State Of Washington, V. Sammy Eric Petersen

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON,

No. 86614-1-I

Respondent,

DIVISION ONE

v.

UNPUBLISHED OPINION

SAMMY ERIC PETERSEN,

Appellant.

CHUNG, J. — Sammy Petersen appeals his conviction for vehicular

homicide, following an accident in which a motorcyclist was killed. Petersen

challenges his conviction based on violations of his Miranda 1 rights and

insufficient evidence. He further asserts the trial court erred by not awarding him

credit for time served pretrial on electronic home monitoring. Additionally, in a

statement of additional grounds for review (SAG), Petersen claims ineffective

assistance of counsel. We conclude there was no error and affirm the conviction

and sentence.

FACTS

On April 25, 2021, Sammy Petersen was in a collision on State Route 7

that resulted in the death of motorcyclist Scott Beschta. It was around sunset at

the time and it was starting to get dark. Another driver who was on the same

stretch of road at the time of the accident, Evan Charleston, testified that he saw

1 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

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a car in his rearview mirror passing other cars. He estimated the car’s speed at

100 miles per hour, given how quickly it caught up to him. Charleston testified the

car began to pull out around him when it collided with a motorcycle in the

oncoming lane.

A fire truck, an ambulance, and officers from the Pierce County Sheriff’s

Office and Washington State Patrol (WSP) responded to the scene. One of the

investigators, WSP Trooper Shannon Beeler, observed the area of the incident

was a “two-lane state route” with a “double-yellow center line separat[ing] both

lanes,” and the northbound lane went uphill, with a “sweeping curve to the right.”

Her findings included that Petersen’s car was traveling in the southbound lane of

travel when it lost control, went sideways, and collided with oncoming traffic.

Evidence from the scene indicated it was a high-speed collision and the car was

traveling faster than the posted limit of 55 miles per hours.

Trooper Ian Morhous, a certified technical specialist in collision

reconstruction with WSP, also responded to the scene. Morhous testified

Petersen’s vehicle appeared to travel into the wrong lane, and then shortly before

the roadway straightened out, the vehicle started to rotate and collided with the

motorcycle traveling in the southbound lane. The type of damage Morhous

observed at the scene was of the type typically associated with high-speed

collisions.

Petersen was extracted from his Honda Civic and transported to an

ambulance for medical aid. At about 9:15 p.m., shortly after he arrived at the

scene, WSP Trooper Jamon York contacted Petersen, who was at that point in

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the ambulance. York was able to interact with Petersen through a side door of

the ambulance. York further testified that multiple other people were in the

ambulance with Petersen as they were treating him. Upon first speaking with

Petersen, York identified himself and stated that the contact was being recorded,

told Petersen he had been in an accident, and asked him if he had been drinking.

According to York, this last question was part of a standard procedure in

investigations of collisions that involve serious injury or fatalities. Petersen first

appeared confused and responded, “What collision?” Asked a second time if he

had been drinking, Petersen responded that he drank whiskey earlier that day.

During this interaction, York noticed Petersen’s eyes were bloodshot and watery

and that his face was flushed in color, indicating he was perhaps under the

influence of alcohol. York terminated the interaction within a few minutes, as

paramedics made it clear they needed to get Petersen to the hospital. York then

followed the ambulance to St. Joseph’s Hospital.

York arrived at the hospital 20 to 25 minutes later. He testified that when

he first entered Petersen’s room, there were five to seven people working on

Petersen, and they were speaking amongst themselves. York further testified he

was able to observe the same indicators of possible intoxication that he had

previously observed. At that point, York placed Petersen under arrest for driving

under the influence and proceeded to read Petersen his Miranda rights. York

testified that Petersen indicated he understood those rights, he did not express

any confusion regarding his rights, and agreed to speak to law enforcement.

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Because the collision involved a fatality, WSP Sergeant Joe Gannon, a

drug recognition expert, was assigned to contact Petersen. Gannon spoke with

York on the phone and asked York if he had probable cause for the arrest. Then,

at the hospital, Gannon met with York and confirmed York had probable cause

and had advised Petersen of his rights approximately 15 minutes earlier. Gannon

did not reread Petersen his Miranda rights, as York told Gannon he had just read

them to Petersen. Gannon introduced himself to Petersen and told him he was

there to speak to him as a drug recognition expert. According to Gannon,

Petersen did not display any confusion regarding his rights and assented to

answering questions.

Petersen told Gannon that after dropping off his children in Eatonville,

Washington he was traveling on State Route 7. He said a silver vehicle

attempted to pass him at a high rate of speed and there was another vehicle

following him very closely. While between these two vehicles, the silver car

ahead of him applied its brakes suddenly at the bottom of a turn, forcing him to

take evasive action to avoid a collision.

