STATE v. 09 07 84 (2003)

PUBLISHED IN PART

A.G. appeals her vehicular homicide and reckless endangerment convictions arising from a fatal one-car accident.   She argues her three reckless endangerment convictions violate her constitutional right to be free from double jeopardy.   Because the plain and unambiguous language of the reckless endangerment statute provides that a defendant is guilty of the crime if she creates a risk to a particular person and three people were in A.G.'s vehicle when the accident happened, the State could properly charge her with three counts of reckless endangerment.

A.G. also contends the juvenile court's finding that she did not have actual knowledge of the specific risks created by her driving precludes its conclusion that she satisfied the mental elements of the offenses.   She also asserts the court's finding that a reasonable person in her situation would have understood the risks of her driving is not supported by the evidence.   But the evidence established that A.G. understood the risks of speeding, recklessness and inattentive driving, and a driver need only understand these general risks to satisfy the mental elements of reckless endangerment and vehicular homicide.   We therefore affirm her convictions.

FACTS

On March 16, 2001, A.G. decided to skip afternoon classes at Vashon High School and drive to her house for lunch.   A.G.'s boyfriend, Thomas Porro, gave A.G. and Katie Boss a ride to the Vashon Island ferry dock so A.G. could take her father's car.   A.G. had gotten her driver's license 20 days earlier.   The two girls then drove back to school, picked up their friend Sydney Shelton, and drove to the store to buy lunch.   A.G. and the other girls ran into Porro, who was notorious throughout the high school for his fast and reckless driving.   In their respective cars, Porro and A.G. began playing a game, and A.G. tried to follow him as he sped down the road.   At one point, A.G. was going 90 mph while she tried to keep up with him.

 After they lost Porro, A.G. and the other girls returned to the high school to ask Jake Wittmier to join them for lunch.   Wittmier was with Ashley Fix when Shelton invited him to join them.   Shelton asked Fix to join them and, although she was hesitant at first, Fix agreed to go with them.   Boss told A.G. it was a bad idea to take another person because the car did not have enough seat belts, but A.G. told her it would be okay.   Wittmier got into the back of the car and sat behind Boss, who sat in the front passenger's seat.   Fix sat in the middle of the back, and Shelton sat behind A.G. Wittmier and Shelton did not wear their seat belts, and the car did not have a seatbelt for a third person sitting in the middle of the back seat.

A.G. then drove from the cement parking lot over to a nearby gravel parking lot even though she did not need to go through the gravel lot to leave the school parking lot.   She did a “brodie” in the gravel by whipping the car around in a circle while accelerating. High school counselor Judith Vondal heard A.G.'s car spin around in the gravel, and she watched as A.G. drove out of the gravel onto the cement to leave the school lot.   Vondal saw her accelerate out of the exit, causing the back end of the car to fishtail out of control.

A.G. turned onto 204th Street.   As she drove past Shelton's home, Shelton noticed the speedometer was at 60 mph.   She was nervous about the speed and thought about telling A.G. to slow down, but she did not.   A.G. then turned onto Monument Road and again accelerated.   Wittmier noticed the speedometer needle pointing straight up, which meant A.G. was going 80 mph.   Vashon resident Terry Campbell was jogging on Monument Road when he heard a car approaching.   He testified that he moved further off the roadway because the car was moving at an abnormally high rate of speed.

As A.G. drove down a straight stretch of Monument Road with a 40 mph speed limit, she began “playing around” with the wheel by swerving the car back and forth and told the passengers, “Look, guys, I can drive like Thomas,” her  boyfriend.   At the same time, A.G. stopped looking at the road and looked down to adjust the stereo.

As she swerved back and forth and looked at the stereo, the car drifted into the oncoming lane.   She jerked the wheel to the right so hard that she swerved back across her lane of travel into the gravel on the side of the road.   She then jerked the wheel back to the left and slammed on the brakes.   The car went back into the opposite lane and then into a ditch, causing it to roll.   It continued moving down the ditch, facing almost 180 degrees in the opposite direction from its original direction of travel.   It then hit a clump of small trees, broke through them and continued down the ditch.   The car finally struck a bank, jumped up over a fire hydrant and came to a stop 407 feet from the point where the tires started to leave skid marks on the roadway.   During the skid, Fix, Wittmier, and Shelton were ejected from the back of the vehicle.   Fix landed approximately 30 feet from the vehicle and died almost immediately.

