State v. Rich ( 2016 )


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  •             FILE""'·
    IN CLERKS OFFICE
    IUPREM[' COU;{T, STATE OF WASHINGTON
    DATE   JAN 0 7 2016
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    I
    IN THE SUPREME COURT OF THE STATE OF WASHINGTON
    STATE OF WASHINGTON,                                    NO. 91623-3
    Petitioner,
    v.                                  ENBANC
    ANDREA MARIE RICH,
    Respondent.
    Filed   JAN 0 1 2016
    GORDON McCLOUD, J.-A jury convicted Andrea Rich of driving under
    the influence (DUI) and reckless endangerment.          RCW 46.61.502 and RCW
    46.64.506; RCW 9A.36.050. The evidence showed that Rich was speeding in traffic
    while highly intoxicated and with a young child in the front passenger seat. But the
    officer who arrested Rich followed her car because he believed that the car was
    stolen; Rich's manner of driving posed no observable danger.
    The Court of Appeals reversed the reckless endangerment conviction, holding
    that the evidence was insufficient to establish that Rich's driving created an actual,
    substantial risk of death or serious physical injury to another person. State v. Rich,
    1
    State v. Rich (Andrea Marie), No. '91623-3
    
    186 Wash. App. 632
    , 
    347 P.3d 72
    , review granted, 
    183 Wash. 2d 1018
    , 
    355 P.3d 1153
    (20 15). The Court of Appeals ruled, on an issue of first impression, that proof of a
    DUI does not necessarily establish proof of reckless endangerment. !d. at 642.
    We agree with the Court of Appeals that proof of DUI alone does not
    necessarily establish proof of reckless endangerment. But the State proved more
    than just DUI in this case. It also proved speeding, past a police car, in traffic, by a
    driver whose breath alcohol level was more than twice the legal limit, who showed
    awareness that she had done something wrong once stopped, and who had a young
    child in the front passenger seat. Construing the evidence in the light most favorable
    to the State, a reasonable juror could conclude beyond a reasonable doubt that Rich
    created a substantial risk of death or injury to her passenger, that Rich knew of the
    substantial risk, and that Rich disregarded that risk in gross deviation from the way
    a reasonable person would act in her situation. We therefore reverse the Court of
    Appeals and affirm the reckless endangerment conviction.
    FACTS
    On May 27, 2012, at about 8:00 p.m., Deputy Paul Mulligan of the King
    County Sheriffs Office was on patrol in Burien. 2 Report of Proceedings (RP) at
    89. He heard a Seattle Police Department radio broadcast stating that a stolen, dark
    blue Acura MDX was seen in the area. Deputy Mulligan testified that he "was in
    the inside lane [traveling southbound] when the stolen vehicle drove past me in the
    2
    '     .
    State v. Rich (Andrea Marie), No. 91623-3
    outside lane." ld. at 75. The speed limit was "about 35 through that area." ld. The
    deputy was "doing the flow of traffic" in a marked patrol car. I d. Based on his
    suspicion that the car was stolen, Deputy Mulligan "pulled in behind the vehicle, and
    was able to catch up to it at about 50 miles an hour." ld. Deputy Mulligan followed
    the Acura for about four blocks before it pulled into a parking lot of an apartment
    complex. I d. at 78. He turned on his emergency lights and parked behind the Acura.
    I d.
    The driver of the Acura, Rich, opened her car door. ld. at 79.          Deputy
    Mulligan got out of his car but waited for backup before approaching the Acura. I d.
    He heard Rich say in a "loud voice" to the passenger, Rich's nephew who was
    between seven and nine years old, "[T]ell them we just found the keys and we just
    got in the car." ld. Deputy Mulligan arrested Rich after backup arrived. 
    Id. at 80.
    The officers who interacted with Rich at the time of her arrest noticed a strong
    odor of alcohol and observed signs of intoxication, including bloodshot, watery eyes
    and slurred speech. I d. at 110-12. Because Rich was wearing a walking leg cast,
    police officers did not administer field sobriety tests. 1 RP at 42-43. Breath alcohol
    tests administered at a police station approximately an hour after Rich's arrest
    indicated blood alcohol concentration levels of0.183 and 0.188. 2 RP at 177. Rich
    told police officers that she had consumed one shot of alcohol. I d. at 122.
    3
    State v. Rich (Andrea Marie), No. '91623.-3
    The State charged Rich with DUI, possession of a stolen vehicle, and reckless
    endangerment. Clerk's Papers (CP) at 6-7.
    At trial, Rich testified that she was just getting into the car when the police
    officer pulled up behind her. 2 RP at 191. She said that her nephew brought the
    keys to her just before the police arrived and that he was in the car with her. ld. at
    191, 198. Rich testified that she had consumed one or two shots of alcohol and that
    she was "tipsy," but she also claimed that the alcohol did not affect her. Jd. at 205,
    201, 194.
