State Of Washington, Respondent V. Darren Carmen, Appellant

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
STATE OF WASHINGTON, No. 48474-9-II
Respondent,
v.
DARREN CARMEN, UNPUBLISHED OPINION
Appellant.
MELNICK, J. — Darren Carmen appeals his conviction for attempting to elude a pursuing
police vehicle. Carmen argues there was insufficient evidence to prove he willfully failed to
immediately stop his vehicle after having been signaled to do so by an officer. Carmen further
argues the trial court erred in allowing the jury to considerer ER 404(b) evidence. We affirm
Carmen’s conviction.
FACTS
Lewis County Sheriff’s Office Deputy Justin Rodgers, a uniformed police officer, sat in
his marked police vehicle at an intersection. Rodgers observed a truck go by at a high rate of speed
which he estimated to be “around 70, 80 miles an hour.” 1 Report of Proceedings (RP) at 63.
Deputy Rodgers made eye contact with Carmen, the driver, as he drove past.
Rodgers saw the vehicle’s brake lights come on, the rear end of the vehicle come up, and
the front end come down, which the deputy observed as a sign of the vehicle abruptly stopping
after travelling at a high rate of speed. Rodgers pulled out immediately to follow the truck and
tried to get a pace of its speed. As soon as Rodgers began to pull out, he saw the truck’s brake
Filed
Washington State
Court of Appeals
Division Two
March 21, 2017

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lights go off and the tail end of the truck lower, which indicated the vehicle was accelerating
again.
Rodgers observed the truck swerve over the center line. Rodgers activated his overhead
emergency lights. The deputy estimated that at that time, he was “between 40, 50 yards” behind
Carmen.
Rodgers followed Carmen for approximately a mile and a half with his emergency lights
on. Rodgers was able to “close the gap” between the two cars and could see Carmen’s truck’s
taillights. 1 RP at 101. The deputy estimated Carmen’s speed at “between 90 and 100 miles an
hour.” 1 RP at 67. At one point, Carmen cut a corner while driving through a curve in the road,
going into the oncoming lane. The speed limit was 40 miles per hour on that stretch of the road.
Rodgers briefly lost sight of Carmen’s truck, but then came to an intersection where there
was a large dust cloud. Rodgers observed the truck in an open field. The deputy determined that
the truck left the roadway while trying to make a turn and drove into a gravel parking lot. The
truck continued to the bottom of the parking lot where it struck a stump, ran over a speed limit
sign, and travelled back onto the roadway where a tire came off the truck. The truck continued
into a driveway and then came to a stop in the field.
Upon first approaching the truck, Rodgers observed Carmen “moving very quickly at the
driver’s side door.” 1 RP 77. When Carmen started moving quickly away from the vehicle,
Rodgers drew his sidearm and commanded Carmen to cease and show his hands. Carmen
complied and Rodgers placed Carmen under arrest.
The State charged Carmen with attempting to elude a pursuing police vehicle, driving while
license suspended in the third degree, and operating a vehicle without an ignition interlock.
Carmen pleaded guilty to the latter two charges and went to trial on the former one.

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Before trial, Carmen filed a motion in limine to exclude evidence of the suspended license
and ignition interlock convictions under ER 404(b). The trial court granted the motion as to the
ignition interlock conviction, finding that its probative value was outweighed by the risk of unfair
prejudice. The trial court, however, allowed evidence of the driving while license suspended
conviction because “the fact that he pled guilty to the driving suspended in and of itself provides
evidence of motive.” 1 RP at 43. The trial court found this evidence’s probative value outweighed
any potential prejudice because it showed why Carmen would not stop when Rodgers activated
his emergency lights. The trial court instructed the jury that it could only consider Carmen’s
driving while license suspended conviction for the limited “purpose of determining whether
[Carmen] had any motive to commit the crime of Attempting to Elude” and not for any other
purpose. Clerk’s Papers (CP) at 78.
A jury found Carmen guilty of attempting to elude a pursuing police vehicle. Carmen
appealed.
ANALYSIS
I. SUFFICIENCY OF THE EVIDENCE
Carmen challenges the sufficiency of the evidence supporting his attempting to elude a
pursuing police vehicle conviction because the State did not prove that he willfully failed to stop
his truck after having been signaled to do so. We disagree.
The due process clause of the Fourteenth Amendment protects a defendant “against
conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the
crime with which he is charged.” In re Matter of Winship, 397 U.S. 358, 364, 90 S. Ct. 1068, 25
L. Ed. 2d 368 (1970). Due process further guarantees a defendant the right to challenge the
sufficiency of the evidence the State presents at trial. State v. Tyler, 195 Wn. App. 385, 392, 382