After the car came to a stop, A.G. exclaimed, “oh shit.”   She told Boss she was sorry and asked her to make up a lie so A.G. could avoid getting in trouble with her father.   Several passing motorists stopped at the crash site.   Mike Fortin, one of their classmates, stopped and asked what happened.   Boss and Shelton told him A.G. had been driving faster than the speed limit and both made a motion with their hands indicating she had been playing with the steering wheel.

King County Sheriff's Deputy Chris Kahrs responded to the accident.   A.G. told him, “it was my fault” and “I was driving too fast.”   King County Detective Steve Hager arrived at the scene of the crash and began to reconstruct the events.   He observed dry road conditions, a straight, slightly downhill roadway with wide shoulders, and an overcast sky.   Based on the length of the skid marks and other mathematical calculations, Detective Hager estimated the car's speed at the beginning of the crash at 78-79 mph.

At trial, Shelton testified that she took a driver's education course with A.G. before the crash.   In the class, A.G.  learned about cautious driving, obeying the speed limit, obeying the laws of the road, and being responsible for passengers.   She also learned about losing control of a vehicle at high speeds, the dangers of “messing around” in the car while driving and what to do when the brakes lock up.

A.G. testified in her own defense.   She admitted to learning in driver's education about losing control of a vehicle and testified that she learned what to do in those circumstances.   She told the court she learned the importance of obeying the speed limit so she could control the vehicle and safely bring it to a stop.   She said she learned not to slam on the brakes in certain situations, but to apply light pressure to ease the vehicle back under control.   She also admitted that she followed Porro on the day of the crash and that they had broken the speed limit.   She testified that Porro was a “crazy,” reckless driver whose driving had scared her when she had ridden with him in the past.

Dick Chapman, an accident reconstruction consultant, testified on A.G.'s behalf.   He agreed with Detective Hager's speed estimate of 78-79 mph.   He also testified that a driver would need specific knowledge, training and experience in order to regain control of a vehicle at the speed A.G. was traveling.

Dr. Marty Beyer, a child psychologist, also testified for A.G. She said A.G. was not aware of the risks of her driving because of past trauma in her life and her lack of maturity.   Dr. Beyer acknowledged that A.G. told her about “fooling around” with the wheel before the crash and telling the others that she was driving like Thomas.   Dr. Beyer also admitted the defendant knew the danger of playing around while driving.

On July 12, 2001, the King County Prosecutor's Office charged A.G. with one count of vehicular homicide based on the death of Ashley Fix. On December 4, 2001, the State amended the information to add three reckless endangerment counts.   A.G. was tried in juvenile court.   The court found her guilty on all four counts.   A.G. appeals.

 DISCUSSION

I. Double Jeopardy

 A.G. contends that charging her with three counts of reckless endangerment violates double jeopardy.   While she did not raise this issue at trial, a constitutional challenge may be raised for the first time on appeal.¹  The double jeopardy clause of the Fifth Amendment protects a defendant from being punished more than once for the same offense.²  To decide whether the clause was violated, the court normally applies the “same evidence” test ³ to determine whether the defendant has been convicted of offenses which are the same in law and in fact.⁴  But when a defendant is convicted of violating a single statute multiple times,⁵ as is the case here, the defendant cannot satisfy the same evidence test because the evidence is necessarily different for each count.   Therefore, the proper inquiry is what “unit of prosecution” the Legislature intended as the punishable act under the specific statute.⁶  The first step in analyzing the unit of prosecution is to examine the statute.⁷

 RCW 9A.36.050(1) provides that “[a] person is guilty of reckless endangerment when he or she recklessly engages in conduct not amounting to drive-by shooting but that creates a substantial risk of death or serious physical injury to another person.” ⁸  A.G. asserts she was convicted of three counts of reckless endangerment based on the same automobile accident, and that the unit of prosecution for this offense is the defendant's reckless conduct.   Washington  courts have not yet determined the unit of prosecution for reckless endangerment.

