143 Wn. App. 698, STATE v. MAGEE

[No. 34261-8-II. Division Two. April 1, 2008.]

THE STATE OF WASHINGTON, Respondent, v. ANDREW L. MAGEE, Petitioner.

[1] Evidence — Hearsay — What Constitutes — Police Officer Relating Citizen Reports. A police officer's testimony relating citizen reports of their observations of an occurrence or incident constitutes hearsay within the meaning of ER 801(c) if the testimony is offered to prove the truth of the matter asserted.

[2] Evidence — Hearsay — Admissibility — Exception — Necessity. Under ER 802, hearsay is inadmissible unless an exception to the rule against hearsay applies.

[3] Automobiles — Traffic Infractions — Hearing — Evidence Rules — Applicability. Under ER 1101(a) and IRLJ 3.3(c), the Rules of Evidence apply in contested hearings in civil traffic infraction cases.

[4] Automobiles — Traffic Infractions — Hearing — Admission of Evidence — Review — Harmless Error — Absence of Prejudice. The erroneous admission of evidence in a contested hearing on a civil traffic infraction does not require reversal of the court's finding that the infraction was committed if the defendant was not prejudiced by the error.

[5] Automobiles — Traffic Infractions — Hearing — Admission of Evidence — Review — Harmless Error — Overwhelming Evidence. The improper admission of evidence in a contested hearing on a civil traffic infraction is harmless error if the evidence is of minor significance in reference to the overall, overwhelming evidence as a whole.

[6] Automobiles — Traffic Infractions — Hearing — Admission of Evidence — Review — Harmless Error — Violation of Court Rule — Test. The admission of evidence in a contested hearing on a civil traffic infraction in violation of an evidentiary rule is not prejudicial to the defendant unless, within reasonable probabilities, the outcome of the proceeding would have been materially affected had the error not occurred.

[7] Automobiles — Traffic Infractions — Hearing — Admission of Evidence — Review — Harmless Error — Alternative Source. A court's erroneous admission of evidence in a contested hearing on a civil traffic infraction is harmless if the subject of the evidence is placed before the court through other properly admitted evidence or testimony.

[8] Automobiles — Negligent Driving — Second Degree Negligent Driving — Nature of Offense — Traffic Infraction. Second degree negligent driving as defined by RCW 46.61.525(1)(a) is a civil traffic infraction, not a criminal offense.

[9] Automobiles — Traffic Infractions — Hearing — Degree of Proof. Under RCW 46.63.060(2)(f) and IRLJ 3.3(d), a civil traffic infraction must be proved by a preponderance of the evidence in a contested case hearing.

[10] Automobiles — Traffic Infractions — Review — Sufficiency of Evidence. There is sufficient evidence to support a finding that a motorist committed a civil traffic infraction if the evidence, viewed in the light most favorable to the State, with all reasonable inferences drawn from the evidence, permits the trier of fact to find that the motorist committed the charged infraction by a preponderance of the evidence. For purposes of sufficiency review, circumstantial evidence is no less reliable than direct evidence. Witness credibility determinations are for the trier of fact to make and are not subject to appellate review.

[11] Automobiles — Negligent Driving — Second Degree Negligent Driving — Sufficiency of Evidence — Driving Against Traffic on Highway On-Ramp. Evidence showing that a motorist briefly drove his or her vehicle against traffic on a highway on-ramp may be sufficient to support a finding that the motorist committed the civil traffic infraction of second degree negligent driving under RCW 46.61.525(1)(a).

[12] Automobiles — Traffic Infractions — Deferred Finding With Conditions — Discretionary or Mandatory. Under RCW 46.63.070, a court adjudicating a civil traffic infraction under Title 46 RCW has the discretion, not a mandatory duty, to defer a finding and impose conditions, such as payment of costs. A deferred finding is merely one option for the court, and, like probation in a criminal case, the existence of the possibility of leniency does not create a right in the defendant to such treatment.

