SPOKANE — The Washington State Court of Appeals, Division III, affirmed the convictions of a Moses Lake man who was found guilty by a jury of attempting to elude a police officer and vehicle prowling.

On Aug. 26, 2014 a sergeant with the Moses Lake Department attempted to apprehend a motorcycle holding two people. The sergeant was unable to stop the motorcycle and ended the pursuit when the motorcycle drove through a residential area at a high speed.

Two hours later a man called 911 stating someone was in his pickup truck, while another person was waiting nearby on a motorcycle. A MLPD officer responded and the two suspects fled on the motorcycle. The motorcycle eventually crashed after a pursuit and the occupants were taken into custody.

Andrew Gilbert, 34, was identified as the motorcycle driver during the second pursuit and Grant County prosecutors charged him with two counts of attempting to elude, for both the earlier eluding incident with the MLPD sergeant and the later pursuit, and second-degree vehicle prowling. The first eluding charge was ultimately dismissed, as prosecutors could not prove Gilbert was the driver during the first pursuit.

The rest of the charges were submitted to the jury for consideration. The jury was instructed of the charge of eluding “as charged in count 1 (the dismissed charge)” and the verdict form similarly read “as charged in count 1.” Gilbert was convicted on both of the submitted charges and later appealed the decision.

“The sole challenge raised in this appeal concerns the attempting to elude count,” wrote the judges. “Mr. Gilbert argues that because the jury instruction and verdict referred to the eluding ‘as charged in count 1’ when in fact, count 1 had already been dismissed, there is no valid verdict on the eluding charge.”

Gilbert contended the case was controlled by a previous decision in State v. Rooth, but the appeal court judges ruled the similarities between Gilbert’s case and the error in Rooth are “superficial” and the error in Rooth did not occur in Gilbert’s matter.

It was Gilbert’s contention that the language of “as charged in count 1” used in the eluding count instructions should have been read to refer to the dismissed eluding charge, instead of the eluding charge that was presented to the jury.

The judges state that there is no indication the jury was notified about the charging document or the numbering of the counts in the documents. They said the court’s preliminary instructions do not refer to the charges before the jury and the court’s “written instructions likewise only reference a single eluding charge rather than the two similar counts described in the charging document.”

In addition, they state the jury only decided on a single eluding charge and there was no possibility of confusion between similar charges, as which might have happened in Rooth, the judges said. The jury was told to consider if prosecutors proved the elements of an attempting to elude count committed on Aug. 27, 2014 “as charged in count 1.” The returned verdict from referred to the eluding “as charged in count 1” as well.

“The elements instruction and the verdict form were internally consistent, even if denominating the 'count 1' eluding charge differently that it had been alleged in the charging document,” reads the decision. “We see no risk of jury confusion here. The panel was properly instructed solely on one count of attempting to elude and returned a single verdict on a single eluding charge. If there were any error here at all, it was a mere clerical error. Mr. Gilbert’s right to a jury determination of the charge against him was not impinged in the slightest.”

Richard Byrd can be reached via email at city@columbiabasinherald.com.