A.G. cites State v. Westling in support of her argument.⁹  There, the defendant was convicted of three counts of second degree arson after setting a single fire that damaged three automobiles.   The charging statute, RCW 9A.48.030(1), provides that

[a] person is guilty of arson in the second degree if he knowingly and maliciously causes a fire or explosion which damages a building, or any structure or erection appurtenant to or joining any building, or any wharf, dock, machine, engine, automobile, or other motor vehicle, watercraft, aircraft, bridge, or trestle, or hay, grain, crop, or timber, whether cut or standing or any range land, or pasture land, or any fence, or any lumber, shingle, or other timber products, or any property.[¹⁰ ]

The Washington Supreme Court held that the unit of prosecution for second degree arson is the act of setting a fire, not each piece of damaged property.   Thus, according to A.G., like the one fire set in Westling, her conduct caused one automobile accident that endangered three passengers.   But this statute is significantly different from the one involved in Westling.   The reckless endangerment statute clearly predicates guilt on the defendant's creating a risk to a single particular person.   Unlike the arson statute, the statute under which A.G. was charged focuses on the single individual whose well-being is put in jeopardy by whatever conduct the defendant engages in.

 And unlike the arson statute, RCW 9A.36.050(1) does not address creating risk of harm to a group of people or things.   A person commits the crime by creating a risk in relation to another person.   A.G. fails to establish that the language of this statute is unclear or ambiguous, and a  court is “not obliged to find an ambiguity by imagining a variety of alternative interpretations.” ¹¹  We therefore conclude the Legislature intended one unit of prosecution per victim.   Because the statute predicates guilt on creating a risk to a single person and A.G.'s conduct endangered three different people who were in her car at the time, the State could charge her with three counts of reckless endangerment and not violate the double jeopardy clause.¹²  We therefore decline to dismiss two of the three counts.

The remainder of this opinion has no precedential value.   Therefore, it will not be published but has been filed for public record.   See RCW 2.06.040;  CAR 14.

II. Reckless Endangerment

A.G. contends her reckless endangerment convictions should be vacated for two reasons:  (1) the trial court found she acted with criminal negligence instead of with recklessness when it stated she did not have actual knowledge of the risks inherent in the driving that caused the accident;  and (2) there is insufficient evidence to support the finding that a reasonable person would have been aware of the risks she created.   We reject both contentions.

The crime of reckless endangerment includes the mental state of recklessness, which in turn requires that the defendant have actual knowledge of the risks involved in the dangerous conduct.  RCW 9A.36.050(1) provides:

A person is guilty of reckless endangerment when he or she recklessly engages in conduct not amounting to drive-by shooting but that creates a substantial risk of death or serious physical injury to another person.

RCW 9A.08.010(1)(c) defines recklessness as follows:

A person is reckless or acts recklessly when he knows of and disregards a substantial risk that a wrongful act may occur and his disregard of such substantial risk is a gross deviation from conduct that a reasonable man would exercise in the same situation.

Thus, recklessness depends on both what the defendant knew and how a reasonable person would have acted knowing these facts.13

A. Subjective Prong

Finding of fact 13 says:

Although the respondent knew that driving at high speeds, not paying attention to the road, and playing games with the wheel were unsafe and could cause an accident, the Court cannot find that she had actual knowledge of the risks inherent in the particular dangerous situation she created on March 16th. 14

A.G. urges us to characterize this as a finding that she did not have actual knowledge of the risks she caused.   We reject this narrow interpretation because it does not accurately represent the court's findings.

While the court did find A.G. lacked actual knowledge of the risks in the “particular dangerous situation she created,” it also found she knew the risks of speeding and inattention while driving.   And finding of fact 14 provides in part that “even if she did not have actual knowledge of the specific risks, she had constructive knowledge of those risks.” 15  The trial court clearly distinguished between the general risks A.G.'s driving caused from knowledge that the car would roll over and eject the passengers.   But for A.G.'s excessive speed and inattentive and reckless driving, she would not have needed to slam on the brakes while traveling at 80 mph on an unpaved shoulder carrying the weight of four passengers.   Because A.G. clearly knew the risks of speeding, playing with the steering wheel and being inattentive while driving, she had all the knowledge of the risks the statute requires.16

B. Objective Prong

A.G. next argues her reckless endangerment convictions should be dismissed because there is insufficient evidence to support the juvenile court's finding that a reasonable person in her situation would have been aware of the dangers of her driving.17  The trial court found:

A reasonable person in a similar situation would have recognized the risks inherent in the driving behavior in which the respondent engaged.   As such, even if she did not have actual knowledge of the specific risks, she had constructive knowledge of those risks.

