Schilling appeals from a conviction for attempting to elude a
police vehicle, primarily arguing that the statute is
unconstitutionally vague under recent United States Supreme
Court precedent. We affirm the conviction, but remand to
strike two financial obligations.
case has its genesis in a vehicle chase that began after
Deputy Sheriff Spencer Rassier observed a speeding Mercury
Cougar on Farr Road in Spokane Valley. He attempted to stop
the vehicle, but the driver of the Cougar refused to stop and
sped away. During a U-turn, Rassier was able to see and
identify the driver as Mr. Schilling. The fleeing vehicle
ultimately reached speeds of 80 to 100 mp.h. in a 35 mp.h.
zone. Officer Rassier eventually called off the pursuit when
it neared a hospital because Schilling was driving
thereafter, a deputy sheriff, Randy Watts, observed the
vehicle crash while crossing train tracks. The vehicle
suffered significant front end damage. The driver was not in
sight, so Watts waited for Deputy Tyler Kullman and his dog,
Kahn, to arrive. Kahn tracked from the open driver's door
and soon located Mr. Schilling on a ridgeline of a nearby
Deputy Kullman, when asked at trial, explained how the dogs
Our dogs are trained to find human odor, especially when
someone is running from us or trying to hide, they produce
what we call a fear scent. They can't not produce it.
Your armpits start sweating, all this stuff starts happening,
your adrenaline's going, and a seasoned dog like Kahn,
they pick up on that fear scent really quickly along with
just the human scent they're trained from day one to
of Proceedings (RP) at 61. His testimony also explained how a
person's scent, made up of the skin cells humans
constantly shed, mixes with that of the newly disturbed
ground to produce a unique, fresh scent for the dog. RP at
Schilling testified that he was a passenger in the car who
urged the driver, an unnamed friend, to stop driving
dangerously while fleeing the police. He had to exit out the
driver's door because the passenger door was damaged. He
fled because he knew there was a warrant for his arrest.
jury found Mr. Schilling guilty. After the trial court
imposed a standard range sentence, he timely appealed to this
court. A panel heard oral argument of the case.
appeal presents a vagueness challenge to the eluding statute,
alleges that two of the deputies provided improper opinion
testimony, and contests two of the financial assessments of
the judgment and sentence. We address the three claims in the
Schilling initially argues that the "driving in a
reckless manner" element of the eluding statute is
unconstitutionally vague in light of Johnson v. United
States, 576 U.S. ___, 135 S.Ct. 2551, 192 L.Ed.2d 569
(2015). We conclude that Johns ...