STATE v. PHILLIPS

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Court of Appeals of Washington,Division 2.

STATE of Washington, Respondent, v. Kevin Michael PHILLIPS, Appellant.

No. 29804-0-II.

Decided: October 05, 2004

Craig Paul Lindsay, Kitsap Co. Prosecutors Office, Port Orchard, WA, for Respondent. James Lewis Reese, Attorney at Law, Port Orchard, WA, for Appellant.

PART PUBLISHED OPINION

A jury convicted Kevin Michael Phillips of vehicular homicide and vehicular assault.  RCW 46.61.520, .522.   One of Phillips's passengers died at the scene and the other was critically injured when the car Phillips was driving crossed the centerline, left the road, and crashed into a telephone pole, shearing the pole in two.   On appeal, Phillips challenges the trial court's ruling allowing the State's accident reconstruction expert to testify using computer assisted reconstruction calculations.   We affirm.

FACTS

On September 29, 2001, Phillips was driving on a rural road in Kitsap County with two passengers, Perry Dieckmann and Joseph Lanning.   The speed limit on the road was 40 mph.   The weather was clear and the road was dry.   At approximately 10:40 p.m., Phillips's car went off the road and collided with a telephone pole.   Dieckmann, the front-seat passenger, was critically injured and Lanning, the rear-seat passenger, died at the scene.

Shortly after the accident, Kitsap County Sheriff Deputy Russell Clithero went to the scene to investigate.   Clithero noticed that the accident had occurred at a sweeping curve in the road.   Clithero observed tire marks on the eastbound lane, which crossed the centerline and then went off the road.   According to Clithero, where the car left the road, it looked like “a bulldozer [had] ․ cut a path through” the bushes and completely “sheared off” the telephone pole.   IV Report of Proceedings (RP) at 260.   Clithero created a diagram based on this evidence to show how the accident had occurred.

On October 23, 2001, Clithero spoke with Phillips at Phillips's attorney's office.   Phillips told Clithero that he had been driving along the road at 60 mph when he saw a deer enter the road right in front of him.   Phillips said that when he saw the deer, he “slammed on [his] brakes and swerved to the left.”   IV RP at 275.   According to Phillips, this caused the vehicle to turn, and when he attempted to correct the rotation, the car went off the road.   Phillips said that while sliding toward the pole, Dieckmann grabbed the steering wheel and turned it to the right, causing the crash.

On September 25, 2002, the State charged Phillips with one count of vehicular homicide and one count of vehicular assault.   During trial, the State presented John Hunter as an expert witness.   In analyzing the accident, Hunter used PC-Crash, a software program that performs physics calculations from input data to reconstruct and simulate traffic accidents.   Based on Clithero's diagram, Hunter input data into PC-Crash to simulate Phillips's accident.   Hunter adjusted the potential speeds of the vehicle, simulating the vehicle's path over the tire track marks, through the bushes, and hitting the pole.   Based on his analysis, Hunter testified that Phillips's vehicle was traveling at approximately 80 mph when the accident occurred.   Hunter opined that Phillips's failure to negotiate the sweeping curve was due to the vehicle's speed, rather than Phillips's asserted swerving maneuver.

Phillips also presented an expert, Kenneth Cottingham, who was a mechanical engineer.   Cottingham testified that the tire marks at the scene were “yaw marks,” meaning that “[t]he car [was] going sideways, point[ing] one way and sliding and going another way, [simultaneously] rotating.”   VI RP at 530.   Cottingham testified that based on the critical speed analysis on the yaw marks, Phillips's vehicle was traveling at 60 mph at the time of the accident.   Cottingham also opined that the curve did not put the vehicle “into a yaw” and that the vehicle went into a yaw when Phillips suddenly swerved, as he would have done to avoid hitting a deer.   Cottingham testified that once the vehicle went into a yaw, it was “irrevocable.”   VI RP at 550.

The jury convicted Phillips on October 9, 2002, and the trial court imposed a standard range sentence of 30 months.   On October 21, 2002, Phillips filed motions to arrest judgment and for a new trial.   The trial court denied both motions and Phillips appealed.