Nature of Action: A motorist cited for second degree negligent driving contested the citation. The citation was based on an incident in which the defendant's vehicle was found by a law enforcement officer parked on the side of a highway on-ramp, facing opposite the flow of oncoming traffic. The defendant was so parked in order to help "jump start" his friend's stalled car. At the infraction hearing, the defendant admitted that he briefly drove against traffic on the on-ramp, but that he used his signals when he did so.

District Court: The Pierce County District Court, No. 5Y4346327, Margaret Vail Ross, J., on June 21, 2005, entered a finding that the infraction was committed.

Superior Court: The Superior Court for Pierce County, No. 05-2-09617-4, Beverly Grant, J., affirmed the finding on December 9, 2005.

Court of Appeals: Holding that the trial court committed harmless error by admitting the officer's hearsay testimony relaying reports of witnesses calling in the incident, that sufficient evidence existed to support the finding that the infraction was committed, and that the trial court did not have a mandatory duty to defer a finding while imposing conditions, the court affirms the decision of the superior court.

Andrew L. Magee-, pro se.

Gerald A. Horne-, Prosecuting Attorney, and Michelle Hyer-, Deputy, for respondent.

¶1 QUINN-BRINTNALL, J. — Following a civil infraction hearing, the district court found that Andrew L. Magee committed second degree negligent driving. On appeal, Magee challenges the trial court's reliance on a portion of the trooper's testimony that relayed nontestifying motorists' telephonic reports that they had seen a car driving the wrong way on State Route (SR) 512, the sufficiency of the evidence, and the district court's failure to defer findings with costs. Because there was sufficient evidence showing Magee committed the infraction, we affirm.

FACTS

¶2 On April 9, 2005, Kenneth Hershey called Magee and asked him for help jump starting Hershey's car, which was parked on the shoulder of the on ramp to SR 512 in Puyallup, Washington. Following motorists' reports of seeing a car driving the wrong way on the freeway, Washington State Trooper D.D. Randall was dispatched to SR 512, between Benston Drive and East Pioneer Avenue. At the scene, Randall found Magee's car parked on the shoulder of the road; the car was facing the opposite direction of oncoming traffic and was parked "nose-to-nose" with his friend Hershey's car. Clerk's Papers (CP) at 28. Randall cited Magee for second degree negligent driving pursuant to RCW 46.61.525.«1»

«1» RCW 46.61.525 provides:

(1)(a) A person is guilty of negligent driving in the second degree if, under circumstances not constituting negligent driving in the first degree, he or she operates a motor vehicle in a manner that is both negligent and endangers or is likely to endanger any person or property.

(b) It is an affirmative defense to negligent driving in the second degree that must be proved by the defendant by a preponderance of the evidence, that the driver was operating the motor vehicle on private property with the consent of the owner in a manner consistent with the owner's consent.

(c) Negligent driving in the second degree is a traffic infraction and is subject to a penalty of two hundred fifty dollars.

(2) For the purposes of this section, "negligent" means the failure to exercise ordinary care, and is the doing of some act that a reasonably careful person would not do under the same or similar circumstances or the failure to do something that a reasonably careful person would do under the same or similar circumstances.

¶3 Magee contested the traffic infraction and requested a hearing. At the hearing,«2» Trooper Randall testified that she did not witness Magee drive in the wrong direction on the highway but that she had observed Magee's car parked on the shoulder facing the wrong way.

«2» District courts may preside over traffic infraction hearings without a prosecutor's presence. City of Bellevue v. Hellenthal, 144 Wn.2d 425, 434-35, 28 P.3d 744 (2001).

¶4 Hershey testified that he was with Magee before Trooper Randall arrived and that he did not see Magee drive the wrong way on SR 512. Magee testified that he did not drive against traffic on SR 512 and that he did not cross the oncoming lanes of SR 512. However, Magee also testified that when he crossed the oncoming lanes of traffic for the on-ramp to SR 512, he made sure to signal before pulling into the oncoming lanes and signaled again when he drove a short distance (the wrong way) to the shoulder and parked facing Hershey's car, which was parked in the same direction with the flow of traffic.