Petersen also admitted to Gannon that he had had four shots of whiskey

earlier in the day from approximately 1:00 to 3:20 p.m. Petersen also consented

to Gannon’s administering a horizontal gaze nystagmus (HGN) test. 2 Gannon

testified that Petersen exhibited six out of six clues on the HGN test. He further

2 “Nystagmus is the involuntary oscillation of the eyeballs, which results from the body’s

attempt to maintain orientation and balance.” State v. Baity, 140 Wn.2d 1, 19 n.3, 991 P.2d 1151

(2000). “HGN is the inability of the eyes to maintain visual fixation as they turn from side to side or

move from center focus to the point of maximum deviation at the side.” Id.

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reported noticing other indicators of intoxication, including bloodshot, watery eyes

and an angled onset at about 35 degrees.

The State initially charged Petersen with vehicular homicide by two

alternative means, alleging he drove his vehicle “while under the influence of

intoxicating liquor and/or drugs” or “operate[d] a motor vehicle in a reckless

manner,” and that while so operating the vehicle, he caused injuries to Beschta

that resulted in his death. The State filed an amended information on

November 7, 2022, which added a third alternative means of committing

vehicular homicide to the charge, driving with a disregard for the safety of others.

The State moved to admit Petersen’s statements to York in the ambulance

and to Gannon at the hospital under CrR 3.5. After hearing testimony, regarding

the ambulance interaction, the trial court found while in the ambulance, Petersen

was contacted by York; York testified that others were around the ambulance

and he approached Petersen from a side door; and York was about four feet

away from the defendant and was outside of the ambulance. Further, the court

found York asked Petersen several questions about consuming alcohol, which

was York’s general practice in serious accidents, and York was able to speak to

Petersen only for a few minutes. Based on these facts, the trial court concluded

Petersen was not in custody at the time he made statements in the ambulance

and, thus, those statements were admissible.

Additionally, regarding the hospital interaction, the trial court found that

shortly after York arrived, he placed Petersen under arrest and read him his

Miranda rights; Petersen acknowledged and waived those rights; and York

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indicated the waiver on a preprinted form. The court found that York then left the

hospital room to draft a warrant for a blood sample and passed Gannon in the

hallway of the hospital, and Gannon spoke to Petersen within 15 minutes of

York’s reading Petersen his Miranda warnings. During this interaction, Gannon

asked Petersen questions about his consumption of alcohol and the collision.

Finally, the court found that Petersen did not express any confusion about his

Miranda rights during the questioning by Gannon. Thus, regarding the

statements Petersen made at the hospital, the court concluded Petersen

knowingly, intelligently, and voluntarily waived his rights, and the time period

between when York read Petersen his rights and Gannon speaking to him was

too short to necessitate a second reading of Miranda rights. The trial court

concluded, “For purposes of Miranda, statements made by [Petersen] post

Miranda waiver regarding consumption of alcohol and details of the collision are

admissible.”

The jury found Petersen guilty of vehicular homicide. The jury also

returned a special verdict indicating that it was “not unanimous” as to the first

means, whether Petersen operated a motor vehicle while under the influence of

intoxicants, but that it found Petersen guilty as to the other two means, i.e., it

found that at the time of causing the injury resulting in death, Petersen was (1)

operating a motor vehicle in a reckless manner and (2) operating a motor vehicle

with disregard for the safety of others.

The court imposed a standard range sentence of 78 months, followed by

18 months of community custody. Petersen requested the court award him credit

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for time spent on electronic home monitoring (EHM), which the court declined to

do.

Petersen timely filed a notice of appeal.

DISCUSSION

Petersen challenges his convictions based on the admission of his

statements to York and Gannon, which he claims violated his Miranda rights

because he was in custody when he made initial inculpatory statements, and

because he did not knowingly, intelligently, and voluntarily waive his rights after

being arrested. He additionally challenges the sufficiency of the evidence for his

conviction and asserts the trial court erred when it denied him credit for time

served on a form of electronic home monitoring. Finally, through a SAG,

Petersen claims ineffective assistance of counsel for several reasons.

I. Admission of Petersen’s Statements to Police

The federal and Washington State Constitutions guarantee the right

against self-incrimination. U.S. CONST. amends. V, VI, XIV; WASH. CONST. art. I,

§ 9. Miranda warnings were developed to protect the right against self-

incrimination “while in the coercive environment of police custody.” State v.

Heritage, 152 Wn.2d 210, 214, 95 P.3d 345 (2004). “Even in the absence of

explicit coercion, when the government significantly curtails an individual’s

freedom of action, the individual may be effectively compelled to speak when, in

a freer setting, they would exercise their right to remain silent.” State v.

Escalante, 195 Wn.2d 526, 532, 461 P.3d 1183 (2020) (citing Miranda, 384 U.S.

at 455-56). Thus, Miranda requires that before a custodial interrogation, the

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police must inform a suspect of their right to remain silent and their right to the

presence of an attorney. Escalante, 195 Wn.2d at 532.

Without Miranda warnings, incriminating statements made during custodial

interrogation may not be used as evidence against the person in a criminal trial.