ANALYSIS

Accident Reconstruction Software Evidence

 The main question on appeal is whether the trial court committed reversible error by admitting Hunter's accident reconstruction testimony.   Hunter used a computer software program called PC-Crash to assist in reconstructing the collision and estimating the speed Phillips's car was traveling when it sheared the telephone pole.   Phillips does not challenge Hunter's qualification as an accident reconstruction expert.   Instead, he claims that PC-Crash is not generally accepted in the scientific community and, thus, the trial court erred in ruling that the State carried its burden of establishing that testimony from an accident reconstruction expert who used PC-Crash to analyze data was admissible under the Frye1 test.

 Expert testimony is admissible when the witness qualifies as an expert, the opinion is based on an explanatory theory generally recognized in the scientific community, and the testimony would help the trier of fact.  State v. Greene, 139 Wash.2d 64, 73-74, 984 P.2d 1024 (1999), cert. denied, 529 U.S. 1090, 120 S.Ct. 1726, 146 L.Ed.2d 647 (2000).  ER 702 also permits admission of qualified expert testimony when scientific, technical, or other specialized knowledge will help the trier of fact understand the evidence or determine a fact in issue.   A witness without personal knowledge who fails to satisfy the requirements of ER 702 is merely speculating.   Such a witness has no relevant admissible evidence and must be excluded.  Safeco Ins. Co. v. McGrath, 63 Wash.App. 170, 177, 817 P.2d 861 (1991), review denied, 118 Wash.2d 1010, 824 P.2d 490 (1992).   Although we review a trial court's decision to admit or exclude expert testimony for an abuse of discretion, a court that admits expert testimony unsupported by an adequate foundation abuses its discretion.  Weyerhaeuser Co. v. Commercial Union Ins. Co., 142 Wash.2d 654, 683-84, 15 P.3d 115 (2000);  see also State v. Atsbeha, 142 Wash.2d 904, 918-20, 16 P.3d 626 (2001) (trial court did not abuse its discretion in excluding expert testimony that did not meet the requirements of ER 401, 402, or 702).

 In Washington, evidence derived from a novel scientific theory or principle is admissible only if the theory or principle has achieved general acceptance in the relevant scientific community.  ER 702;  State v. Copeland, 130 Wash.2d 244, 261, 922 P.2d 1304 (1996) (affirming Washington's adherence to Frye v. United States, 293 F. 1013 (D.C.Cir.1923), despite U.S. Supreme Court's adoption of a different test in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993)).   We review the trial court's decision to admit scientific evidence under the Frye standard de novo.  State v. Kunze, 97 Wash.App. 832, 854, 988 P.2d 977 (1999), review denied, 140 Wash.2d 1022, 10 P.3d 404 (2000).   But if the evidence does not involve a novel scientific theory, a Frye hearing is not required.  State v. Hayden, 90 Wash.App. 100, 104, 950 P.2d 1024 (1998);  see also State v. Vermillion, 112 Wash.App. 844, 862-63, 51 P.3d 188 (2002) (concluding that evidence from a police tracking device is not subject to a Frye analysis), review denied, 148 Wash.2d 1022, 66 P.3d 638 (2003);  State v. Noltie, 57 Wash.App. 21, 29-30, 786 P.2d 332 (1990) (concluding that the colposcope is in general use in the medical community and is “no more a ‘novel’ device or scientific process subject to the Frye standard than binoculars or a weak microscope”), aff'd, 116 Wash.2d 831, 809 P.2d 190 (1991).

Trial courts routinely admit testimony from qualified accident reconstruction experts.   See, e.g., State v. Hanna, 123 Wash.2d 704, 707-08, 871 P.2d 135, cert. denied, 513 U.S. 919, 115 S.Ct. 299, 130 L.Ed.2d 212 (1994);  State v. Quiros, 78 Wash.App. 134, 136, 896 P.2d 91, review denied, 127 Wash.2d 1024, 904 P.2d 1158 (1995);  State v. Reid, 74 Wash.App. 281, 286, 872 P.2d 1135 (1994).   As noted, Phillips does not challenge Hunter's qualifications as an accident reconstruction expert.   Instead he claims that because Hunter used PC-Crash, a computerized reconstruction software program, to calculate the speed of the vehicle and reconstruct the crash, it is PC-Crash and not Hunter that is giving evidence and that PC-Crash must meet the Frye standard.