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P.3d 699 (2016). Evidence is sufficient to support a defendant’s conviction if, viewed in the light
most favorable to the State, it permits any rational trier of fact to find the essential elements of the
crime beyond a reasonable doubt. State v. Andy, 182 Wn.2d 294, 303, 340 P.3d 840 (2014). “‘A
claim of insufficiency admits the truth of the State’s evidence and all inferences that reasonably
can be drawn therefrom.’” State v. Thomas, 150 Wn.2d 821, 874, 83 P.3d 970 (2004) (quoting
State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992)). We deem circumstantial and direct
evidence equally reliable, and we defer to the trier of fact on issues of conflicting testimony,
evaluation of witness credibility, and decisions regarding the persuasiveness of evidence. State v.
Ozuna, 184 Wn.2d 238, 248, 359 P.3d 739 (2015); Thomas, 150 Wn.2d at 874-75.
A driver is guilty of attempting to elude a pursuing police vehicle when he or she “willfully
fails or refuses to immediately bring his or her vehicle to a stop” and “drives his or her vehicle in
a reckless manner while attempting to elude a pursuing police vehicle, after being given a visual
or audible signal to bring the vehicle to a stop.” RCW 46.61.024(1). Carmen’s challenge is limited
to proof he willfully failed or refused to immediately bring his vehicle to a stop.
The evidence in our record shows Rodgers observed Carmen drive by him at a high rate
of speed. The two made eye contact. Carmen appeared to brake hard and then sped up once
Rodgers pulled behind him. Carmen’s driver’s license was suspended.
Rodgers activated his emergency lights. Rodgers estimated that at that time, he was
“between 40, 50 yards” behind Carmen. 1 RP at 66. Rodgers followed Carmen for approximately
a mile and a half with his lights on. Rodgers was able to “close the gap” between the vehicles and
could see Carmen’s truck’s taillights while the deputy was behind Carmen’s truck. 1 RP at 101.
Carmen increased his speed from approximately 70 and 80 miles per hour to between 90 and 100
miles per hour. Ultimately, Carmen lost control while taking a turn and crashed the truck. Carmen

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exited the vehicle and appeared to be moving quickly away when Rodgers drew his sidearm and
commanded Carmen to stop.
Viewing these facts in the light most favorable to the State, a rational trier of fact could
conclude beyond a reasonable doubt that Carmen willfully failed or refused to immediately bring
his truck to a stop after being given a visual signal to bring the truck to a stop. While Carmen
claims there is no proof he saw Rodgers’s emergency lights, the facts viewed in favor of the State
show otherwise. Rodgers had on his emergency, flashing lights and was close enough behind
Carmen that Rodgers could see Carmen’s taillights. We defer to the trier of fact on decisions
regarding the persuasiveness of evidence. Ozuna, 184 Wn.2d at 248. Here, there was sufficient
circumstantial and direct evidence to conclude beyond a reasonable doubt that Carmen willfully
failed to stop his truck after Rodgers signaled him to do so. Thus, we hold that there was sufficient
evidence to convict Carmen of attempting to elude a pursuing police vehicle.
II. ER 404(B)
Carmen next contends that the trial court erred in admitting evidence of his conviction for
driving with license suspended in the third degree. We disagree.
Whether to admit evidence of a defendant’s prior “bad acts” under ER 404(b) lies within
the trial court’s sound discretion. State v. Gunderson, 181 Wn.2d 916, 922, 337 P.3d 1090 (2014).
A court abuses its discretion when it makes a decision on unreasonable or untenable grounds.
Gunderson, 181 Wn.2d at 922. Although not generally admissible to show conformity therewith,
evidence of prior bad acts may be admissible for other purposes, such as showing motive. ER
404(b).
Before a trial court admits evidence under ER 404(b), it must (1) find by a preponderance
of the evidence that the misconduct occurred, (2) identify the purpose for admitting the evidence,

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(3) determine the relevance of the evidence to prove an element of the crime, and (4) weigh the
probative value of the evidence against its prejudicial effect under ER 403.1 Gunderson, 181
Wn.2d at 923. Carmen challenges the trial court’s finding regarding the fourth factor.
Carmen argues that the trial court erred in finding that his suspended license conviction
was sufficiently probative, because the State was not required to prove motive as an element of
attempting to elude a pursuing police vehicle. However, the State did have to prove that Carmen
willfully failed to stop when the pursuing deputy signaled him. RCW 46.61.024(1). Evidence that
he had a motive to resist contact with police was highly probative of Carmen’s willfulness in failing
to stop. Evidence of his suspended license allowed the jury reasonably to infer that Carmen was
afraid to stop his truck because he believed he would be arrested.
Similarly, in State v. Potter, 31 Wn. App. 883, 885-86, 645 P.2d 60 (1982), Potter appealed
the trial court’s admission of prior reckless driving evidence. The defense theory in Potter “was .
. . that [the] defendant was not aware he was being pursued by police officers and did not intend .
. . to elude them.” Potter, 31 Wn. App. at 885. The appellate court affirmed the trial court’s
admission of the prior reckless driving evidence, holding there was no abuse of discretion because
“[e]vidence of the similar escapade . . . was admissible to prove . . . the absence of mistake or
accident” under ER 404(b). Potter, 31 Wn. App. at 885. The court further held that “the trial court
“carefully weighed the relevance of the evidence against its prejudicial impact before allowing its
admission.” Potter, 31 Wn. App. at 885.
Here, the trial court properly recognized that the high probative value outweighed the
potential for the evidence to unduly prejudice Carmen. The potential prejudice from evidence of
1 ER 403 states that evidence, [a]lthough relevant . . . may be excluded if its probative value is
substantially outweighed by the danger of unfair prejudice.”

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the suspended license conviction lay in the inference that Carmen had a propensity for lawlessness.
However, the trial court limited the potency of the inference by instructing the jury that the
evidence was only admissible to determine whether Carmen had any motive to commit the crime
of attempting to elude. We presume the jury follows the trial court’s instructions. State v.
Anderson, 153 Wn. App. 417, 428, 220 P.3d 1273 (2009). Given all, the trial court’s approach of
allowing motive evidence while confining any bias from the evidence was not, on these facts, an
abuse of discretion.
We affirm.
A majority of the panel having determined that this opinion will not be printed in the
Washington Appellate Reports, but will be filed for public record in accordance with RCW 2.06.040,
it is so ordered.
Melnick, J.
We concur:
Bjorgen, C.J.
Lee, J.