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Court of Appeals Division I
                               State of Washington

                            Opinion Information Sheet

Docket Number:       51647-7-I
Title of Case:       State of Washington, Respondent v. Michael Sipin, Appellant
File Date:           02/14/2005


                                SOURCE OF APPEAL
                                ----------------
Appeal from Superior Court of King County
Docket No:      00-1-09336-1
Judgment or order under review
Date filed:     12/13/2002
Judge signing:  Hon. Philip G Jr Hubbard


                                     JUDGES
                                     ------
Authored by Faye Kennedy
Concurring: Mary Kay Becker
            William Baker


                                COUNSEL OF RECORD
                                -----------------
Counsel for Appellant(s)
            John Rolfing Muenster
            Muenster & Koenig
            1111 3rd Ave Ste 2220
            Seattle, WA  98101

Counsel for Respondent(s)
            Prosecuting Atty King County
            King Co Pros/App Unit Supervisor
            W554 King County Courthouse
            516 Third Avenue
            Seattle, WA  98104

            Dennis John McCurdy
            King County Prosecutor's Office
            516 3rd Ave Ste W554
            Seattle, WA  98104-2362


IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON,                             )
                                                 ) NO. 51647-7-I
                    Respondent,                  )
                                                 ) DIVISION ONE
               v.                                )
                                                 ) MICHAEL L. SIPIN,
                                                 ) PUBLISHED OPINION
                                                 ) Appellant.
                                                 ) FILED: February 14, 2005

     KENNEDY, J.   Michael Lee Sipin and his friend David Taylor were
riding in Sipin's new BMW Z-3 convertible when it crashed and Taylor was
killed.  The State charged Sipin with vehicular homicide and, at trial,
sought to admit computer-generated simulation evidence using Version 6.2 of
a program called PC-CRASH to prove that Sipin had been the driver of the Z-
3.  Following a Frye1 hearing, the trial court admitted the evidence, and
the jury convicted Sipin.  We reverse and remand for a new trial.  PC CRASH
had not been validated for the purpose for which the evidence was offered
simulation and prediction of multiple-occupant movement within a vehicle
during a multiple-collision accident.  Moreover, scientific consensus had
not been achieved among accident reconstructionists that PC-CRASH is even
capable of accurately performing the predictions to which the State's
expert witness testified.  Accordingly, the evidence could not pass the
Frye test, and the trial court erred by admitting it.  Contrary to the
State's assertion, a Frye hearing was necessary in this case and the error
was not harmless.
FACTS
On March 6, 2000, Michael Sipin and David Taylor spent the afternoon
together drinking beer, eating, and talking at Sipin's home in Maple
Valley.  Sipin owned a new, manual transmission BMW Z-3 convertible with a
removable hardtop, and he bragged about the car to Taylor.  Sipin
subsequently testified that he occasionally had attacks of gout that
prevented him from driving a car with a manual transmission.  Sipin stated
that he had gout on the day in question, was walking with a cane, and could
not drive the Z-3, so his daughter had been using the car that day.
Sipin's wife also testified that Sipin had gout on the day in question,
could barely walk, and could not drive the Z-3.  Paula Luedke, a
physician's assistant who had treated Sipin for many years, confirmed that
Sipin suffered from chronic gout, which made it painful for him to walk.
When Sipin's daughter arrived home with the Z-3, Taylor wanted to drive it,
and Sipin testified that he agreed.  Sipin also testified that Taylor had
to adjust the driver's seat as far back as it would go, and had trouble
locating reverse, but that eventually Taylor was able to drive the vehicle
out of the driveway.  Sipin's daughter testified that Taylor and Sipin left
in the vehicle, with Taylor driving, shortly after 5 p.m.  Sipin's wife
testified that she saw Taylor in the driver's seat, and observed that he
had some difficulty putting the car into reverse, but that she did not see
who was driving when the car left the driveway.
Sipin testified that the roads around his home were 'back country' roads
with lots of hills and a 35 mph speed limit.  Sipin stated that the roads
were not safe to drive at high speeds.  Sipin stated that he had planned to
have Taylor drive along a scenic, hilly 15-minute loop leading back to the
house.  Sipin remembered Taylor turning onto the proper road, but testified
that he did not remember the accident itself.
Soon after Taylor and Sipin left Sipin's home in the Z-3, three neighbors
saw the car traveling at a high rate of speed on the rural road near
Sipin's home.  They did not see who was driving.  Soon after the vehicle
passed from their sight, they heard a 'screech' and a loud crash.  The
neighbors called 911 at 5:11 p.m. and then ran to the scene.  They observed
that the Z-3 had hit a mailbox on a metal pole that had been cemented into