Initially, we note that Hunter testified that PC-Crash was not based on a novel scientific theory.   He testified that the computer software merely applies the long-accepted laws of physics and computerized accident reconstruction calculations.   Hunter testified that reconstruction experts could make the same calculations by hand or on spreadsheets but that PC-Crash's capacity to break down the simulations into 15-millisecond segments made it a more useful tool.   As Hunter presented it, PC-Crash is little more than an advanced calculator and the Frye standard would not apply.  State v. Russell, 125 Wash.2d 24, 70, 882 P.2d 747 (1994) (concluding that introduction of certain statistical probability evidence did not implicate Frye;  computer programs were “nothing more than sophisticated record-keeping systems”), cert. denied, 514 U.S. 1129, 115 S.Ct. 2004, 131 L.Ed.2d 1005 (1995).

But we do not hold here that computerized accident simulation programs like PC-Crash are exempt from the Frye standard, and for purposes of this appeal, we accept the trial court's decision that a Frye hearing was required.   Thus, we now proceed with a de novo review of the trial court's findings following the Frye hearing.  Kunze, 97 Wash.App. at 854, 988 P.2d 977.

 First, we determine if the evidence has a valid scientific basis.  State v. Cauthron, 120 Wash.2d 879, 887, 846 P.2d 502 (1993).   Under Frye, novel scientific, technical, or other specialized knowledge may be admitted or relied upon only if generally accepted as reliable by the relevant scientific, technical, or specialized community.  Kunze, 97 Wash.App. at 853, 988 P.2d 977.   General acceptance may be found “from testimony that asserts it, from articles and publications, from widespread use in the community, or from the holdings of other courts.”  Kunze, 97 Wash.App. at 853, 988 P.2d 977.   If there is a significant dispute between qualified experts as to the validity of scientific evidence, there is no general acceptance.  Cauthron, 120 Wash.2d at 887, 846 P.2d 502.   Mere disagreement as to the conclusions or weight to be given the results, however, does not amount to a significant dispute.   See Russell, 125 Wash.2d at 51, 882 P.2d 747.

Here, the State provided substantial evidence of the acceptance underlying the principles that PC-Crash uses and the general acceptance in the accident reconstruction community of similar software.   Hunter, an accident reconstruction expert with 30 years experience, testified to the use of accident simulation programs such as PC-Crash in the accident reconstruction community.   Hunter has used PC-Crash since 1995 or 1996 over a thousand times.   And he used PC-Crash in connection with his testimony in one other vehicular homicide trial in Snohomish County and two or three civil trials.2  Hunter also testified that there are many two-dimensional accident simulation software programs available and that PC-Crash is one of two major three-dimensional software reconstruction programs available.3

Hunter also testified about two validation articles on PC-Crash published in accident reconstruction journals, one favorable and the other critical.   He testified that the critical review on which Phillips's attorney relied had been discredited and the accident reconstruction community no longer embraces this article's criticism. Specifically, Hunter testified that the article had not been properly peer reviewed;  it was his understanding that the article had been withdrawn from publication by the Society of Automotive Engineers;  and his review of the critical article suggested that the authors had improperly applied two-dimensional analysis to the three-dimensional PC-Crash program and that this error had created the unreliable results reported in the article.

Hunter testified that several accident reconstruction agencies have or use PC-Crash, including the Society of Automotive Engineers, the Seattle corporation MDE Engineering, and the Washington State Patrol Major Accident Investigation Team. He named other accident reconstruction experts he knew who were using the program and who had used the program results in their testimony in Washington courts.