Escalante, 195 Wn.2d 532. To determine whether a statement obtained in a

custodial interrogation is admissible, the court must “ascertain whether the

accused in fact knowingly and voluntarily decided to forgo [their] rights to remain

silent and to have the assistance of counsel.” State v. Unga, 165 Wn.2d 95, 100,

196 P.3d 645 (2008) (quoting Fare v. Michael C., 442 U.S. 707, 724-25, 99 S. Ct.

2560, 61 L. Ed. 2d 197 (1979)).

Here, Petersen challenges the court’s admission of statements he made

to officers at two different points: first, while he in the ambulance, before being

given Miranda warnings, and, second, after York read him his rights, while he

was in the hospital.

A. Whether Petersen Was in Custody While Questioned in the Ambulance

Petersen claims the trial court erred by concluding he was not in custody

when questioned by York in the ambulance. York asked Petersen several

questions about how much alcohol Petersen possibly consumed that day.

Petersen was initially confused concerning the questioning but eventually

responded that he drank a shot of whiskey earlier that day. Petersen argues York

questioned him as part of a criminal investigation, which signaled Petersen was

not free to leave. The State contends that the fact that the restriction of

Petersen’s movement was not police-created is dispositive in determining

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No. 86614-1-I/9

Petersen was not in custody. We agree with the State that York’s questioning of

Petersen in the ambulance was not a custodial interrogation.

Petersen does not challenge any of the trial court’s findings of fact, so they

are verities on appeal. See State v. Hill, 123 Wn.2d 641, 644, 870 P.2d 313

(1994) (unchallenged findings of fact are considered verities on appeal). Whether

Petersen was in custody is a question of law the court reviews de novo. See

State v. Lorenz, 152 Wn.2d 22, 30, 36, 93 P.3d 133 (2004).

In the context of Miranda, “custodial” refers to “whether the defendant’s

movement was restricted at the time of questioning.” Lorenz, 152 Wn.2d at 36.

The objective measure of custody is whether a reasonable person would believe

they are in custody “to a degree associated with formal arrest.” Id. at 36-37. The

court considers the totality of the circumstances, including the “nature of the

surroundings, the extent of police control over the surroundings, the degree of

physical restraint placed on the suspect, and the duration and character of the

questioning.” Escalante, 195 Wn.2d at 534. Whether questioning occurs in public

can also be relevant. Id. (noting that the public nature of a roadside stop “reduces

the ability of a police officer to use improper means to elicit a confession and

reduces a driver’s fear that they will be abused if they do not cooperate”). “The

subjective views of the interrogating officers are irrelevant, except to the extent

those views are communicated to the suspect in some way and would influence

a reasonable person’s perception of the situation.” Id. The custody inquiry simply

asks “whether an individual was put in an environment that ‘present[s] a serious

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danger of coercion.’ ” Id. at 536 (quoting Howes v. Fields, 565 U.S. 499, 508-09,

132 S. Ct. 1181, 182 L. Ed. 2d 17 (2012)).

The State relies on two cases to support its argument that when police do

not cause the restraint, the defendant is not in custody. First, in State v. Kelter,

the defendant was interviewed in his hospital room the day following a car crash

that resulted in two fatalities. 71 Wn.2d 52, 53, 426 P.2d 500 (1967). The court

held the defendant was not in custody despite being confined to his hospital

room because “there was no compelling atmosphere of in-custody

interrogation[,] . . . no competent evidence was offered to show that the

defendant was not in full possession of his faculties,” and the defendant was not

“placed under arrest or otherwise restrained by the police in any manner.” Id. at

54. 3

Similarly, in State v. Butler, when the defendant was interviewed by the

police, he was bed-bound in a hospital due to two gunshot wounds in association

with a robbery. 165 Wn. App. 820, 828, 269 P.3d 315 (2012). He was in a coma

for several days before police could speak to him. Id. at 825. The nurse assigned

to the defendant controlled access to him, and he concluded the defendant was

well enough to speak to detectives despite being on pain medication and

required to lay flat in bed. Id. The court held that when considering the totality of

3 Petersen argues Kelter is not controlling because the defendant in that case was tried

before Miranda was decided, and, thus, the analysis was under the exclusionary rule announced

in Escobedo v. Illinois, 378 U.S. 478, 84 S. Ct. 1758, 12 L. Ed. 2d 977 (1964). See Kelter, 71

Wn.2d at 53 (“we are only concerned on this appeal with the rule as announced in Escobedo”).

However, the court also noted that “[c]ustodial interrogation is an essential element of the

Escobedo exclusionary rule” because in Miranda, “the court re-asserted its tenets.” Kelter, 71

Wn.2d at 54. Moreover, the court in State v. Butler, a 2012 post-Miranda decision, relied on the

Kelter court’s reasoning to arrive at the conclusion that the defendant was not in custody. 165

Wn. App. 820, 827-28, 269 P.3d 315 (2012).