¶5 The district court«3» found that Magee committed second degree negligent driving because the position of his car was such that "unless [Magee's car was] airlifted, [Magee was] going the opposite direction of . . . the natural flow of traffic." CP at 32. The district court further found that it was not relevant whether Magee was driving on the shoulder or the paved highway because driving the wrong way "endangers people. Reasonably prudent persons . . . don't drive the wrong way, even on an onramp." CP at 32. Pursuant to RALJ 2.4, Magee appealed to the superior court. RCW 46.63.040(1).

«3» The Washington Legislature established limited jurisdiction courts to hear and determine violations of law designated as traffic infractions. RCW 46.63.040(1).

¶6 The superior court affirmed the district court's ruling, holding that there was sufficient evidence to support the district court's finding that Magee committed the infraction. It further held that there were no due process or discovery violations. We granted Magee's motion for discretionary review.

ANALYSIS

HEARSAY

[1, 2] ¶7 Magee asserts that, in finding that he had committed second degree negligent driving, the trial court improperly relied on Trooper Randall's testimony relating telephonic reports from motorists who reported having seen a car driving the wrong way on SR 512. Magee argues that this testimony was hearsay and could not be considered for the truth of the matter asserted: that he was driving the wrong way on the freeway. We agree. Randall's testimony regarding motorists' reports was hearsay and the trial court erred when it denied Magee's timely hearsay objections. ER 801(c), 802; see State v. Chapin, 118 Wn.2d 681, 685-86, 826 P.2d 194 (1992) (hearsay is inadmissible in criminal cases unless an exception applies); Marsh-McLennan Bldg., Inc. v. Clapp, 96 Wn. App. 636, 641, 980 P.2d 311 (1999) (hearsay is inadmissible in civil cases unless an exception applies).

[3] ¶8 The rules of evidence apply to traffic infraction cases. ER 1101(a) provides, "[e]xcept as otherwise provided in section (c), these rules apply to all actions and proceedings in the courts of the state of Washington." Moreover, IRLJ 3.3(c) provides that "[t]he Rules of Evidence and statutes that relate to evidence in infraction cases shall apply to contested hearings." The hearing in Magee's case was a contested hearing and, thus, the rules of evidence applied.

[4-6] ¶9 But an error in admitting evidence does not require reversal unless it prejudices the defendant. Brown v. Spokane County Fire Prot. Dist. No. 1, 100 Wn.2d 188, 196, 668 P.2d 571 (1983). The improper admission of evidence is harmless error if the evidence is of minor significance in reference to the overall, overwhelming evidence as a whole. Thieu Lenh Nghiem v. State, 73 Wn. App. 405, 413, 869 P.2d 1086 (1994). Where the error arises from a violation of an evidentiary rule, that error is not prejudicial unless, within reasonable probabilities, the outcome of the trial would have been materially affected had the error not occurred. State v. Halstien, 122 Wn.2d 109, 127, 857 P.2d 270 (1993).

¶10 In this case, Magee objected several times to the trooper's testimony about the witnesses' reports to the 911 dispatcher that they had seen a car driving the wrong way on SR 512. A review of the record shows that the trooper's testimony was intertwined with and heavily relied on this inadmissible hearsay evidence to which Magee timely objected.«4»

«4» The statements were made during 911 calls and relayed to the trooper by the dispatcher. The statements were relevant and admissible to explain why the trooper went to where Magee's and Hershey's cars were located but not for the truth of the matter asserted: that Magee was driving the wrong way on the freeway. The trial court did not admit the statements under an exception to the hearsay rule, such as an excited utterance, ER 803(a)(2), or present sense impression, ER 803(a)(1). Accordingly, the statements were hearsay to which Magee properly objected. Because they are not substantive evidence, we do not consider them in evaluating Magee's challenge to the sufficiency of the evidence.