 In evaluating general acceptance in the scientific community, we also look to decisions from other jurisdictions.  State v. Jones, 130 Wash.2d 302, 307, 922 P.2d 806 (1996).   Our inquiry is not whether other courts have accepted the evidence, but whether the scientific community accepts the evidence and whether other jurisdictions have found evidence of widespread use.  Jones, 130 Wash.2d at 307, 922 P.2d 806.   There is no published federal or state case in the United States that has specifically ruled on the validity of the PC-Crash software. But other jurisdictions have accepted accident reconstruction software and computer simulations as based on the application of long-standing scientific principles.   In State v. Clark, 101 Ohio App.3d 389, 416, 655 N.E.2d 795 (Ohio Ct.App.1995), aff'd, 75 Ohio St.3d 412, 662 N.E.2d 362 (Ohio 1996), the appellate court affirmed the admission of computer reconstructed models based on “the reliability of such simulations within the relevant technical community.”   The court in Clark noted that similar simulations have been found reliable and admissible in other jurisdictions.  101 Ohio App.3d at 416-17, 655 N.E.2d 795 (citing Perma Research & Dev. v. Singer Co., 542 F.2d 111, 115 (2d Cir.1976) (results of computer simulation were used to form the basis of expert testimony regarding the feasibility of perfection of an automobile anti-skid device);  Messex v. Louisiana Dep't of Highways, 302 So.2d 40, 44 (La.Ct.App.1974) (computer simulation of automobile accident was used to assist court in determining whether the defendant had reasonable opportunity to avoid accident);   Holland v. Dick Youngberg Chevrolet-Buick, Inc., 348 N.W.2d 770 (Minn.Ct.App.1984) (computer simulated test was conducted to show a truck could achieve a speed of 55 mph with a full load and was not substantially impaired);  Kudlacek v. Fiat S.p.A., 244 Neb. 822, 842-43, 509 N.W.2d 603 (Neb.1994) (expert testimony regarding computer simulation of the path of an automobile on a roadway was properly admitted);  People v. McHugh, 476 N.Y.S.2d 721, 124 Misc.2d 559 (N.Y.1984) (computer simulation of car crash was admitted in second degree manslaughter prosecution);  Deffinbaugh v. Ohio Turnpike Comm'n, 67 Ohio App.3d 692, 588 N.E.2d 189 (Ohio Ct.App.1990) (two computer generated simulations of a car accident were properly admitted at trial)).

Here, the State demonstrated by a preponderance of the evidence that the use of computer-assisted accident reconstruction software, such as PC-Crash, is accepted in the accident reconstruction community.   Accident reconstruction software programs and computer simulations have been used in other jurisdictions.   Although Phillips offered a copy of one unverified article critical of the PC-Crash reconstruction program, there was testimony that this article had been discredited and may even have been withdrawn from publication.4  More importantly, there was no evidence that a significant dispute among experts exists regarding the use of computer-assisted accident reconstruction programs.

Computer-assisted accident reconstruction programs, including PC-Crash, calculate from established laws of physics and are sufficiently accepted in the field of accident reconstruction to satisfy the Frye v. United States, 293 F. 1013 (D.C.Cir.1923), standard for admissibility.   An otherwise qualified accident reconstruction expert is not prohibited from giving expert opinion testimony on the cause of an accident merely because he uses the assistance of such a software program in making his calculations.   Phillips's challenges to the proper use of the software go to the weight not the admissibility of Hunter's expert testimony and the trial court properly admitted Hunter's expert accident reconstruction testimony.  Russell, 125 Wash.2d at 51, 882 P.2d 747.

Affirmed.

A majority of the panel having determined that only the foregoing portion of this opinion will be printed in the Washington Appellate Reports and that the remainder shall be filed for public record pursuant to RCW 2.06.040, it is so ordered.

Ineffective Assistance of Counsel

Phillips claims that his trial counsel was ineffective because counsel did not request a CrR 3.5 hearing regarding statements he made to Clithero in his attorney's office that he “was being reckless” or that he “was driving reckless.”   Br. of Appellant at 28.   Phillips makes two arguments in support of excluding these admissions.   First, he claims that Clithero failed to read to him Miranda 5 warnings.   Second, he asserts that the statements were made in the context of plea negotiations and are inadmissible under ER 410.