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No. 86614-1-I/11

the circumstances, the defendant was not in “custody,” because, like the

defendant in Kelter, Butler “was restricted to his hospital room because of his

injuries” and not by the police. Id. at 828. Additionally, the defendant was not

under arrest, and there were not any police stationed inside or outside his room.

Id. The court reasoned this interaction did not amount to the type of police-

dominated atmosphere against which Miranda was intended to protect. Id.

Instead, “ ‘[c]ustody’ depends on ‘whether the defendant’s movement was

restricted at the time of questioning,’ and necessarily that the police restricted

that movement.” 165 Wn. App. at 827 (quoting State v. Lorenz, 152 Wn.2d at 36-

37).

Considering the totality of the circumstances, we conclude that Petersen

was not in custody for Miranda purposes when questioned by York while on a

gurney in the back of an ambulance. Similar to the defendants in Kelter and

Butler, Petersen was restricted at the time of questioning not by police, but

because of his own medical needs. Even though there were numerous other

people present at the accident scene, including WSP investigators, they were

there to address other aspects of the accident. Petersen’s environment was not

“police-dominated”; York was the only officer directly engaged with questioning

Petersen, and he was outside the ambulance approximately four feet away from

Petersen. 4 Petersen was not under any physical restraint by police, such as

handcuffs, nor was he formally arrested. York asked minimal questions. The

4 Petersen also asserts there was more than one State patrol trooper present during this

interaction. However, Petersen’s citation to the record is not accurate on this point, and this fact

was not in the trial court’s findings of fact, York’s testimony or Petersen’s testimony.

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presence of other non-police personnel, approximately three paramedics who

were working on him, and the public nature of the questioning further reduced the

likelihood of improper means to elicit a confession. A reasonable person under

these circumstances would not believe they were in custody to a degree

associated with formal arrest. Thus, the court properly admitted York’s testimony

about Petersen’s responses to questioning while he was in the ambulance.

B. Whether Petersen Waived His Miranda Rights in the Hospital

Petersen also contends the trial court erred by concluding he had made a

knowing, voluntary, and intelligent waiver of his Miranda rights before speaking

with Gannon at the hospital. The State counters that Petersen was correctly

advised of his constitutional rights, did not indicate confusion concerning those

rights, and subsequently waived those rights. We agree with the State.

Again, Petersen does not challenge any of the trial court’s relevant

findings of fact, so they are verities on appeal. See Hill, 123 Wn.2d at 644. As

Petersen challenges the court’s ruling only to the extent that he claims the court

erred in its legal conclusion that Petersen’s waiver of Miranda was voluntary, our

review is de novo. State v. Campos-Cerna, 154 Wn. App. 702, 708 n.4, 226 P.3d

185 (2010) (when defendant challenged the findings and conclusions “to the

extent that the trial court erred in its legal view of the Miranda waiver’s additional

juvenile advisement of rights language, our review [wa]s de novo”).

“[A] confession is voluntary, and therefore admissible, if made after the

defendant has been advised concerning rights and the defendant then knowingly,

voluntarily and intelligently waives those rights.” State v. Aten, 130 Wn.2d 640,

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663, 927 P.2d 210 (1996) (citing Miranda, 384 U.S. 436). “To be voluntary for

due process purposes, the voluntariness of a confession is determined from a

totality of the circumstances under which it was made.” Id. at 663-64. We

consider factors including “a defendant’s physical condition, age, mental abilities,

physical experience, and police conduct.” Id. at 664. The State bears the burden

to show that the suspect knowingly, intelligently, and voluntarily waived their

Miranda rights. State v. Athan, 160 Wn.2d 354, 380, 158 P.3d 27 (2007).

Petersen relies on Mincey v. Arizona, 437 U.S. 385, 98 S. Ct. 2408, 57 L.

Ed. 2d 290 (1978), to assert he was not well enough to voluntarily waive his

constitutional rights, and instead his will was overborne. There, a detective

repeatedly questioned the defendant, Mincey, despite Mincey’s being seriously

wounded just a few hours earlier and “depressed almost to the point of coma.” Id.

at 398. Mincey was unable to provide coherent answers, as evidenced by review

of his written responses, and was heavily encumbered by tubes, needles, and

breathing apparatus. Id. at 399. He also repeatedly asked not to be interrogated.

Id. The Court held that the statements Mincey eventually made were not

voluntary, reasoning that Mincey clearly did not want to answer the detective’s

questions, but “weakened by pain and shock, isolated from family, friends, and

legal counsel, and barely conscious, [Mincey’s] will was simply overborne.” Id. at

401-02.

However, a suspect’s will is not always overborne simply by the fact that

he is questioned while in pain or under the effect of medication. See State v.