We review a challenge to the sufficiency of the evidence by looking at the evidence in the light most favorable to the State and affirm if any reasonable trier of fact could find all the elements of the offense beyond a reasonable doubt.18  All reasonable inferences must be drawn in favor of the State and interpreted against the defendant.19  Under RCW 9A.08.010(1)(c), we must look at the facts from the point of view of a reasonable person in the same situation as the defendant.   When the defendant is a juvenile, this means a reasonable person of the defendant's age.20

In support of her position that there is insufficient evidence for the trial court to find that a reasonable person of her age would comprehend the risks of her driving, A.G. asserts that (1) an inexperienced driver would not have known how to handle her vehicle, (2) adolescents do not have adult decision-making skills, (3) the Legislature recently created an intermediate driver's license based on a finding that teenage drivers are not prepared for full driving privileges,21 and (4) the passengers in her vehicle were not alarmed by her driving.22  These assertions are not persuasive because A.G. incorrectly characterizes the issue.

A.G. asserts that an inexperienced teenage driver would not know how to handle an out-of-control vehicle that is traveling at high speeds, has four passengers, and is on an unpaved shoulder.   But that is not the issue.   Rather, the court properly focused on the conduct that caused the accident rather than what happened as a result of that conduct.   That is, it was A.G.'s excessive speed, inattention and playing with the car that caused her to lose control of it.   While a reasonable person in a similar situation may not know how to handle the vehicle once it is out of control, a reasonable teenage driver does understand the risks of driving at excessive speeds and playing with a vehicle.

When it adopted the intermediate driving license, the Legislature found that inexperienced drivers do not know how to drive in all situations, not that they do not comprehend the risks of excessive speeding, recklessness and inattentive driving.23  Nor do A.G.'s experts address whether a reasonable teenage driver would understand the risks of driving over the speed limit while playing with the steering wheel.   While teenage drivers may not understand all of the ultimate risks of their conduct, they do know that reckless and inattentive driving may result in accidents.   If we were to decide that lack of experience alone excused the consequences of teenagers' speeding and reckless and inattentive driving, they could never be held accountable for their conduct.   Proof that a driver knows the general risks of reckless driving behavior is sufficient to satisfy the objective prong of the reckless endangerment statute.

III. Vehicular Homicide

A.G. again argues in the context of her vehicular homicide conviction that “[s]ince the juvenile court found [A.G.] lacked actual knowledge of the dangers inherent in her driving, the court's conclusions that [she] had the mental states [sic] necessary for vehicular homicide are incorrect, and her convictions should be reversed and dismissed.”   We disagree.

Under RCW 46.61.520,

(1) When the death of any person ensues within three years as a proximate result of injury proximately caused by the driver of any vehicle by any person, the driver is guilty of vehicular homicide if the driver was operating a motor vehicle:

(a) While under the influence of intoxicating liquor or any drug, as defined by RCW 46.61.502;  or

(b) In a reckless manner;  or

(c) With disregard for the safety of others.

․

The trial court properly convicted A.G. under the second and third prongs of the statute.

The trial court found A.G. guilty of vehicular homicide based on operating her vehicle “[w]ith disregard for the safety of others.” 24  The Washington Supreme Court defined driving with disregard for the safety of others as “an aggravated kind of negligence or carelessness, falling short of recklessness․” 25 “Some evidence of a defendant's conscious disregard of the danger to others is necessary to support a charge of vehicular homicide.” 26

A.G. asserts that if the court found she did not understand the dangers of her driving, she could not consciously disregard that danger.   Her argument is unpersuasive.   Her actions need only be “a more serious dereliction than the hundreds of minor oversights and inadvertences encompassed within the ‘term negligence.’ ” 27 The Sentencing Reform Act of 1981 assigned a higher seriousness level to the recklessness means of committing vehicular homicide than to the aggravated negligence/disregard means.28

The trial court found this heightened level of carelessness when it found that A.G. drove at double the speed limit, deliberately rocked the steering wheel back and forth, and diverted her attention away from controlling the car to play with the stereo.   The court found that she did all these things despite having passed driver's education where she learned of the dangers inherent in all these activities.   We conclude her behavior clearly went beyond negligence and constituted a disregard for the safety of others.29

Affirmed.

FOOTNOTES

1.   RAP 2.5(a).

2.   State v. Gocken, 127 Wash.2d 95, 100, 896 P.2d 1267 (1995).

3.   State v. Calle, 125 Wash.2d 769, 777, 888 P.2d 155 (1995).

4.   Id. at 777-78, 888 P.2d 155.

5.   State v. Adel, 136 Wash.2d 629, 633, 965 P.2d 1072 (1998).

6.   Id. at 634, 965 P.2d 1072.

7.   Id. at 635, 965 P.2d 1072.

8.   (Emphasis added.)