To establish ineffective assistance of counsel, the defendant must prove (1) that his counsel's performance was deficient, and (2) that prejudice resulted.  State v. McFarland, 127 Wash.2d 322, 334-35, 899 P.2d 1251 (1995).   The failure to bring a pretrial suppression motion is not per se deficient representation and to overcome the strong presumption of effective representation, the defendant bears the burden of showing from the record the absence of legitimate strategic or tactical reasons supporting the challenged conduct by counsel.  McFarland, 127 Wash.2d at 336, 899 P.2d 1251;  State v. Klinger, 96 Wash.App. 619, 623, 980 P.2d 282 (1999).

By admitting that he was reckless, Phillips was admitting the existence of one of the elements of the crime.  RCW 46.61.520(1)(b).  Thus, admitting these statements, if error, was prejudicial.   But Phillips's counsel's performance was not deficient for failing to bring a CrR 3.5 motion to exclude the statements.   Defense and the prosecutor had agreed that the statements were inadmissible under the court's ruling on an earlier motion in limine:  “No reference to plea negotiations and related statements including but not limited to statements made by the defendant on October 23, 2001, at his attorney's office.”   I RP at 26.   The prosecutor clarified, “Your Honor, these are statements not made by the defendant.   These are statements made by [defense counsel].   And even if they were made by the defendant, I wouldn't have any objection to excluding them.”   I RP at 26.   Thus, Phillips's counsel had no reason before trial to insist on a pretrial hearing to exclude the statements.

Moreover, no basis existed for suppressing the statements under Miranda.   Phillips was not under arrest.   He was in his attorney's office and was represented by counsel during the questioning.   Defense counsel was not ineffective for failing to move to suppress Phillips's voluntary statements to Clithero.   Because Phillips's counsel did not engage in conduct that fell below the standard of an ordinary reasonably prudent defense counsel, the first prong of an ineffective assistance of counsel claim has not been established.

Although failure to establish deficient performance is dispositive of this issue, we briefly address whether counsel's failure to seek a suppression hearing prejudiced Phillips.   To establish prejudice, Phillips must show that the trial court would have probably granted the suppression motion.   McFarland, 127 Wash.2d at 337 n. 4, 899 P.2d 1251. Phillips contends that his statements to Clithero would have been suppressed either because he had not received Miranda warnings or because the statements were inadmissible as part of a plea negotiation.   We disagree.

Detention becomes “custodial” and Miranda rights attach only when a suspect's freedom of action is curtailed to a “degree associated with formal arrest.”  State v. Marshall, 47 Wash.App. 322, 324-25, 737 P.2d 265 (1987) (quoting Berkemer v. McCarty, 468 U.S. 420, 440, 104 S.Ct. 3138, 82 L.Ed.2d 317 (1984)).  “[P]olice questioning in the context of an investigative detention does not require Miranda warnings.”  State v. King, 89 Wash.App. 612, 616-17, 949 P.2d 856 (1998).   Although Clithero could not recall whether he read Phillips his Miranda rights, for purposes of this appeal only, we will assume that he did not.   Phillips was not under arrest at the time of the interview and there were no indications of formal arrest.   Moreover, one purpose of Miranda warnings is to advise an individual that they are a suspect in a criminal investigation and that they have the right to be represented by counsel and to have counsel present during questioning.   Phillips knew he was a suspect and that criminal charges were contemplated, and he was represented by counsel who was present during the questioning.   It does not appear that Miranda rights were required at the time of Clithero's interview, and Phillips has not shown that under these circumstances Miranda warnings were required at the time of the questioning in his attorney's office.   In these circumstances, Phillips has failed to demonstrate that the trial court would have suppressed the statements for failure to read Miranda warnings.

Phillips further contends that the statement, “I admit I was driving reckless,” was inadmissible as part of a plea negotiation.   Br. of Appellant at 28.  ER 410 provides that “statements made in connection with, and relevant to, any of the foregoing pleas or offers, [are] not admissible in any civil or criminal proceeding against the person who made the plea or offer.”  ER 410 is intended to “exclude only evidence arising out of formal plea negotiations between a government attorney and defendant's counsel after charges had been, or were about to be, filed.”  State v. Pizzuto, 55 Wash.App. 421, 434, 778 P.2d 42, review denied, 113 Wash.2d 1032, 784 P.2d 531 (1989).   Statements to a law enforcement official are inadmissible under ER 410 only if the official has the express authority to convey a plea offer.  Pizzuto, 55 Wash.App. at 434, 778 P.2d 42.   Statements made to an official without such authority are not excludable under the rule, but their admissibility is determined by examining whether they were voluntarily made.  Pizzuto, 55 Wash.App. at 434, 778 P.2d 42.