Peerson, 62 Wn. App. 755, 774, 816 P.2d 43 (1991); United States v. George,

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987 F.2d 1428, 1430 (9th Cir. 1993). For example, in Peerson, the defendant

sought to suppress statements he made while in the hospital, including

conversations overheard by the 24-hour surveillance team stationed near him

after his arrest and direct comments to an officer. Id. at 771-72. Peerson

attempted to argue that his physical pain, depression, and medicated state,

among other things, “were the functional equivalent of the interrogation found to

be unconstitutional in Mincey.” Id. at 773. We disagreed, reasoning that a

necessary element in Mincey was the “officer’s unrelenting interrogation which

continued even after Mincey repeatedly asked the officer to stop the questioning

and get him an attorney,” whereas in Peerson, the officer posed no question to

the defendant and there was no evidence that the officer “acted in any way or

said anything that was reasonably likely to elicit an incriminating response.” Id. at

773. As Peerson did not argue that the severity of his condition prohibited him

from perceiving the nature of his acts and words, the court held that “while [his]

emotional and physical state may affect the weight the jury attributes to the

statements, those factors do not affect their admissibility.” Id. at 774.

Here, the trial court’s unchallenged findings of fact after the CrR 3.5

hearing included that York placed Petersen under arrest shortly after they arrived

at the hospital. 5 Afterward, York advised Petersen of his constitutional rights,

reading from his department-issued card. The court found that Petersen

5 The record does not indicate the specific amount of time between York’s arrival at the

hospital and the arrest. Trooper York responded to the scene around 9 p.m., left the scene

around 9:20 p.m., arrived at the hospital 20-25 minutes later, and testified that he went straight to

Petersen once he arrived at the hospital. Once he was with Petersen, he determined he was

showing the same indicators of intoxication as before, had probable cause, and arrested him.

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expressed no confusion about his rights. He indicated he understood his rights

and agreed to speak to York. York additionally indicated Petersen’s

acknowledgment of his rights on a pre-printed form.

After York left the hospital room, he told Gannon that he had advised

Petersen of his Miranda rights. Gannon then spoke to Petersen within 15 minutes

after York had read Petersen his Miranda rights. During that interaction, Gannon

asked Petersen questions about his consumption of alcohol and the collision.

Even if, unlike the officers in Peerson, York and Gannon both posed questions to

Petersen, Petersen was not repeatedly questioned while “barely conscious,” as

was Mincey. The only indication of the severity of Petersen’s injuries was the

amount of time he spent in the hospital, which was around two hours. Given the

brevity of the visit, Petersen’s verbal acknowledgment of receiving and

understanding the Miranda warnings and his agreement to speak to Gannon, the

unchallenged facts support the trial court’s conclusion that Petersen voluntarily,

knowingly, and intelligently waived his rights before speaking to Gannon. Thus,

the court did not err by admitting testimony about Petersen’s statements to

Gannon.

II. Sufficiency of Evidence

The jury found Petersen guilty of vehicular homicide and found by special

verdict two alternative means: he operated a motor vehicle (1) in a reckless

manner and (2) with disregard for the safety of others. Petersen claims there was

insufficient evidence of either alternative means. RCW 46.61.520. We disagree.

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Due process requires that the State prove every element of a crime

beyond a reasonable doubt. State v. Johnson, 188 Wn.2d 742, 750, 399 P.3d

507 (2017). Whether sufficient evidence supports a defendant’s conviction is a

question of law reviewed de novo. State v. Rich, 184 Wn.2d 897, 903, 365 P.3d

746 (2016) (citing State v. Berg, 181 Wn.2d 857, 867, 337 P.3d 310 (2014)). To

determine whether sufficient evidence supports a conviction, an appellate court

must “view the evidence in the light most favorable to the prosecution and

determine whether any rational fact finder could have found the elements of the

crime beyond a reasonable doubt.” State v. Homan, 181 Wn.2d 102, 105, 330

P.3d 182 (2014). A claim of insufficient evidence admits the truth of the State’s

evidence and all reasonable inferences from that evidence. State v. Salinas, 119

Wn.2d 192, 201, 829 P.2d 1068 (1992). All reasonable inferences must be

interpreted in favor of the State and most strongly against the defendant. Id. at

201.

Vehicular homicide may be proved in three alternative ways:

(1) When the death of any person ensues within three years as a

proximate result of injury proximately caused by the driving of any

vehicle by any person, the driver is guilty of vehicular homicide if

the driver was operating a motor vehicle:

(a) While under the influence of intoxicating liquor or any

drug, as defined by RCW 46.61.502; or

(b) In a reckless manner; or

(c) With disregard for the safety of others.

RCW 46.61.520. The State charged Petersen with all three alternative means

under subsections (1)(a), (b), and (c). The jury did not find that Petersen drove

while under the influence, the first alternative means, so this is not an issue on

appeal.

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A. Operating a Motor Vehicle in a Reckless Manner

Driving “in a reckless manner” means “driving in a rash or heedless

manner, indifferent to the consequences.” State v. Roggenkamp, 153 Wn.2d 614,

618, 106 P.3d 196 (2005). Petersen contends “the defining actions of driving in a

‘rash or heedless manner indifferent to the consequences’ are largely lacking.”