the ground with a large amount of concrete, ripping the mailbox and lifting
the cement which one witness said looked like it weighed several hundred
pounds out of the ground.  After hitting the mailbox, the Z-3 hit a large
tree.  The State's accident reconstructionists testified that the vehicle
hit the tree rear-first, forcing the passenger-side door forward into the
right front quarter panel, and leaving the passenger seat open to the tree.
The witnesses found the Z-3's hardtop lying away from the vehicle.  Both
Taylor and Sipin had been ejected from the car.  Taylor was found on the
ground between the passenger-side door and the tree, with one foot in the
car.  Sipin was found about 10 to 15 feet behind the vehicle.  The
passenger-side airbag had been deployed.  The gearshift was found on the
right side of the car near the tree.  None of the neighbors moved the men,
the car, or the mailbox, but waited until emergency personnel arrived.
Taylor sustained serious injuries, and died soon after the accident.  Sipin
suffered permanent brain damage.  He later stipulated that his blood
alcohol level had been .11 two hours after the crash.
Sipin was charged with one count of vehicular homicide, as the driver,
under RCW 46.61.520(1)(a).
Frye Hearing
Sipin filed a motion to exclude the State's accident-reconstruction
evidence that had been generated by use of a computer program called PC-
CRASH, as well as the accompanying testimony by Ronald D. Heusser, the
State's PC-CRASH expert witness.  This evidence was offered by the State to
prove that Sipin had been the driver of the Z-3 at the time of the crash.
Sipin asserted that the computer-generated evidence was not admissible
under the Frye test for admissibility of novel scientific evidence.  A Frye
hearing was held to determine the admissibility of the computer-generated
evidence.  Heusser, an engineer and accident reconstructionist, testified
at the Frye hearing regarding his use of the computer program PC-CRASH to
simulate the movement of the occupants in the accident.
Heusser testified that PC-CRASH is a simulation program, rather than an
animation program.  Heusser stated that 'inputting' variables from the
scene and the vehicle, such as steering, braking, and speed, would create a
predictive image of the vehicle movement, based on the laws of physics.
Heusser stated that he had previously testified at trials regarding the use
of PC-CRASH for simulation of accidents involving single vehicles over
rough terrain, multiple-vehicle accidents, and accidents involving vehicles
and pedestrians.  He testified that none of these cases had been appealed.
Heusser provided two studies, one from 1996, and another from 1999, for
purposes of the Frye hearing.2  The 1996 study, 'Validation of PC-CRASH - A
Momentum-Based Accident Reconstruction Program,' showed a comparison
between staged collisions of vehicles that measured tire marks, speed, and
direction, and PC-CRASH simulations, and found that the computer
simulations predicated speeds in car crashes that were in agreement with
'real world' results.  The 1999 study, 'The Pedestrian Model in PC-CRASH -
The Introduction of a Multi Body System and its Validation,' was the first
study of the use of a very simplistic human model in an updated version of
PC-CRASH that provided a 'multi-body' option for purposes of simulating the
interaction between a pedestrian and the outside of a vehicle.
Heusser provided no validation studies that had been done on the use of the
multi-body option of PC-CRASH to simulate the movement of a human body
within the interior of a vehicle during a car accident.  However, Heusser
asserted that the principles used to predict interaction between a human
body and the outside of a vehicle were the same as the principles used to
predict interaction between a human body and the inside of the vehicle.
Heusser used the multi-body option of Version 6.2 of PC-CRASH.  Heusser
testified that he was not aware of any significant debate in the accident-
reconstruction community about the reliability of PC-CRASH for showing
interior-occupant movement.
Heusser stated that to reconstruct the accident in the present case, he
viewed King County survey data, a map and measurements of the scene,
diagrams, the vehicle, digital photographs of the tire tracks, and friction
tests on various surfaces involved in the accident.  Heusser testified that
he spent a lot of time 'inputting' various speeds and turns until the PC-
CRASH simulation followed the tire tracks documented by police at the
scene.  Heusser stated that he then entered the weight and body type of
each occupant into the computer program to determine interior occupant
movement.  He asserted that these calculations had been validated by a
Society of Automotive Engineers paper, but did not identify the study.
Even though the undercarriage of the vehicle was torn out by the impact
with the mailbox, Heusser stated that he instructed the program to ignore
the mailbox post after it was first hit because, in his opinion, it did not
affect the dynamics of the vehicle.  Although Heusser never received
information about the size and weight of the mailbox post and the concrete
in which it was imbedded, he stated that the lack of such measurements made
no difference to his calculations.  Heusser also testified that the fact
that the passenger-side airbag deployed, or that the gearshift was found
outside on the passenger side of the vehicle, was not important in his
overall calculation of forces of impact and momentum on the interior
occupants.
Heusser illustrated his findings with a video of the PC-CRASH simulation.
Heusser concluded, based on the data that he put into the PC-CRASH program,
that the driver remained in his seat until the car hit the tree, and that
the passenger was thrown out of the vehicle into the tree.  Heusser opined
that the vehicle's hardtop did not come loose until the car hit the tree,
and that the occupants were ejected at that time.
Sipin presented no witnesses at the Frye hearing and presented no
literature.  However, Sipin objected throughout the hearing that the
foundation for Heusser's conclusions was inadequate because PC-CRASH had
neither been peer-validated for use as a simulation to predict interior-
occupant movement during a multi-collision accident, nor admitted as
evidence for such a purpose in Washington courts.  The trial court
overruled these objections.  Nevertheless, during cross-examination Heusser
admitted that none of the prior cases in which he used PC-CRASH to simulate
vehicle accidents involved interior occupant movement simulations.  Heusser
also admitted that the 1996 study showed that the results of PC-CRASH were
not always entirely accurate, and that no studies currently existed that
validated PC-CRASH for use in simulating the interaction between a person
and the interior surfaces of a vehicle during an accident.  But he
reasserted that the principles involving the exterior of a vehicle and a
person were applicable to interior vehicle simulations.
Heusser also admitted that the 1999 study, which involved the use of PC-
CRASH for simulation of pedestrian/vehicle accidents, did not indicate that
the program could be used to predict interior-occupant movement, and that
the study additionally concluded that further validation tests would be
required to prove the results of the illustrated simulations.  Heusser
stated that such validation studies were undertaken in 2000.  The State
failed to provide the studies, but Heusser testified that the paper
regarding the studies focused on validation of multi-body/person
interaction with vehicle exterior surfaces, not interior surfaces.
The trial court ultimately allowed Heusser to testify as an expert witness
at trial, and ruled that he could rely on the results of his PC-CRASH
simulation as the basis for his expert opinion.  The court held that 'a
sufficient showing has been made that the PC-Crash data is the type of data
reasonably relied upon by experts in the accident reconstruction field in
forming opinions or inferences upon the subject.'  2 Report of Proceedings
at 173.  The court also stated that although an actual model for occupant
movement within the vehicle was not presented, the mathematical principles
that would support that model were illustrated by the studies validating
