Mainsail
Member
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
STATE OF WASHINGTON, No. 34156-5-II
Respondent,
v.
DAN WILLIAM COLLINS, UNPUBLISHED OPINION
Appellant.
ARMSTRONG, J. -- Dan William Collins appeals his conviction of attempting to elude a
pursuing police vehicle, arguing in part that the State did not prove that the officers who signaled
him to stop were in uniform, an element of the crime. We agree and, therefore, reverse and
remand for dismissal.
FACTS
On January 21, 2005, Lewis County Deputy Sheriff Daniel Riordan was on patrol in his
police vehicle, equipped with fully functioning lights and sirens. At around 6:00 p.m., while
responding to a call with his police lights running, he pulled in behind a motorcycle traveling at
about 60 miles per hour. The motorcycle did not yield to his lights.
Riordan and two other officers pursued the motorcyclist at high speeds for approximately
40 minutes before they broke off the chase. Riordan was later able to identify Collins as the
No. 34156-5-II
motorcyclist. At trial, the State provided no evidence that the officers were wearing their
uniforms at the time of the chase.
ANALYSIS
I. Sufficiency of the Evidence
Collins argues that the State failed to prove that Riordan and the other signaling officers
were in uniform at the time of the pursuit, an element of attempting to elude a pursuing police
vehicle.
Evidence is sufficient to support a conviction if, after reviewing the evidence in the light
most favorable to the State, any rational trier of fact could have found guilt beyond a reasonable
doubt. State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992). In considering a
defendant's claim of insufficient evidence, we accept the State's evidence and draw all reasonable
inferences from the evidence in favor of the State. Salinas, 119 Wn.2d at 201. The State bears
the burden of proving all elements of a crime beyond a reasonable doubt. State v. Teal, 152
Wn.2d 333, 337, 96 P.3d 974 (2004).
The eluding statute provides:
Any driver of a motor vehicle who willfully fails or refuses to immediately bring his
vehicle to a stop and who drives his 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, shall be guilty of a class C felony. The signal given by
the police officer may be by hand, voice, emergency light, or siren. The officer
giving such a signal shall be in uniform and the vehicle shall be equipped with
lights and sirens.
RCW 46.61.024(1) (emphasis added).
Divisions One and Three have both held that the State must prove that the signaling
officer was in uniform as an element of the crime of attempting to elude a police vehicle. In State
v. Hudson, Division One reasoned that the
2
No. 34156-5-II
eluding statute "clearly requires" evidence that the officer giving the signal to stop was in uniform.
State v. Hudson, 85 Wn. App. 401, 403, 932 P.2d 714 (1997). In that case, the signaling officers
were in a marked patrol car with its lights and siren activated and said, "Stop" and "Police" after
exiting the car. Hudson, 85 Wn. App. at 404. But there was no testimony that the officers were
in uniform. Hudson, 85 Wn. App. at 404. The court held that evidence that the officers were in a
marked vehicle and that the defendant probably knew they were police officers was insufficient to
permit a rational trier of fact to infer beyond a reasonable doubt that these officers were in
uniform. Hudson, 85 Wn. App. at 405. Division Three reached the same conclusion in a case
with similar facts.1 State v. Fussell, 84 Wn. App. 126, 127-29, 925 P.2d 642 (1996).
The facts of the case at hand are indistinguishable from those in Hudson and Fussell.
Deputy Riordan and other officers pursued the motorcyclist in patrol cars with lights and sirens
on. But the State presented no evidence that any officer was wearing a uniform at the time of the
chase. The statute plainly requires proof that at least one of the signaling officers was in uniform.
The State, however, urges us to reject the reasoning of Divisions One and Three and hold
that the evidence and all the reasonable inferences that may be drawn from it permit a rational
inference that Riordan was in uniform at the time of the pursuit. The State attempts to distinguish
Hudson by referring to the "paucity of facts" in that case and speculating that it was tried before
the bench and not a jury. But the State must prove all the elements of the crime no matter who
the finder of fact is.
1 Division Three later noted in a case involving a pursuit by a police vehicle that was unmarked
but had blue lights flashing: "This may not be the result the Legislature intended by this statute,
but it is nonetheless the result required by the present wording of the statute." State v. Ritts, 94
Wn. App. 784, 789, 973 P.2d 493 (1999). The legislature amended the statute in 2003 to require
a police vehicle with lights and sirens instead of a marked vehicle, but did not change the uniform
requirement. H.B. 1076, 58th Leg., Reg. Sess. (Wash. 2003).
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No. 34156-5-II
The State also asserts that the Hudson and Fussell courts did not correctly apply the
sufficiency of the evidence standard, which requires a reviewing court to draw all inferences in
favor of the State. While it may be rational to infer that the driver of a marked patrol car with
lights and sirens is a police officer, it does not necessarily follow that the driver is in uniform. The
driver could be on the way to an undercover operation, off duty, or out of uniform for some other
reason. We agree with Hudson and Fussell that evidence the chasing officers were in marked
police cars with lights and sirens operating is not sufficient to allow the fact finder to infer beyond
a reasonable doubt that the officers were in uniform.
Because the State failed to prove Collins's guilt beyond a reasonable doubt, we reverse
and remand for dismissal.
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 pursuant to RCW 2.06.040, it is so
ordered.
Armstrong, J.
We concur:
Houghton, C.J.
Hunt, J.
