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State v. Schilling

Court of Appeals of Washington, Division 3

June 4, 2019

STATE OF WASHINGTON, Respondent,
v.
DEREK W. SCHILLING, Appellant.

          KORSMO, J.

         Derek 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.

         FACTS

         This 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 "recklessly."

         Shortly 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 hill.

Deputy Kullman, when asked at trial, explained how the dogs track humans:
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 track.

         Report 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 57-59.

         Mr. 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.

         The 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.

         ANALYSIS

         This 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 stated order.

         Eluding Statute

         Mr. 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 ...


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