simulations involving pedestrians and the exteriors of vehicles, and noted
that the testimony regarding this issue was unrebutted and unimpeached.
The court also found that the video and photo stills prepared by Heusser
would assist the jury in understanding Heusser's testimony, and admitted
them.  However, the court limited the admission of the video and still
clips for illustrative purposes only; it did not allow the jury to take the
video back to the jury room.
Trial Testimony and Evidence
Heusser testified extensively at trial.  Heusser described PC-CRASH to the
jury as 'a computer simulation program that enables us to look at vehicle
occupant motion, vehicle crashes without the expense of crashing cars
together or endangering occupants.'  5 Report of Proceedings at 31.
Heusser further described a 'simulation' as a predictive type of computer
program that obeyed the laws of physics, and told the jury that the
software in PC-CRASH was limited by the laws of physics.  He informed the
jury that the program had been validated by a 'fair number' of six papers
published by the Society of Automotive Engineers, and that the validation
studies had shown that PC-CRASH had relied on known data from actual test
crashes to formulate its simulations.  Heusser asserted that PC-CRASH was
valid to show occupant movement within a vehicle, and that the program was
generally relied upon in the accident reconstruction field.
Heusser stated that he had used PC-CRASH in the present situation to model
occupant movement.  He testified that he used three-dimensional scene
survey measurements obtained from King County detectives, photographs, and
a personal examination of the vehicle and the road, to create the
simulation.  Heusser stated he put data into PC-CRASH, and then tried
varying speeds and directions until the simulated vehicle's movement and
impacts matched the actual tire marks at the scene and the damage to the
actual vehicle.
Heusser then presented the PC-CRASH computer simulation and snapshots.  The
video simulation was shown several times, both in actual speed and slow
motion.  Heusser testified that the simulation illustrated that the
occupants remained in their positions in the vehicle after impact with the
mailbox, and until the vehicle hit the tree.  Heusser opined that the
hardtop came loose when the car hit the tree and the occupants were
ejected.  Heusser stated that the simulation showed that the passenger was
thrown into the tree and that the driver was thrown behind the vehicle.
Thus, Heusser concluded that Taylor was the passenger and Sipin the driver.
Heusser was cross-examined extensively on the vehicle's impact with the
mailbox imbedded in concrete, and the damage to the undercarriage of the
vehicle, and maintained that this impact was not significant to the
movement of the occupants.
Detective David Wells, a certified expert in accident reconstruction with
the King County Sheriff's office, testified that he was paged to go to the
scene of the accident about half an hour after the first 911 call was
received.  Detective Wells stated that he made the initial report of the
scene, recording weather quality, marking tire tracks and gouges to the
roadway, and measuring damage to the vehicle and fixed objects.  He stated
that he used a measuring system called a total station instrument, which
utilizes infrared beams from a tripod to record two-dimensional
measurements of the collision scene and produce a scale diagram of the
entire roadway, physical objects, and tire marks.  Detective Wells stated
that based on his calculations, he could determine the direction the
vehicle took and the speed of the vehicle at impact with various objects.
Although Detective Wells did not do calculations to determine occupant
movement during the accident, he stated that his preliminary opinion at the
scene was that the person lying between the passenger door and the tree was
the passenger.  He also stated that the mailbox pole and concrete were
dragged 11 feet from where the mailbox was originally located.  Detective
Wells stated that although the mailbox post and cement base were too bulky
to collect, he could estimate the force of the crush impact without taking
the mailbox into evidence.  However, he admitted that he did not do any
crush testing of the car or make any specific measurements of the
indentation caused by the collision with the mailbox pole.  The day after
the accident, when Detective Wells returned to take pictures and aerial
shots of the scene, the mailbox owner had used his tractor to remove the
mailbox.
A forensic scientist with the Washington State Patrol Crime Laboratory was
unable to locate any biological stains within the vehicle's interior to
match to either occupant, but recovered dark blue fibers from the airbag on
the passenger side of the vehicle and on the passenger-side door panel.
Another forensic scientist found that these fibers matched the fiber of the
jeans worn by Taylor.  He also found melted plastic on the right side of
Taylor's jeans that was consistent with the plastic used in the door
panels.  The scientist was not able to find evidence that the jeans or
black jacket worn by Sipin came into contact with the passenger-side
airbag.
An expert witness in latent-fingerprint analysis from the King County
Sheriff's office could not identify any latent fingerprints on the Z-3's
gearshift knob, parking-brake handle, headlight switch, steering wheel, or
any other areas of the interior of the vehicle.  A Washington State crime
laboratory analyst who was an expert in matching shoe prints was not able
to match prints on the boots worn by either Sipin or Taylor to the pedals
of the Z-3 or to the rubber floor mats.
The medical evidence showed that Sipin suffered permanent brain damage, as
well as perforations to his intestines, from blunt-force trauma to his
abdomen.  The medical evidence also showed that Taylor sustained serious
injuries, primarily to the right side of his body.3
Mr. Kay Sweeney, a forensic scientist, viewed the vehicle and various
exhibits, and testified for Sipin.  Sweeney testified that he had
previously worked for the King County Sheriff's Department as the director
of the crime lab, and for the Seattle Police Department, and that he had
been involved in over 500 crime-scene reconstructions.  Sweeney used the
same aerial shots, photographs, skid mark measurements, and survey evidence
prepared by Detective Wells.  Sweeney also examined the jeans worn by
Sipin, and testified that he found smears of plastic on the right lower
side of the jeans, consistent with the tan plastic from the door panels.
Sweeney also stated that he found evidence that indicated that the black
jacket worn by Sipin came into contact with the passenger airbag and left a
seamed transfer pattern.  Sweeney stated that the method of the transfer
was consistent with deployment of the airbag.
Sweeney examined the jeans worn by Taylor, and found tears and melted
plastic on them that he believed were made through interaction of the jeans
with the interior of the vehicle.  Sweeney testified that the dash above
the glove box, the right-side airbag, and the right door panel and armrest
had smear patterns that matched the jeans.  Sweeney opined that the smears
on the glove box, dashboard, and doorframe indicated horizontal movement
from the driver's side toward the passenger's side and out the passenger-
side door.  Sweeney concluded, based on the pattern on the airbag, the
fibers on the airbag, and Taylor's jeans, that Taylor's jeans had smeared
across the airbag and abraded a hole into it after it deployed and deflated
and lay on the doorframe.  Sweeney also found fibers consistent with
Taylor's jeans on the driver's console strip, near the boot of the
gearshift.
Sweeney further testified that in his opinion, the State's witnesses had
underestimated the impact between the Z-3 and the mailbox imbedded in
cement.  Sweeney opined that the extensive damage to the right wheel on the
Z-3 a gouge that cut the tire in a half moon shape through the sidewall and
bent the wheel assembly under the vehicle was caused by the chunk of
imbedded cement, and not by the collision with the tree.  Sweeney noted
that the vehicle had significant undercarriage and rear-end damage, and
asserted that the concrete post and attached metal pole had likely caused