Before Clithero testified to Phillips's admission, defense counsel challenged the admissibility of his testimony and examined him out of the jury's presence.   The record clearly establishes that Clithero did not have any authority to negotiate plea bargains.   Clithero testified that he told Phillips during this meeting that “the case would be forwarded to the prosecutor's office for review” and that “he could possibly be charged with vehicular homicide/vehicular assault.”   IV RP at 278.   Clithero testified that the three then discussed the possible charges the prosecutor's office might file and charges to which Phillips might be willing to plead guilty.   Then the three men engaged in small talk.   Clithero testified that it was sometime later when Clithero was about to leave the attorney's office that Phillips volunteered, “I admit I was driving reckless.”   IV RP at 282.   Clithero had no authority to negotiate a plea agreement and he did not represent to Phillips that he had such authority.  ER 410 does not require excluding Phillips's voluntary statement that he was driving reckless.

Failure to Disclose Witness

Phillips challenges the trial court's decision to allow testimony from Jenene Piecuch, who was not on the original witness list and was not disclosed to the defense until the night before her testimony.   Piecuch lived near the accident scene and had heard the accident occur.   The State does not dispute the untimeliness of the disclosure, but it argues that (a) it was unaware of Piecuch until the night before her testimony, (b) that the court allowed the defense to interview Piecuch before she testified, and (c) that the defense did not object to Piecuch after interviewing her.

The State is required to disclose its witness list to the defendant before the omnibus hearing.  CrR 4.7(a)(1)(i).   The remedies for discovery violations are set forth in CrR 4.7(h)(7)(i), which states that if a party fails to comply with an applicable discovery rule, the court may “order such party to permit the discovery of material and information not previously disclosed, grant a continuance, dismiss the action or enter such other order as it deems just under the circumstances.”   Dismissal for discovery violations is “an extraordinary remedy available only when there has been prejudice to the rights of the accused which materially affected his or her rights to a fair trial.”   State v. Woods, 143 Wash.2d 561, 582, 23 P.3d 1046 (2001) (quoting State v. Blackwell, 120 Wash.2d 822, 830, 845 P.2d 1017 (1993)).   A trial court's discovery decision will not be disturbed absent a manifest abuse of discretion.  Blackwell, 120 Wash.2d at 826, 845 P.2d 1017.

Here, the court gave defense counsel 20 minutes to interview Piecuch.   After the interview, counsel's concern about the witness centered on the credibility of her testimony-whether she could have felt the impact of the crash at her distance.   After hearing the defense concerns, the trial court determined that the State could present Piecuch and that the defense could present any rebuttal witnesses that could refute Piecuch's testimony.   Furthermore, after interviewing Phillips, the defense did not request a continuance.   Phillips has not shown that the trial court's remedy was a manifest abuse of its discretion that prejudiced his right to a fair trial.   Thus, Phillips's claim is without merit.

Motions to Arrest Judgment and New Trial

Finally, Phillips argues that the trial court erred when it denied his motion for a new trial and to arrest judgment.   A trial court may grant a new trial if a defendant's substantial right to a fair trial was materially affected.  CrR 7.5(a).   But we will not disturb a trial court's decision to grant or deny a new trial unless its decision constitutes a manifest abuse of discretion or is based upon a mistake of law.  State v. Jackman, 113 Wash.2d 772, 777, 783 P.2d 580 (1989).   Phillips argues that the trial court erroneously denied his motion for a new trial because the State failed to reveal that Phillips's passenger, Dieckmann, was recovering from his injuries and that the verdict was contrary to the evidence.   We disagree.