9.   145 Wash.2d 607, 610, 40 P.3d 669 (2002).   A.G.'s reply brief attempts to analogize to additional cases.   These cases provide no more elucidation than Westling.   In addition, A.G. fails to state or cite to the relevant statutes in those cases.   We need not consider the argument.   RAP 10.3(a)(5).

10.   (Emphasis added.)

11.   McFreeze Corp. v. State Dept. of Revenue, 102 Wash.App. 196, 200, 6 P.3d 1187 (2000) (citing State v. Tili, 139 Wash.2d 107, 115, 985 P.2d 365 (1999)).

12.   There were, of course, four passengers.   The fourth died and is the basis of the vehicular homicide conviction.

13.   State v. R.H.S., 94 Wash.App. 844, 847, 974 P.2d 1253 (1999).

14.   (Emphasis added.)

15.   (Emphasis added.)

16.   The State also argues the objective factor in RCW 9A.08.010(1)(c) satisfies the subjective element, citing R.H.S., 94 Wash.App. at 847, 974 P.2d 1253.   We need not decide this issue because we hold that the subjective element was satisfied.

17.   A.G. also argues that her vehicular homicide conviction should be vacated on the same basis.   She is mistaken.   While reckless endangerment has both a subjective and objective component to its mental state of recklessness, vehicular homicide does not.   The mental elements of the two crimes are not the same.  State v. Roggenkamp, 115 Wash.App. 927, 936-42, 64 P.3d 92 (2003).   Therefore, A.G.'s argument that her reckless endangerment and vehicular homicide convictions should be vacated if a reasonable person in the same situation would not have understood the risks of her driving is incorrect.   At best, only the reckless endangerment convictions would be affected.

18.   State v. Jeffries, 105 Wash.2d 398, 407, 717 P.2d 722, cert. denied, 479 U.S. 922, 107 S.Ct. 328, 93 L.Ed.2d 301 (1986).

19.   State v. Salinas, 119 Wash.2d 192, 201, 829 P.2d 1068 (1992).

20.   State v. Marshall, 39 Wash.App. 180, 183, 692 P.2d 855 (1984).

21.   Laws of 2000, ch. 115 § 1-2;  RCW 46.20.075.

22.   A.G. also contends the trial court's finding is incorrect in light of her expert's testimony that she lacked the requisite mental state.   This argument is irrelevant because the standard for determining reasonableness is objective.  Marshall, 39 Wash.App. at 184, 692 P.2d 855.

23.   The Legislature stated:The legislature has recognized the need to develop a graduated licensing system in light of the disproportionately high incidence of motor vehicle crashes involving youthful motorists.   This system will improve highway safety by progressively developing and improving the skills of younger drivers in the safest possible environment, thereby reducing the number of vehicle crashes.Laws of 2000, ch. 115 § 1. The Washington Traffic Safety Commission stated that teenage drivers lack sufficient experience to deal with many of the driving conditions they encounter.   This is not the same as finding that teenage drivers do not understand the risks of speeding and reckless and inattentive driving.

24.   RCW 46.61.520(1)(c).

25.   State v. Eike, 72 Wash.2d 760, 765, 435 P.2d 680 (1967) (citing State v. Partridge, 47 Wash.2d 640, 645, 289 P.2d 702 (1955)).

26.   State v. Vreen, 99 Wash.App. 662, 672, 994 P.2d 905 (2000) (citing State v. Lopez, 93 Wash.App. 619, 623, 970 P.2d 765 (1999)), aff'd, 143 Wash.2d 923, 26 P.3d 236 (2001).

27.   Eike, 72 Wash.2d at 766, 435 P.2d 680 (citing Partridge, 47 Wash.2d at 645, 289 P.2d 702).

28.   State v. Ferguson, 76 Wash.App. 560, 569, 886 P.2d 1164 (1995) (citing State v. May, 68 Wash.App. 491, 495-96, 843 P.2d 1102 (1993)).

29.   Because A.G.'s vehicular homicide conviction is proper under the “disregard for the safety of others” prong, we need not decide if her conviction is also proper under the “reckless manner” prong of RCW 46.61.520.

 AGID, J.