the damage.  Sweeney also opined that based on the extreme damage to the
passenger side of the Z-3 from the impact with the tree, which bent the
seat forward and forced it under the console, a person who remained in the
passenger seat until the car hit the tree could not have been ejected
directly from the passenger seat out the passenger-side door, but would
instead have been pinned inside the car.
Based on all the evidence, Sweeney concluded that Sipin was sitting in the
passenger seat when the airbag deployed, and that the airbag deployed when
the vehicle hit the mailbox and dragged the cement ball out of the ground.
Sweeney opined that the Z-3 rode up on the mailbox pole and was briefly
launched, as shown by a gap in the skid marks, and that Sipin was projected
into the roofline, whereas Taylor was restrained by the steering wheel.
Sweeney opined that when the Z-3 landed, it collided with and wrapped
around the tree, at which point Sipin was ejected out of the passenger's
seat and through the by-then opened roof, just before Taylor was thrown low
from the driver's seat and out the passenger door.
When the prosecutor cross-examined Sweeney on his conclusion that the Z-3
was launched into the air by the collision with the mailbox, Sweeney
reasserted that the vehicle was airborne for at least part of the time
before it collided with the tree and came to a final rest, and that Sipin
was projected into the roofline until ejected from the car.  Sweeney also
emphasized that he could have calculated the force of the mailbox and
cement ball more accurately if they had been preserved as evidence.
During closing argument to the jury, the prosecutor described PC-CRASH as a
computer program that
essentially takes the laws of physics and reduces them to mathematical
calculations that can be done over and over again to generate an accurate
picture of what happened during a collision based on the tire marks at the
scene, based on the physical evidence in the case such as the damage to the
car, as well as the conditions that can be observed at the scene.