[7] ¶11 However, Magee testified at the hearing. In his testimony, Magee admitted that he briefly drove against traffic to turn his car around but that he used his signals when he did so.«5» Thus, although the trial court improperly admitted the trooper's testimony relating hearsay reports of other motorists as evidence that Magee drove the wrong way on the freeway, Magee's in-court admission rendered the error harmless. Nghiem, 73 Wn. App. at 413.

«5» Magee specifically testified that

[Hershey] had called me and [his car] wouldn't start so I did pull in front of him to give him a jump-start. At all times when I came back into the lane of the onramp, I did signal to go into the ramp and then onto that lane, and then did signal to pull over, and at all time[s] I did have my flashers on.

CP at 31.

SUFFICIENCY OF THE EVIDENCE

¶12 Magee next argues that (1) Trooper Randall did not have the authority to issue a citation because the infraction was not committed in the trooper's presence and (2) the trooper unlawfully detained him for a traffic violation because the trooper did not see him commit the violation. Magee is essentially arguing that there was insufficient direct evidence from the fact that his car was parked on the shoulder of SR 512 facing the wrong way to find that he committed second degree negligent driving.

[8, 9] ¶13 Second degree negligent driving is a traffic infraction and not a criminal offense. State v. Farr-Lenzini, 93 Wn. App. 453, 467, 970 P.2d 313 (1999). Accordingly, the trial court must find that a preponderance of the evidence supports the conclusion that the defendant committed the charged infraction. RCW 46.63.060(2)(f);«6» Farr-Lenzini, 93 Wn. App. at 467. A person commits the infraction of second degree negligent driving when he "operates a motor vehicle in a manner that is both negligent and endangers or is likely to endanger any person or property." RCW 46.61.525(1)(a).

«6» RCW 46.63.060(2)(f) provides:

A statement that at any hearing to contest the determination the state has the burden of proving, by a preponderance of the evidence, that the infraction was committed; and that the person may subpoena witnesses including the officer who issued the notice of infraction.

¶14 "Negligence" is defined to mean "the failure to exercise ordinary care, and is the doing of some act that a reasonably careful person would not do under the same or similar circumstances or the failure to do something that a reasonably careful person would do under the same or similar circumstances." RCW 46.61.525(2).

[10] ¶15 Evidence of the infraction is sufficient if, viewed in the light most favorable to the State and making all reasonable inferences therefrom, it permitted the trier of fact to find by a preponderance of the evidence that Magee drove negligently. IRLJ 3.3(d), 5.2; Farr-Lenzini, 93 Wn. App. at 467; State v. Roberts, 73 Wn. App. 141, 143-44, 867 P.2d 697, review denied, 124 Wn.2d 1022 (1994). Circumstantial evidence is no less reliable than direct evidence. State v. Myers, 133 Wn.2d 26, 38, 941 P.2d 1102 (1997). Credibility determinations are for the trier of fact and are not subject to review. State v. Thomas, 150 Wn.2d 821, 874-75, 83 P.3d 970 (2004).

[11] ¶16 Here, Trooper Randall saw Magee's car parked facing the opposite direction of the natural flow of traffic. The district court noted that unless Magee's car was airlifted, this circumstantial evidence established that Magee had to be driving the wrong way to get his car in that position. In finding that Magee had committed the infraction of second degree negligent driving, the district court concluded that driving the wrong way, "even on an onramp," endangered people; that reasonably prudent people do not drive the wrong way on the highway or the on ramp; and that it would have been more helpful for Magee to call a tow truck to help Hershey. CP at 32.

¶17 As discussed above, standing alone, Magee's testimony was sufficient to support the district court's finding that Magee drove against traffic and, thus, operated his car "in a manner that is both negligent and endangers or is likely to endanger any person or property." RCW 46.61.525(1)(a). His argument to the contrary fails.

ALTERNATIVE OR DEFERRED FINDING WITH COSTS

¶18 Magee next argues that he was denied procedural due process because the district court did not review his case to determine his eligibility for a dismissal with costs or a deferred finding.

