, “[w]e look to the
asserted claim and assess whether, if correct, it implicates a constitutional interest as
compared to another form of trial error.” Id.
Once an error has been deemed to be of a constitutional magnitude, the appellate
court must determine whether the error is manifest. Id. at 99. An error is manifest if
there is a “‘plausible showing by the [appellant] that the asserted error had practical and
identifiable consequences in the trial of the case.’” Id. (alteration in original) (quoting
State v. Kirkman, 159 Wn.2d 918, 935, 155 P.3d 125 (2007)). The burden is on the

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defendant seeking the appeal to identify a constitutional error, and show that the alleged
error actually affected their rights at trial. Kirkman, 159 Wn.2d at 926-27. Once an error
is established as a manifest constitutional error, the appellate court must next engage in a
harmless error analysis. O’Hara, 167 Wn.2d at 99. “In order to ensure the actual
prejudice and harmless error analyses are separate, the focus of the actual prejudice must
be on whether the error is so obvious on the record that the error warrants appellate
review.” Id. at 99-100.
Mr. Aho argues a violation of his constitutional right to due process under the
Fourteenth Amendment. Accordingly, we look to his claim to determine, if correct,
whether his right to due process was violated. Mr. Aho argues that the language in
instruction 6 of “[i]f you find from the evidence” created a less onerous standard than the
to acquit language of “if after weighing all the evidence.” CP at 67. If Mr. Aho’s
allegations are correct, then the alleged error would be of constitutional magnitude. The
jury may have interpreted the instruction as imposing a less stringent review of the
evidence in order to convict.
Because Mr. Aho’s claimed error is of constitutional magnitude, he must next
show that the constitutional error was manifest (i.e., he was actually prejudiced by the
alleged error). Instead of asserting actual prejudice, Mr. Aho speculates that, but for the
claimed error, the jury’s verdict may have been different. Mr. Aho asserts “[t]he court’s
error suggested that jurors could convict based on a less rigorous review of the evidence

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than required for acquittal.” Appellant’s Opening Br. at 8 (emphasis added). The mere
possibility that the trial court suggested a less onerous standard to convict does not
establish how the claimed error actually affected Mr. Aho’s rights at trial. The claimed
constitutional error is not manifest. Accordingly, we decline review.
PROSECUTORIAL MISCONDUCT
Mr. Aho next contends the State engaged in prosecutorial misconduct during
closing argument. Mr. Aho alleges that the prosecutor’s argument that “[v]ehicles that
are not being driven in a reckless manner don’t strike oncoming cars,” RP at 208, created
a mandatory presumption in the mind of the jurors. Such a presumption, according to
Mr. Aho, shifted the burden of proof to him and relieved the State of its obligation to
prove the element of recklessness beyond a reasonable doubt. The State responds that
Mr. Aho failed to object to the prosecutor’s argument, and thus, error, if any, was waived.
We agree.
Prosecutorial misconduct is grounds for reversal if “‘the prosecuting attorney’s
conduct was improper and prejudicial.’” State v. Monday, 171 Wn.2d 667, 675, 257 P.3d
551 (2011) (quoting State v. Fisher, 165 Wn.2d 727, 747, 202 P.3d 937 (2009)). The
defendant bears the burden of proving that the prosecutor’s conduct was both improper
and prejudicial. State v. Emery, 174 Wn.2d 741, 756, 278 P.3d 653 (2012). A
prosecutor’s argument must be confined to the law stated in the trial court’s instructions.
State v. Walker, 164 Wn. App. 724, 736, 265 P.3d 191 (2011). When the prosecutor

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mischaracterizes the law and there is a substantial likelihood that the misstatement
affected the jury verdict, the prosecutor’s actions are considered improper. Id.
If a defendant fails to object at trial to the prosecutor’s misconduct, then the
defendant is deemed to have waived any error, unless the prosecutor’s misconduct was so
flagrant and ill intentioned that an instruction could not have cured the resulting
prejudice. Emery, 174 Wn.2d at 760-61. “Under this heightened standard, the defendant
must show that (1) ‘no curative instruction would have obviated any prejudicial effect on
the jury’ and (2) the misconduct resulted in prejudice that ‘had a substantial likelihood of
affecting the jury verdict.’” Id. at 761 (quoting State v. Thorgerson, 172 Wn.2d 438,
455, 258 P.3d 43 (2011)).
As explained below, the prosecutor’s argument was proper, and Mr. Aho fails to
meet the heightened “flagrant and ill intentioned standard.” When examining a
prosecutor’s alleged misconduct, the improper conduct is not viewed in isolation.
Monday, 171 Wn.2d at 675. Instead, the conduct is looked at “in the full trial context,
including the evidence presented, ‘the context of the total argument, the issues in the
case, the evidence addressed in the argument, and the instructions given to the jury.’” Id.
(quoting State v. McKenzie, 157 Wn.2d 44, 52, 134 P.3d 221 (2006)).
Here, the prosecutor began its closing argument by reminding the jury that it
carried the burden of proving all six elements of the crime. The prosecutor then reviewed
the evidence with the jury, tying it to the elements of the crime. When it came to the

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reckless manner element, the prosecutor argued, “Accelerating away from a patrol car
and blowing through a stop sign and crashing into another vehicle I submit to you is
certainly rash or heedless, and it’s certainly reckless manner.” RP at 208. The prosecutor
then stated, “Vehicles that are not being driven in a reckless manner don’t strike
oncoming cars.” RP at 208. Although the prosecutor’s argument may appear to promote
a mandatory presumption, it was diluted by the preceding statement. Viewed in context,
the prosecutor’s argument focused on the evidence, argued that the evidence proved that
Mr. Aho was driving in a reckless manner, and did not argue that the jury should presume
anything other than what the evidence showed. We conclude that the prosecutor’s
argument was proper.
Affirmed.
A majority of the 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.
Cooney, J.
WE CONCUR:
Fearing, C.J. Lawrence-Berrey, J.