13 Report of Proceedings at 13.  The prosecutor then showed the PC-CRASH
video to the jury, again.
   Sipin was convicted as charged.
Sipin's Motions for a New Trial
After his conviction, Sipin filed a motion for a new trial in which he
again argued that PC-CRASH had not been validated for the use exercised by
Heusser in reconstructing the accident.  Sipin also asserted that Heusser
manipulated data by entering arbitrary 'inputs' such as separation speeds
as high as 1,114.8 mph, placing the mailbox pole away from where it was
actually located, and having the computer occupant models remain in a
default resting position after the collision with the mailbox.
Sipin's motion was supported by the declaration of Brian McHenry, an expert
in accident reconstruction.  McHenry had been involved in the creation of
mathematical models and computer programs for simulations of vehicle
collisions including CAL-2D, HVOSM, SMAC, and CRASH, which were the bases
for most existing vehicle dynamics and accident reconstruction programs.
McHenry stated that he was fully familiar with PC-CRASH and its abilities
and limitations.  McHenry stated that Heusser did not include detailed
vehicle interior measurements, that he improperly placed the models in the
computer programs at a 'default' seated setting after the impact with the
mailbox, and that he 'inputted' arbitrary speed changes at the mailbox and
tree that were not determined or calculated by the program.  These included
speeds ranging from 1,114.8 mph down to 88.6 mph and back to 127.2 mph,
within a second and a half.
McHenry stated that the validity of PC-CRASH results was based on real
world tests, and that the program should not be used as the sole basis for
accident reconstruction conclusions.  He further asserted that the multi-
body version used by Heusser had not been validated to simulate or predict
the movement of interior occupants, and that no computer model currently
existed that had been validated as a predictive model for detailed occupant
kinematics.
Sipin also submitted three studies that he believed undermined the validity
of Heusser's use of the multi-body option in PC-CRASH as a predictive model
for occupant movement in car crashes.4  A 1999 paper, 'A New Approach to
Occupant Simulation Through the Coupling of PC-Crash and MADYMO,' studied
the evolving
science of vehicle-occupant movement through the joined use of two computer
programs.  This study used PC-CRASH solely for predicting vehicle movements
and 'inputted' results of those simulations into MADYMO (MAthematical
DYnamic MOdel), a computer program that was validated to simulate occupant
movement.  The study did not use the multi-body option in PC-CRASH.  It
also emphasized that the modeling dummy used to illustrate occupants was
validated only for frontal collisions and not for multiple impacts, and was
to be used solely for the purpose of evaluating different restraint
systems.
A 2002 paper, 'Methods of Occupant Kinematics Analysis in Automobile
Crashes,' analyzed various bases for evaluating free body motion within a
vehicle, including plotting of vehicle motion to determine occupant motion.
The examples utilizing PC-CRASH in the paper were simplistic, based on
movement of one vehicle, and did not validate PC-CRASH to predict multiple-
occupant movement in a multi-collision situation where the occupants are
ejected from the vehicle.  Another 2002 paper, 'Occupant Kinematics in
Forensics: Evaluating the Appropriateness and Applicability of an ATB
Application,' was authored by McHenry and described the development of the
Articulated Total Body (ATB) model computer program, which is used to
simulate the dynamic motion of jointed systems of rigid bodies.  This paper
emphasized that although ATB was the most evolved model for vehicle
occupants, it modeled a simple passive dummy occupant and had 'never been
validated as a general predictive occupant kinematics simulation model for
any type of real-world accidents.'  Clerk's Papers at 162.
The trial court denied Sipin's motion for a new trial, noting that the
information provided by Sipin had been available when he made his first
motion to exclude the evidence, prior to trial.  The judge also stated that
he was not certain that he would have rejected Heusser as an expert witness
on the basis of McHenry's opinions.
Sipin renewed the motion, attaching an assessment of Heusser's PC-CRASH
simulation from Boyd Allin of MacInnis Engineering Associates, Inc., which
is the distributor of PC-CRASH for North America.  Similar to McHenry,
Allin opined that Heusser's arbitrary 'inputs' made the results of the
occupant modeling highly suspect.  Allin also stated that the PC-CRASH
program could not calculate the speed change of a vehicle when it strikes a
pole and pulls it out of the ground, and that Heusser should have
considered this problem in his calculations.  Finally, Allin emphasized
that the multi-body model PC-CRASH program had not been validated for use
in modeling the interaction of occupants within the vehicle interior, and
that Heusser's use represented 'an overextension of the capabilities of the
model.'  Clerk's Papers at 310.
The court denied Sipin's renewed motion, finding it to be a collateral
attack on the previous order denying the first motion for a new trial, and
that the evidence was of the same type offered at the first motion.
Sipin appeals the admission of the car crash simulation evidence generated
by PC-CRASH and the accompanying testimony of Heusser, together with the
trial court's denial of his motions for a new trial.
DISCUSSION
     In Washington, the Frye test is used to determine the admissibility of
novel scientific evidence.  State v. Copeland, 130 Wn.2d 244, 261, 922 P.2d
1304 (1996) (citing Frye v. United States, 293 F. 1013, 34 A.L.R. 145 (App.
D.C. 1923)).  While this court generally reviews the trial court's decision
on a motion for a new trial for abuse of discretion, Palmer v. Jensen, 132
Wn.2d 193, 197, 937 P.2d 597 (1997), review of admissibility of evidence
under the Frye test is de novo.  Copeland, 130 Wn.2d at 255.  Moreover, we
are not limited to the evidence that was before the trial court with
respect to the Frye admissibility issues, and may undertake a searching
review of scientific literature as well as secondary legal authority before
rendering a decision.  Id. at 256.  A key reason for this expanded scope of
appellate review is that 'it is impractical in many instances for a true
cross-section of scientists to testify at a hearing.'  Id. (citations
omitted).  We may not properly sustain a trial court's determination
regarding admissibility on a mere finding that the record contains
sufficient evidence of the reliability of the challenged scientific method.
State v. Cauthron, 120 Wn.2d 879, 887, 846 P.2d 502 (1993).
Under the Frye test, scientific evidence is admissible if it is generally
accepted in the relevant scientific community, but not admissible if there
is a significant dispute among qualified experts as to its validity.
Copeland, 130 Wn.2d at 255.  Under Frye, novel scientific evidence is
admissible where (1) the scientific theory or principle upon which the
evidence is based has gained general acceptance in the relevant scientific
community of which it is a part; and (2) there are generally accepted
methods of applying the theory or principle in a manner capable of
producing reliable results.  State v. Riker, 123 Wn.2d 351, 359, 869 P.2d
43 (1994).
The reliability of evidence derived from scientific methods depends upon
three factors:  '(1) the validity of the underlying principle, (2) the
validity of the technique applying that principle, and (3) the proper
application of the technique on a particular occasion.'  (Footnotes
omitted).  Gianelli, The Admissibility of Novel Scientific Evidence:  Frye
v. United States, a Half-Century Later, 80 Colum. L. Rev. 1197, 1201
(1980).  The first two factors are critical with regard to the
admissibility of evidence derived from a novel scientific technique.