The record shows that Dieckmann met with the State, defense counsel, and an investigator and he recalled a deer and thought the vehicle struck it.   Dieckmann was also “confused easily and it was difficult for him to communicate.”   Clerk's Papers (CP) at 151.   After the third day of trial testimony, Dieckmann “refused to answer any questions after the fact that the deer was observed and/or struck.”   CP at 152.   While Dieckmann may be recovering his memory and may recall further details, there is no evidence that the State deliberately withheld Dieckmann's condition from Phillips.   The record also does not show that Dieckmann was able to give his account of the accident at the time Phillips requested a new trial.   Phillips has not shown that the trial court abused its discretion by denying Phillips's motion for a new trial on this ground.

Phillips also claims that because the evidence was conflicting, the verdict is contrary to the evidence.   Resolving conflicting evidence is the purpose of a trial.   Conflicting evidence at a first trial does not suggest the need for a new trial.   If there is substantial evidence for both sides, the jury's decision is final and a new trial is not appropriate.  State v. Williams, 96 Wash.2d 215, 227, 634 P.2d 868 (1981).   Phillips has not shown that the trial court abused its discretion by denying the defendant's motion for a new trial on this ground.

Phillips also challenges the trial court's denial of his motion to arrest judgment, claiming that the trial court failed to consider the intervening cause, which was his claim that Dieckmann grabbed the steering wheel.   A trial court may arrest judgment on the basis of insufficiency of the proof of a material element of the crime.  CrR 7.4(a)(3).   When reviewing a motion to arrest judgment an appellate court's function is to determine “whether the evidence is legally sufficient to support the jury's finding.”  State v. Bourne, 90 Wash.App. 963, 967, 954 P.2d 366 (1998) (quoting State v. Robbins, 68 Wash.App. 873, 875, 846 P.2d 585 (1993)).  “The evidence is sufficient if any rational trier of fact viewing it most favorably to the State could have found the essential elements of the charged crime beyond a reasonable doubt.”  Bourne, 90 Wash.App. at 968, 954 P.2d 366.   Here, Phillips is challenging the element that Lanning's death was “a proximate result of injury proximately caused by the driving of” Phillips.  RCW 46.61.520(1).   A driver may avoid responsibility for a vehicular death if an intervening, superseding event caused the death.  State v. Rivas, 126 Wash.2d 443, 453, 896 P.2d 57 (1995).

Phillips argues that the deer entering the road in front of Phillips's vehicle and Dieckmann's grabbing of the wheel are the intervening events.   But Hunter opined that the vehicle was traveling at approximately 80 mph.   Clithero also testified that the vehicle damage is consistent with a vehicle traveling significantly faster than 60 mph.   The speed limit on that stretch of road was 40 mph.   Hunter testified that at 80 mph, if someone had grabbed the wheel, the impact would have been different and the vehicle would have gone off the road to the right, which it did not.   Although Phillips's defense was supported by expert testimony that the yaw marks were consistent with the car's wheels sliding, we consider the evidence in the light most favorable to the State.   In this light, there was sufficient evidence to support the jury's verdict and to convict Phillips of both the vehicular homicide and vehicular assault charges.   Phillips's claim is without merit.

We affirm.

FOOTNOTES

1.   Frye v. United States, 293 F. 1013, 1014 (D.C.Cir.1923).

2.   Hunter testified:Q. How many times have you used PC-Crash to reach a conclusion about a particular collision?A. I don't know.   I mean, thousands.   I'm sure well over a thousand times.   I've been using the program since ‘95 or ‘96 and I use it on a lot of collisions, so ․ I do about 180 crashes a year.Q. You have had about 20 years of experience as an accident reconstructionist or in that field?A. In the reconstruction field.   I have been doing crashes since the early ‘70s.Q. And have the results that you have seen PC-Crash reach been consistent with your experience doing them by hand back before you used PC-Crash?A. Oh, well, sure.   And you can validate it by hand on a simple momentum solution.   PC-Crash can give you the results.   You can do the hand calculations, they will come out the same, or use a spreadsheet, they will come out the same.II RP at 115.

3.   The other three-dimensional software is HVE 3D. Our record does not define this acronym.

4.   No copy of the article is available through the Society of Automotive Engineers which originally published the article.   Hunter testified that the reason that the article was not available was that it had been withdrawn.

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

QUINN-BRINTNALL, C.J.