¶19 In this case, the district court mailed Magee a letter outlining the procedure for contesting the citation and advised Magee that he had various options including a hearing in person, by mail, or dismissal with costs and a deferral of the finding that he committed the infraction. During oral argument, this court asked that the parties provide citation to authority granting any court the ability to defer a finding while at the same time requiring the defendant to pay costs. They cited none.

[12] ¶20 After we filed this opinion, however, we discovered that, although the legislature clearly restated its disapproval of this practice in criminal prosecutions,«7» it did not repeal RCW 46.63.070, which allows the trial court adjudicating a civil infraction to employ such procedure. RCW 46.63.070 provides in relevant part:

[I]n hearings conducted pursuant to subsections (3) and (4) of this section, the court may defer findings, or in a hearing to explain mitigating circumstances may defer entry of its order, for up to one year and impose conditions upon the defendant the court deems appropriate. Upon deferring findings, the court may assess costs as the court deems appropriate for administrative processing. If at the end of the deferral period the defendant has met all conditions and has not been determined to have committed another traffic infraction, the court may dismiss the infraction.

RCW 46.63.070(5)(a). Thus, the legislature has apparently determined that, in a criminal case, a trial court has the authority to impose costs on a convicted defendant only. State v. Buchanan, 78 Wn. App. 648, 651, 898 P.2d 862 (1995). Under former RCW 10.01.160(1) (2005), "[c]osts may be imposed only upon a convicted defendant." (Emphasis added.) See RCW 10.01.050 ("No person charged with any offense against the law shall be punished for such offense, unless he shall have been duly and legally convicted thereof in a court having competent jurisdiction of the case and of the person."). And that a court may not defer a finding on condition that a criminal defendant pay costs it has no authority to impose. But when the charge at issue is a civil infraction, under RCW 46.61.525(1)(c), a trial court may defer a finding and impose conditions on an alleged violator including payment of costs.«8»

«7» The legislature recently amended former RCW 10.01.160(1) (2005) but did not alter the law that costs may be imposed only upon a convicted defendant.

The court may require a defendant to pay costs. Costs may be imposed only upon a convicted defendant, except for costs imposed upon a defendant's entry into a deferred prosecution program, costs imposed upon a defendant for pretrial supervision, or costs imposed upon a defendant for preparing and serving a warrant for failure to appear.

LAWS OF 2007, ch. 367, § 3 (effective date July 22, 2007) (first emphasis added).

«8» RCW 46.63.070, allowing deferral of a finding for a fee, apparently reflects a legislative policy decision allowing such practice in adjudicating civil infractions, chapter 46.61 RCW, while prohibiting it in adjudicating criminal charges, RCW 10.01.050. See State v. Smith, 93 Wn.2d 329, 339, 610 P.2d 869 (a reviewing court cannot substitute its judgment for that of the legislature), cert. denied, 449 U.S. 873 (1980).

¶21 Notwithstanding Magee's argument to the contrary, even RCW 46.63.070 does not require that a trial court defer a finding, it merely gives the court discretion to do so when adjudicating liability on an infraction. The possibility of a deferred finding is but one option the infraction court may entertain and, like probation in a criminal case, the existence of the possibility of leniency does not create a right in the defendant to such treatment. See State v. Davis, 43 Wn. App. 832, 835, 720 P.2d 454 ("Probation is a matter of grace, privilege or clemency granted to the deserving and withheld from the undeserving within the discretion of the trial judge." (citing State v. Kuhn, 81 Wn.2d 648, 650, 503 P.2d 1061 (1972); State v. Murray, 28 Wn. App. 897, 900, 627 P.2d 115, review denied, 95 Wn.2d 1029 (1981))), review denied, 106 Wn.2d 1017 (1986). Accordingly, Magee was not denied due process by the trial court's decision to enter a finding rather than deferring it.

¶22 And because Magee's testimony is sufficient to support the district court's ruling that he "committed" the infraction of second degree negligent driving, we affirm.

HOUGHTON, C.J., and PENOYAR, J., concur.