He argues that his actions must have been “egregious, involving speeding or

engaging in notably dangerous behavior” to satisfy the reckless standard, but

without citing to authority. We disagree.

The State highlights several cases in which consuming alcohol was

relevant to prove driving in a reckless manner. In State v. Fateley, the defendant

appealed a negligent homicide conviction. 6 18 Wn. App. 99, 103, 566 P.2d 959

(1977). The court found there was sufficient evidence to conclude the defendant

drove his vehicle in a reckless manner based in part on the “more than sufficient

evidence of intoxication.” Id. Further, the court in Fateley noted that “[s]uch

evidence has been considered relevant in proving negligent driving, State v.

Birch, 183 Wn. 670, 49 P.2d 921 (1935), and in proving reckless driving, State v.

Travis, 1 Wn. App. 971, 465 P.2d 209 (1970).” Fateley, 18 Wn. App. at 103 n.5.

6 The negligent homicide statute at issue in Fateley contains the same language as the

statute in this case:

RCW 46.61.520 states:

“Negligent homicide by motor vehicle—Penalty. (1) When the death of

any person shall ensue within three years as a proximate result of injury received

by the driving of any vehicle by any person while under the influence of or

affected by intoxicating liquor or drugs, or by the operation of any vehicle in a

reckless manner or with disregard for the safety of others, the person so

operating such vehicle shall be guilty of negligent homicide by means of a motor

vehicle.”

18 Wn. App. at 100 n.2.

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Similarly, in State v. Hill, the court affirmed defendant’s conviction for

vehicular assault where there was evidence she was intoxicated. 48 Wn. App.

344, 347-48, 739 P.2d 707 (1987). Hill argued that driving the wrong way on a

freeway was only a traffic infraction, so she could be guilty only of negligence. Id.

The court disagreed, reasoning that although the statute does not define

“reckless manner,” case law defines it as driving in a “heedless, careless or rash

manner or in a manner showing indifference to the consequences.” Id. at 348

(citing State v. Partridge, 47 Wn.2d 640, 645-46, 289 P.2d 702 (1955), and

Fateley, 18 Wn. App. at 105-06). The court then concluded that the evidence

satisfied this definition, as it showed Hill was driving the wrong way on the

freeway, failed to attempt any avoidance of oncoming traffic, and was intoxicated.

Hill, 48 Wn. App. at 348.

In this case, there was ample evidence that Petersen was intoxicated. 7

Petersen admitted he had consumed at least four shots of whiskey earlier in the

day. York and Gannon testified they observed Petersen had bloodshot, watery

eyes and a flushed face, which are indicators of intoxication. In addition,

Petersen exhibited six out of six clues on the HGN test administered by Gannon,

indicating he may have been impaired while driving.

Petersen also argues that neither Charleston’s nor Trooper Beeler’s

testimony was sufficient to establish that he was speeding at the time of the

7 While the jury did not find Petersen guilty of the first alternative means, vehicular

homicide “while under the influence of intoxicating liquor or any drug,” RCW 46.61.520(a), for

purposes of analyzing a sufficiency challenge, the jury’s finding does not guide our review on

appeal. Instead, as noted above, we “view the evidence in the light most favorable to the

prosecution and determine whether any rational fact finder could have found the elements of the

crime beyond a reasonable doubt.” Homan, 181 Wn.2d at 105.

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accident. Charleston estimated Petersen was speeding due to how quickly he

caught up to Charleston’s vehicle right before the accident. Beeler, an expert in

accident reconstruction, opined that Petersen was traveling in excess of 55 miles

per hour—the posted speed limit—though she could not verify exactly how fast

Petersen was going. In addition, WSP Troopers Beeler and Morhous, both of

whom had experience in collision reconstruction, testified that the damage to the

car and motorcycle was associated with a “high-speed collision.”

In addition to this testimony that Petersen drove at a high rate of speed,

there was also evidence he passed several cars in a no-passing zone with an

upcoming downhill turn. Petersen acknowledged he was familiar with this area of

highway, which included a hill with a turn that required special care. Beeler and

Morhous testified that Petersen traveled over the double-yellow center line into

the wrong way of traffic, lost control, and collided with the motorcycle.

When viewed in the light most favorable to the State and most strongly

against Petersen, any rational fact finder could have found beyond a reasonable

doubt Petersen was driving in a rash or heedless manner, indifferent to

consequences. Thus, the evidence was sufficient to prove vehicular homicide

based on driving in a reckless manner.

B. Vehicular Homicide – Disregard for Safety of Others

Petersen was also convicted of vehicle homicide under the alternative

means of driving “with disregard for the safety of others.” RCW 46.61.520(1)(c).

RCW 46.61.520(1)(c) “implies an aggravated kind of negligence or carelessness,

falling short of recklessness but constituting a more serious dereliction than the

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hundreds of minor oversights and inadvertences encompassed within the term

‘negligence.’ ” State v. Eike, 72 Wn.2d 760, 765-66, 435 P.2d 680 (1967). “Some

evidence of a defendant’s conscious disregard of the danger to others is

necessary to support a charge of vehicular homicide.” State v. Vreen, 99 Wn.