DIVISION II
STATE OF WASHINGTON, No. 34156-5-II
Respondent,
v.
DAN WILLIAM COLLINS, UNPUBLISHED OPINION
Appellant.
ARMSTRONG, J. -- Dan William Collins appeals his conviction of attempting to elude a
pursuing police vehicle, arguing in part that the State did not prove that the officers who signaled
him to stop were in uniform, an element of the crime. We agree and, therefore, reverse and
remand for dismissal.
FACTS
On January 21, 2005, Lewis County Deputy Sheriff Daniel Riordan was on patrol in his
police vehicle, equipped with fully functioning lights and sirens. At around 6:00 p.m., while
responding to a call with his police lights running, he pulled in behind a motorcycle traveling at
about 60 miles per hour. The motorcycle did not yield to his lights.
Riordan and two other officers pursued the motorcyclist at high speeds for approximately
40 minutes before they broke off the chase. Riordan was later able to identify Collins as the
No. 34156-5-II
motorcyclist. At trial, the State provided no evidence that the officers were wearing their
uniforms at the time of the chase.
ANALYSIS
I. Sufficiency of the Evidence
Collins argues that the State failed to prove that Riordan and the other signaling officers
were in uniform at the time of the pursuit, an element of attempting to elude a pursuing police
vehicle.
Evidence is sufficient to support a conviction if, after reviewing the evidence in the light
most favorable to the State, any rational trier of fact could have found guilt beyond a reasonable
doubt. State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992). In considering a
defendant's claim of insufficient evidence, we accept the State's evidence and draw all reasonable
inferences from the evidence in favor of the State. Salinas, 119 Wn.2d at 201. The State bears
the burden of proving all elements of a crime beyond a reasonable doubt. State v. Teal, 152
Wn.2d 333, 337, 96 P.3d 974 (2004).
The eluding statute provides:
Any driver of a motor vehicle who willfully fails or refuses to immediately bring his
vehicle to a stop and who drives his 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, shall be guilty of a class C felony. The signal given by
the police officer may be by hand, voice, emergency light, or siren. The officer
giving such a signal shall be in uniform and the vehicle shall be equipped with
lights and sirens.
RCW 46.61.024(1) (emphasis added).
Divisions One and Three have both held that the State must prove that the signaling
officer was in uniform as an element of the crime of attempting to elude a police vehicle. In State
v. Hudson, Division One reasoned that the
2
No. 34156-5-II
eluding statute "clearly requires" evidence that the officer giving the signal to stop was in uniform.
State v. Hudson, 85 Wn. App. 401, 403, 932 P.2d 714 (1997). In that case, the signaling officers
were in a marked patrol car with its lights and siren activated and said, "Stop" and "Police" after
exiting the car. Hudson, 85 Wn. App. at 404. But there was no testimony that the officers were
in uniform. Hudson, 85 Wn. App. at 404. The court held that evidence that the officers were in a
marked vehicle and that the defendant probably knew they were police officers was insufficient to
permit a rational trier of fact to infer beyond a reasonable doubt that these officers were in
uniform. Hudson, 85 Wn. App. at 405. Division Three reached the same conclusion in a case
with similar facts.1 State v. Fussell, 84 Wn. App. 126, 127-29, 925 P.2d 642 (1996).
The facts of the case at hand are indistinguishable from those in Hudson and Fussell.
Deputy Riordan and other officers pursued the motorcyclist in patrol cars with lights and sirens
on. But the State presented no evidence that any officer was wearing a uniform at the time of the
chase. The statute plainly requires proof that at least one of the signaling officers was in uniform.
The State, however, urges us to reject the reasoning of Divisions One and Three and hold
that the evidence and all the reasonable inferences that may be drawn from it permit a rational
inference that Riordan was in uniform at the time of the pursuit. The State attempts to distinguish
Hudson by referring to the "paucity of facts" in that case and speculating that it was tried before
the bench and not a jury. But the State must prove all the elements of the crime no matter who
the finder of fact is.
1 Division Three later noted in a case involving a pursuit by a police vehicle that was unmarked
but had blue lights flashing: "This may not be the result the Legislature intended by this statute,
but it is nonetheless the result required by the present wording of the statute." State v. Ritts, 94
Wn. App. 784, 789, 973 P.2d 493 (1999). The legislature amended the statute in 2003 to require
a police vehicle with lights and sirens instead of a marked vehicle, but did not change the uniform
requirement. H.B. 1076, 58th Leg., Reg. Sess. (Wash. 2003).
3
No. 34156-5-II
The State also asserts that the Hudson and Fussell courts did not correctly apply the
sufficiency of the evidence standard, which requires a reviewing court to draw all inferences in
favor of the State. While it may be rational to infer that the driver of a marked patrol car with
lights and sirens is a police officer, it does not necessarily follow that the driver is in uniform. The
driver could be on the way to an undercover operation, off duty, or out of uniform for some other
reason. We agree with Hudson and Fussell that evidence the chasing officers were in marked
police cars with lights and sirens operating is not sufficient to allow the fact finder to infer beyond
a reasonable doubt that the officers were in uniform.
Because the State failed to prove Collins's guilt beyond a reasonable doubt, we reverse
and remand for dismissal.
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 pursuant to RCW 2.06.040, it is so
ordered.
Armstrong, J.
We concur:
Houghton, C.J.
Hunt, J.
"