State v. Huynh, 49 Wn. App. 192, 195, 742 P.2d 160 (1987).
However, if the proffered evidence does not involve new methods of proof or
new scientific principles, then the Frye inquiry is not necessary.  State
v. Ortiz, 119 Wn.2d 294, 311, 831 P.2d 1060 (1992).  This is because full
acceptance of a process in the relevant scientific community obviates the
need for a Frye hearing.  State v. Russell, 125 Wn.2d 24, 41, 882 P.2d 747
(1994).
The State argues that no Frye hearing was necessary in this case because
the laws of physics are well known, and all that Heusser did was to use PC-
CRASH to apply mathematical equations and the laws of physics as accident
reconstructionists have always done utilizing a computer program rather
than a slide rule and a pocket calculator.  We agree with the trial court
that a Frye hearing was necessary.  Jurisdictions that have addressed the
issue uniformly hold that the admissibility of computer-generated models or
simulations (as opposed to animations) as substantive proof or as the basis
for expert testimony regarding matters of substantive proof is conditioned
upon a sufficient showing that (1) the computer is functioning properly;
(2) the input and underlying equations are sufficiently complete and
accurate (and disclosed to the opposing party so that they can be
challenged); and (3) the program is generally accepted by the appropriate
community of scientists for use in the particular situation at hand.  See
Commercial Union Ins. Co. v. Boston Edison Co., 412 Mass. 545, 549, 591
N.E.2d 165 (1992); Commonwealth v. Fatalo, 346 Mass. 266, 269, 191 N.E.2d
479 (1963); Bray v. Bi-State Dev. Corp., 949 S.W.2d 93, 98 (Mo. App. 1997);
Kudlacek v. Fiat S.p.A., 244 Neb. 822, 509 N.W.2d 603, 617 (1994); State v.
Clark, 101 Ohio App.3d 389, 655 N.E.2d 795, 812 (1995).  Contrast
Commonwealth v. Serge, 58 Pa. D. & C.4th 52 (2001) (distinguishing between
computer-generated animations and computer-generated simulations, in terms
of tests for admissibility).  We agree with these courts, and hold that in
Washington, computer-generated simulations used as substantive evidence or
as the basis for expert testimony regarding matters of substantive proof
must have been generated from computer programs that are generally accepted
by the appropriate community of scientists to be valid for the purposes at
issue in the case.
Our Independent Review
This court requested that the State provide the PC-CRASH manual for version
6.2, the version used by Heusser.  We appreciate that the State provided
both the Technical Manual and the Users Manual for PC-CRASH version 6.2.
We have examined these manuals to determine whether the program parameters
include the uses described by Heusser at trial, that is, the prediction of
movement of two occupants of a vehicle in a multi-collision accident.  They
do not.
The Technical Manual primarily describes the mathematics involved in the
computer program.  This manual briefly describes the multi-body model, the
model that Heusser used to make his simulation.  While the manual states
that this model may be used 'to correlate pedestrian and occupant injuries
to vehicle damage areas,' the primary focus of this section of the manual
is the use of the model for purposes of pedestrian/vehicle impacts.  (Tech.
Man. at 51-62).
The User Manual for version 6.2 of PC-CRASH expands the description of the
multi-body model and additionally states that a multi-body occupant option
'allows impacts to be automatically calculated between the occupant's
multibody components and the vehicle's interior or other occupant
multibodies.'  However, the User Manual warns that speeds over 25 mph 'can
cause the multibody shape to go through the vehicle outline and then
rebound unrealistically due to a force much higher than could normally
occur.'  The manual states that the position of the model within the
vehicle can be modified, but provides no options for different types of
seats, or for height or weight of the model.  (User Man. at 57, 223).  This
is directly contrary to Heusser's assertions, during the Frye hearing, that
he was able to input the height and weight of Sipin and Taylor.
The User Manual also does not provide information on modeling interaction
between the occupant and interior components, airbags, or removable
convertible hardtops.  The User Manual describes using a 3D drafting
program, AutoCAD, to create surfaces in a vehicle for purposes of
calculating a contact point, but does not mention its use for modeling a
removable convertible rooftop that flexes and comes off during a collision.
And, while the User Manual provides information on how to change the
default settings for a single impact to assist with simulation of secondary
impacts for vehicles, the manual does not describe the use of the occupant
model in a multiple or secondary impact situation like that at issue in the
present case.
The User Manual states that the MADYMO (MAthematical DYnamic MOdel) is a
more comprehensive multi-body occupant option, and that this additional
option is provided in version 6.2 of PC-CRASH to carry out more detailed
simulations of restrained or unrestrained occupant movement.  The MADYMO
model includes a seat with changeable parameters, a steering wheel, lap and
torso seat belt options, and airbags.  However, the User Manual cautions
that only one MADYMO occupant can be modeled at a time and that the
occupant cannot be out of a normal seated position at the start of the
impact.  The manual also warns that the occupant height is defaulted at 5'
9' tall and cannot be changed.  The steering wheel geometry, foot well, and
seat cushion dimensions are fixed.  The manual does not describe whether or
how the MADYMO model could be used in a multi-impact collision.
Thus, the PC-CRASH manuals describe several limitations on the use of both
the occupant model and the MADYMO model to simulate occupant movement in a
vehicle accident.  Additionally, there is no mention in either manual of
the use of the occupant model to predict complicated interior occupant
movement in a multi-collision situation, taking into consideration vehicle
interior components, multiple impacts, and a removable convertible hardtop.
While the MADYMO model is the most comprehensive occupant model available,
it is not available for more than one occupant and was not used by Heusser
in the present situation, in any event.  Most importantly, neither manual
indicates that either occupant model has been validated for use in
accurately predicting or simulating occupant movement in multiple impact
situations.
These limitations in the PC-CRASH program are reflected in the declarations
and papers provided by Sipin in his motions for a new trial and indicate
that, contrary to Heusser's assertions otherwise, the program is not
generally accepted in the relevant scientific community to predict or
simulate complicated interior-occupant movement in a multiple-collision
accident, the purpose to which the software was put to produce evidence for
trial in this case.
Brian McHenry, who had assisted in the creation of several car crash
simulation programs and was fully familiar with the limitations of PC-
CRASH, stated that the program should not be used as the sole basis for
accident reconstruction conclusions.  McHenry asserted that the multi-body
version used by Heusser had not been validated to simulate or predict the
movement of interior occupants and that no computer model currently existed
that had been validated as a predictive model for detailed occupant
kinematics.
Boyd Allin of MacInnis Engineering Associates, Inc., the distributor of PC-
CRASH for North America, emphasized that the multi-body model PC-CRASH
program had not been validated for use in modeling the interaction of
occupants within the vehicle interior, and that Heusser's use represented
'an overextension of the capabilities of the model.'  Allin stated that the
PC-CRASH program could not calculate the speed change of a vehicle when it
strikes a pole and pulls it out of the ground, and that Heusser had
nonetheless not considered this problem in his calculations.
The three papers submitted by Sipin post trial also showed the limitations
of the PC-CRASH program.  'A New Approach to Occupant Simulation Through
the Coupling of PC-Crash and MADYMO,' emphasized that the MADYMO modeling
dummy, the most evolved occupant model available, was validated only for
frontal collisions and was to be used solely for the purpose of evaluating
different restraint systems.  The PC-CRASH manual further illustrates that
this advanced model has substantial limitations, including that only one
occupant may be modeled at a time.  'Methods of Occupant Kinematics