App. 662, 672, 994 P.2d 905 (2000), aff’d, 143 Wn.2d 923, 26 P.3d 236 (2001),

abrogated on other grounds by Rivera v. Illinois, 556 U.S. 148, 129 S. Ct. 1446,

173 L. Ed. 2d 320 (2009). Ordinary negligence cannot support a conviction for

vehicular homicide. Eike, 72 Wn.2d at 765.

Cases affirming convictions for driving with disregard for the safety of

others generally include evidence of egregious driving errors, such as travelling

on the wrong side of the road. In Eike, the defendant was “driving at 45 to 50

miles per hour on a dark, wet, but well-marked highway, rounding a sweeping

curve on the wrong side of the road at night, into a head on collision with an

oncoming car.” 72 Wn.2d at 766. In State v. Knowles, the defendant admitted to

smoking marijuana and drinking beer before the accident, and he “drove into a

blind curve, in the wrong lane, at a speed of at least 22 miles per hour over the

posted cautionary speed.” 46 Wn. App. 426, 431, 730 P.2d 738 (1986).

Petersen argues that while the evidence shows he was travelling fast, this

evidence does not contradict his testimony that his vehicle entered into the

opposite lane due to the vehicle in front of him suddenly braking and causing him

to swerve to avoid hitting that vehicle. Petersen testified that attempting to take

this evasive action caused the back part of his vehicle to slide into the oncoming

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southbound lane—possibly due to wet conditions—which is where he collided

with the motorcyclist.

Despite Petersen’s testimony about a possible different cause for his

swerving, with the evidence viewed in the light most favorable to the prosecution,

we conclude any rational fact finder could have found beyond a reasonable doubt

that Petersen operated his vehicle with disregard for the safety of others. “[T]he

jury is permitted to consider all the circumstances leading” to Petersen’s vehicle

entering into the opposite lane of traffic and to determine whether either scenario

amounted to aggravated negligence. State v. Imokawa, 4 Wn. App. 2d 545, 561,

422 P.3d 502 (2018), rev’d on other grounds, 194 Wn.2d 391, 450 P.3d 159

(2019) (finding there was sufficient evidence to prove the defendant operated his

vehicle with disregard for the safety of others). As with the drivers in Eike and

Knowles, there was evidence here that Petersen was driving at a high rate of

speed as he approached a steep turn. Petersen acknowledged he was familiar

with the road and knew that the hill and the turn required special care. It was

undisputed that the sun was setting and it was getting dark. Further, counter to

Petersen’s own testimony, other evidence suggested Petersen drove

intentionally in the oncoming lane of traffic in an attempt to pass other vehicles

and that the conditions were dry. Taken in the light most favorable to the

prosecution and admitting the State’s evidence as true—with all reasonable

inferences interpreted in favor of the State and most strongly against the

defendant—we conclude there was sufficient evidence to support the vehicular

homicide conviction.

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III. Failure to Award Credit for Time Served on Electronic Home

Monitoring

Petersen argues the trial court erred when it denied his request for credit

for time spent on voluntary electronic home monitoring (EHM) for approximately

a year before his conviction. The State counters that because Petersen was

convicted of a violent crime, Petersen is ineligible to receive credit for any time

he was required to comply with an electronic monitoring program prior to

sentencing.

Whether a defendant is entitled to credit for time served while on home

monitoring is a question of law we review de novo. See State v. Swiger, 159

Wn.2d 224, 227, 149 P.3d 372 (2006). The State cites RCW 9.94A.734(1)(a),

which states, “Home detention may not be imposed for offenders convicted of the

following offenses . . . (a) A violent offense.” However, the appropriateness of a

postconviction confinement for a given crime “is a different issue . . . than

whether the statute affords credit for a type of presentence restraint.” State v.

Speaks, 119 Wn.2d 204, 208, 829 P.2d 1096 (1992) (emphasis added). 8

Neither party cites the applicable statute, RCW 9.94A.505(7)(a), which

directly addresses credit for EHM during sentencing. This provision states, “The

8 The Sentencing Reform Act of 1981 requires a sentencing court to credit a felony

defendant’s sentence for presentence time spent in “confinement.” State v. Shelley, 19 Wn. App.

2d 451, 454-55, 496 P.3d 310 (2021). RCW 9.94A.505(6) provides, “The sentencing court shall

give the offender credit for all confinement time served before the sentencing if that confinement

was solely in regard to the offense for which the offender is being sentenced.” “Confinement”

includes “partial confinement,” which includes work release, home detention, work crew,

electronic monitoring, and a combination of work crew, electronic monitoring, and home

detention. Shelley, 19 Wn. App. 2d at 455; RCW 9.94A.030(8), (35). Electronic monitoring is

defined to require “tracking the location of an individual through the use of technology that is

capable of determining or identifying the monitored individual’s presence or absence at a

particular location. . . . .” RCW 9.94A.030(24).