Analysis in Automobile Crashes,' did not validate PC-CRASH to predict
multiple occupant movement in a multi-collision situation, including the
interaction of interior components, or where the occupants are ejected from
the vehicle.  Finally, 'Occupant Kinematics in Forensics,' authored by
McHenry, emphasized that the ATB model used for vehicle occupants in
simulation programs had 'never been validated as a general predictive
occupant kinematics simulation model for any type of real-world accidents.'
Clerk's Papers at 162.
In sum, the two post-trial declarations provided by Sipin, the three papers
that he submitted post trial, and the PC-CRASH manuals themselves
illustrate that there is no general acceptance in the relevant scientific
community of the use of this PC-CRASH program for the purposes to which it
was put by Heusser.  We have not been able to locate any documents that
support the State's position, and the State has provided none.5
It is not our task to determine whether a scientific method or theory is
correct.  Such is beyond the expertise of courts.  Instead, it is our task
to determine whether the appropriate scientific community has generally
reached consensus that the method or theory is reliable.  Cauthron, 120
Wn.2d at 887.  Even so, we are concerned that McHenry and Allin allege that
in order to reach his conclusions, Heusser manipulated data, ignored the
limitations of the program, and ignored the impact between the BMW and the
mailbox imbedded in concrete.  McHenry stated that Heusser did not include
detailed vehicle interior measurements and that he 'inputted' arbitrary
speed changes at the mailbox and tree that were not determined or
calculated by the program.  Apparently, these speeds ranged from 1,114.8
mph down to 88.6 mph and back to 127.2 mph within a second and a half a
mind-boggling proposition that seems to illustrate the potential danger of
blind acceptance by the courts of unsubstantiated assurances by an expert
witness that a particular computer program is reliable because it obeys the
laws of physics.
Although much of the evidence provided by McHenry and Allin clearly goes to
the weight to be accorded Heusser's testimony, much of it also relates to
admissibility of the evidence under Frye, because it illustrates the
limitations that two members of the relevant scientific community see in
the computer program at issue and explains why it is that the relevant
group of scientists have not reached consensus that PC-CRASH is reliable
for the uses that Heusser attempted to make of the program for purposes of
this trial.
In sum, notwithstanding Sipin's failure to present expert testimony and
supporting documentation that was available at the time of the Frye
hearing, the State cannot properly rely upon evidence that is inadmissible
under Frye in order to uphold Sipin's conviction on appeal.  De novo
appellate review sometimes requires that the court review scientific
evidence that was not presented to the trial court even though it was
available, as is the case here.  A higher principle than the performance of
Sipin's trial counsel is at stake.6  Once an appellate court determines
that the Frye test has been met as to a specific novel scientific theory,
the trial courts generally may rely upon that ruling to govern
admissibility of the same theory in subsequent cases.  Cauthron, 120 Wn.2d
at 888 n.3.  In light of our conclusion that the challenged evidence in
this case was not admissible under Frye, we cannot countenance the State's
use of such evidence here or in future cases and that will remain true
until such time as the relevant scientific community may reach consensus
with respect to the validity and reliability of the PC-CRASH program used
by Heusser, for the specific purposes here at issue.
After this case was argued, another division of this court addressed the
admissibility of evidence generated by a PC-CRASH program, and affirmed the
trial court's admission of the evidence under Frye.  See State v. Phillips,
2004 WL 2221571,     Wn. App.    , 98 P.3d 838 (2004).  There, the
defendant in a vehicular homicide case admitted to driving the vehicle
during the accident, in which his car ran off the road and hit a pole.  At
issue was whether the evidence generated by PC-CRASH could be admitted to
discount the driver's version of events that he had been driving at the
speed limit while negotiating a curve, but swerved to miss a deer and lost
control of the car.  In Phillips, the PC-CRASH program was used to predict
movement of the vehicle in a single-impact crash, and the relevant
scientific community of accident reconstructionists agreed that the
computer program was reliable for that purpose.  Our decision on the
admissibility of the proffered evidence is different because here the State
sought to use PC-CRASH for a purpose that is strongly disputed by the
relevant scientific community: use of the multi-body version of PC-CRASH to
predict interior occupant movement in a multi-impact accident.
Harmless Error
The State argues that even if the evidence was erroneously admitted, the
error was harmless.  See State v. Leuluaialii, 118 Wn. App. 780, 77 P.3d
1192 (2003) (erroneous admission of canine DNA evidence despite failure of
scientific process to meet Frye test required reversible error
examination).  Sipin must show 'within reasonable probabilities' that but
for the alleged error the outcome of his trial would have been different.
State v. Smith, 106 Wn.2d 772, 780, 725 P.2d 951 (1986) (erroneous
admission of defendant's prior burglaries in unrelated rape case required
reversible error examination).  As should be clear from the extensive
statement of facts with which we commenced this opinion, the record compels
the conclusion that the outcome of the trial might reasonably have been
different if the trial court had excluded the challenged evidence.
The primary issue at trial was the identity of the driver.  The trial court
ruled that Mr. Heusser could present the computer generated simulation
video and pictures and also testify that the simulation accurately showed
what happened during the incident.  Heusser testified to that conclusion at
trial, and he showed the video several times, both in full speed and in
slow motion, stopping the video at various frames to illustrate the bases
for his opinions.  The State relied heavily on Heusser's testimony and
played the video again during closing argument.  The remaining evidence of
Sipin's guilt was more or less evenly split.  Forensic scientists matched
Taylor's jeans to fibers within the passenger compartment.  However,
Sweeney testified that these fibers indicated movement from the driver to
passenger side of the vehicle and across a deflated airbag.  He concluded
that Taylor traveled across the vehicle interior when the BMW hit the tree.
Sweeney also matched an imprint on the passenger airbag to Sipin's jacket
and testified that the imprint occurred when the vehicle first hit the
mailbox, thus showing that Sipin was the passenger.
     Although Detective Wells stated that his preliminary opinion at the
scene was that the person who was lying between the passenger door and the
tree was the passenger, and the other occupant was the driver, he did not
do calculations to determine occupant movement during the accident.  He
also did not measure the force of impact from the mailbox or preserve it as
evidence.  Sweeney testified that he could have more accurately calculated
the force of the mailbox on the BMW if it had been properly preserved, but
that it was a significant impact as indicated by the large amount of damage
to the BMW, and was, therefore, significant to the accident reconstruction.
Other prosecution evidence was inconclusive in determining which occupant
was the driver.  The medical evidence regarding Taylor's various injuries
along the right side of his body was not linked by any expert witness other
than Heusser to Taylor's potential location in the BMW.  Significantly,
several witnesses testified that Sipin suffered from gout and could not
drive a manual transmission on the day in question.  Sipin's wife testified
that she saw Taylor in the driver's seat shortly before the two left.
Sipin's daughter testified that Taylor was driving when the vehicle left
the driveway, a little after 5 p.m.  Witnesses testified that they saw the
car traveling at a high rate of speed a few minutes later, and the first
911 call was received at 5:11 p.m.
We conclude that within reasonable probabilities, but for the error in
admitting the computer-generated simulation evidence, the outcome of his
trial might have been different.
Reversed and remanded for a new trial.