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sentencing court shall not give the offender credit for any time the offender was

required to comply with an electronic monitoring program prior to sentencing if

the offender was convicted of one of the following offenses: (a) A violent

offense; . . . .” Vehicular homicide in a reckless manner is a violent offense. RCW

46.61.520(1); 9.94A.030(58)(a)(xiv).

Because Petersen was convicted of a violent offense, the court properly

declined to credit Petersen for time served while subject to EHM pretrial, as

credit is proscribed by RCW 9.94A.505(7)(a). 9

IV. Ineffective Assistance of Counsel

Petersen contends in his SAG that he was deprived of his constitutional

right to effective assistance of counsel in several ways: his attorney failed to

investigate additional information provided by him, to disclose the State’s

discovery to him, to follow his requests as to how to present the evidence, and to

inform him of the consequences for guilty verdicts or non-guilty pleas. The State

did not respond to these claims. We conclude Petersen’s SAG is insufficient

under RAP 10.10(c) because it does not adequately inform the court of the

nature and occurrence of the alleged errors.

9 The record also indicates an alternative basis for not giving Petersen credit for

qualifying EHM: his pretrial monitoring was limited to a secure continuous remote alcohol monitor

(SCRAM), which is a transdermal alcohol sensing system, worn as an ankle bracelet, that

samples a wearer’s skin surface for ethanol vapor at specific intervals. See PAUL R. MARQUES &

A. SCOTT MCKNIGHT, NAT’L HIGHWAY TRAFFIC SAFETY ADMIN., EVALUATING TRANSDERMAL ALCOHOL

MEASURING DEVICES 6-7 (2007). This style of monitoring does not qualify as EHM under RCW

9.94A.030(24), as it lacks global positioning system (GPS) tracking capabilities.

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No. 86614-1-I/24

For a successful claim of ineffective assistance of counsel, a defendant

must establish both objectively deficient performance and resulting prejudice.

State v. Emery, 174 Wn.2d 741, 754-55, 278 P.3d 653 (2012). To show deficient

performance, the defendant must show that counsel’s representation fell below

an objective standard of reasonableness in light of all the circumstances.

Strickland v. Washington, 466 U.S. 668, 688, 104 S. Ct. 2052, 80 L. Ed. 2d 674

(1984). “Courts engage in a strong presumption counsel’s representation was

effective.” State v. McFarland, 127 Wn.2d 322, 335, 899 P.2d 1251 (1995).

Prejudice requires that “there is a reasonable probability that, except for

counsel’s unprofessional errors, the result of the proceeding would have been

different.” Id. at 334-35. The court need not consider both deficiency and

prejudice if a petitioner fails to prove one. In re Pers. Restraint of Crace, 174

Wn.2d 835, 847, 280 P.3d 1102 (2012).

Petersen alleges a variety of missteps that revolve around a lack of

communication between himself and his counsel, as well as a divergence in

strategy concerning the presentation of Petersen’s case. Petersen states that his

counsel failed to “investigate, gather, and present . . . discovery presented to

defense coun[sel] from [Petersen],” but neither cites to the record nor specifies

what information he is referencing. Petersen also asserts the State’s discovery

was not disclosed to him, but he similarly does not reference the record or

specify what information was not relayed to him.

In a SAG, “[r]eference to the record and citation to authorities are not

necessary or required, but the appellate court will not consider a defendant’s

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No. 86614-1-I/25

statement of additional grounds for review if it does not inform the court of the

nature and occurrence of alleged errors.” RAP 10.10(c). “[T]he appellate court is

not obligated to search the record in support of claims made in a defendant’s

statement of additional grounds for review.” Id. Also, matters outside the record

on direct appeal will not be considered; “[i]f a defendant wishes to raise issues on

appeal that require evidence or facts not in the existing trial record, the

appropriate means of doing so is through a personal restraint petition.”

McFarland, 127 Wn.2d at 335. Petersen’s claims of ineffective assistance of

counsel related to investigation and discovery do not meet the standard set in

RAP 10.10(c).

Second, Petersen alludes to a difference in trial strategy concerning the

presentation of the case and asserts this divergence “could have had [an] effect

on [the] verdict from [the] jury.” But again, Petersen did not provide details

concerning the allegedly deficient trial strategy as required for this court to

consider his claims under RAP 10.10(c).

Finally, Petersen asserts he was not made aware of the “possible

outcome of [the] verdict for guilty or non guilty plea[s].” Because this claim

requires evidence that is not in the existing trial record, we cannot consider it on

appeal. See McFarland, 127 Wn.2d at 335. Due to these deficiencies, we do not

consider Petersen’s ineffective assistance of counsel claims.

CONCLUSION

We affirm Petersen’s conviction for vehicular homicide and his sentence.

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No. 86614-1-I/26

WE CONCUR:

26