WE CONCUR:

1 See Frye v. United States, 293 F. 1013, 34 A.L.R. 145 (App. D.C. 1923).
2 See Cliff, William E., and Montgomery, Darcy T., Validation of PC-CRASH -
A Momentum-Based Accident Reconstruction Program, SEA International (1996)
(Ex. 8); Moser, A., Steffan, H. and Kasanicky, G., The Pedestrian Model in
PC-CRASH - The Introduction of a Multi Body System and its Validation,
Society of Automotive Engineers (1999) (Ex. 9).
3 Doctor Richard Harruff, the chief medical examiner for the King County
Medial Examiner's Office, performed an autopsy on Taylor.  Dr. Harruff
noted that Taylor had several scrapes, primarily on the right side of his
body including the face, lower chest, arm, and leg.  Dr. Harruff also noted
that Taylor had rib fractures on both sides, a sternum fracture, a bruised
heart and diaphragm, bruising on his head on the right side, and that the
right lobe of his liver was extensively torn.
4 See Steffan, H. and Geigl, B.C., A New Approach to Occupant Simulation
Through the Coupling of PC-Crash and MADYMO, SAE International (1999);
Bready, Jon E. et al., Methods of Occupant Kenematics Analysis in
Automobile Crashes, SAE International (2002); McHenry, Brian G., Occupant
Kinematics in Forensics: Evaluating the Appropriateness and Applicability
of an ATB Application, ATB Users' Group Conference (2002).
5 This court also reviewed various publications from the Society of
Automotive Engineers (SAE).  These include a study mentioned but not
provided by Heusser during his Frye hearing testimony, which validates the
PC-CRASH pedestrian model (SAE #2000-01-0847), and a study validating the
use of PC-CRASH/MADYMO coupling in 2000 (SAE #2000-01-0471).  SAE #2000-01-
0847 makes no mention of occupant modeling or occupant movement in PC-
CRASH.  And, as pointed out in the discussion, Heusser did not use the
MADYMO coupling but used the 'multi-body' occupant option; thus SAE #2000-
01-0471 is not relevant to our discussion here.  Other SAE publications
include a study on stability analysis within PC-CRASH which discusses the
development/application of an algorithm that can be used to determine
uncertainty ranges for each input parameter in PC-CRASH, but which does not
mention occupant kinematics (SAE #2003-01-0488); a paper addressing the
validation of PC-CRASH/MADYMO program coupling for purposes of validating
vehicle rollovers, which also does not discuss multiple occupant movement
in multi-collision accidents (SAE #2001-01-0176); a study on uncertainty
values in accident reconstruction using PC-CRASH, which made no mention of
occupant kinematics or modeling of interior occupant movement in PC-CRASH
(SAE #2003-01-0489); and a paper involving evidentiary considerations of
computer generated exhibits that made no mention of PC-CRASH (SAE #1999-01-
0101).  In sum, none of these articles supports a conclusion that PC-CRASH
has ever been validated for the purpose for which it was used here.
6 Sipin's current counsel on appeal is different from his trial counsel.

 
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