    The state forensic toxicologist testified that a person would have to consume
    about 9 to 10 shots of standard proof alcohol to achieve a blood alcohol reading of
    0.188. 2 RP at 134. He also testified that a person burns off alcohol at an average
    rate of 0.015 per hour. I d.
    The jury convicted Rich of DUI and reckless endangerment-both gross
    misdemeanors-but acquitted her of possessing a stolen vehicle. CP at 4 7-49. The
    jury also returned a special verdict stating that Rich's alcohol concentration level
    was "0.15 or higher within two hours after driving." CP at 50. The court imposed
    a sentence of 120 days of confinement on the DUI conviction and 20 days on the
    reckless endangerment conviction. CP at 54; Tr. of Trial (July 26, 2013) at 4.
    Rich appealed. The Court of Appeals reversed Rich's reckless endangerment
    conviction and affirmed the DUI conviction. Rich, 
    186 Wash. App. 632
    . The Court
    4
    '      '
    State v. Rich (Andrea Marie), No. 91623-3
    of Appeals held that no evidence showed Rich's driving specifically posed an actual
    risk of death or serious injury that was considerable or substantial. I d. at 64 7. The
    court also held that evidence Rich was under the influence of alcohol, alone, did not
    support the conviction. 
    Id. This court
    granted the State's petition for review. Rich, 
    183 Wash. 2d 1018
    . The
    question presented is whether the evidence was sufficient to support Rich's reckless
    endangerment conviction.
    ANALYSIS
    I.     Standard of Review
    This case requires us to decide if evidence that Rich was speeding in traffic
    with a young passenger in the front seat of the car while she was highly intoxicated
    was sufficient to support her reckless endangerment conviction. The sufficiency of
    the evidence is a question of constitutional law that we review de novo. State v.
    Berg, 
    181 Wash. 2d 857
    , 867, 
    337 P.3d 310
    (2014).
    The State bears the burden of proving all the elements of an offense beyond a
    reasonable doubt. In re Winship, 
    397 U.S. 358
    , 364, 
    90 S. Ct. 1068
    , 
    25 L. Ed. 2d 368
    ( 197 0); U.S, CONST. amend. XIV; WASH. CONST, art. I, § 3, To determine if
    sufficient evidence supports a conviction, we consider '"whether, after viewing the
    evidence in the light most favorable to the prosecution, any rational trier of fact could
    have found the essential elements of the crime beyond a reasonable doubt.'" State
    5
    '     '
    State v. Rich (Andrea Marie), No. 91623-3
    v. Green, 
    94 Wash. 2d 216
    , 221, 
    616 P.2d 628
    (1980) (some emphasis omitted)
    (quoting Jackson v. Virginia, 
    443 U.S. 307
    , 319, 
    99 S. Ct. 2781
    , 
    61 L. Ed. 2d 560
    (1979)). "[I]nferences based on circumstantial evidence must be reasonable and
    cannot be based on speculation." State v. Vasquez, 
    178 Wash. 2d 1
    , 16,309 P.3d 318
    (2013). A "'modicum"' of evidence does not meet this standard. 
    Jackson, 443 U.S. at 320
    .
    II.      A Person Commits Reckless Endangerment by Creating a Substantial
    Risk of Death or Injury toAnother Person
    The State charged Rich with reckless endangerment, not reckless driving.
    RCW 9A.36.050(1), which defines "reckless endangerment," states, "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." 1
    Thus, to obtain a conviction, the State must first prove "reckless[] ...
    conduct." RCW 9A.36.050(1). The mens rea of recklessness has both a subjective
    and an objective component. RCW 9A.08.010(1)(c) states, "A person is reckless or
    acts recklessly when he or she knows of and disregards a substantial risk that a
    1
    Reckless endangerment is not exclusively a driving offense. It is located in
    the general criminal code, chapter 9A RCW, rather than in the motor vehicle code,
    chapter 46 RCW. A separate statute, RCW 46.61.500, prohibits reckless driving,
    which is "driv[ing] any vehicle in willful or wanton disregard for the safety of
    persons or property." RCW 46.61.500(1 ).
    6
    '     '
    State v. Rich (Andrea Marie), No. 91623-3
    wrongful act may occur and his or her disregard of such substantial risk is a gross
    deviation from conduct that a reasonable person would exercise in the same
    situation." (Emphasis added.)     Whether Rich's conduct was reckless therefore
    "'depends on both what [she] knew and how a reasonable person would have acted
    knowing these facts.'" State v. Graham, 
    153 Wash. 2d 400
    , 408, 
    103 P.3d 1238
    (2005)
    (quoting State v. R.H.S., 
    94 Wash. App. 844
    , 847, 
    974 P.2d 1253
    (1999)).
    The State must also prove "a substantial risk of death or serious physical
    injury to another person."    RCW 9A.36.050(1 ).      A "risk," of course, is not a
    certainty. See 
    Graham, 153 Wash. 2d at 407
    (reckless endangerment is an inchoate
    crime; distinguishing between reckless endangerment, on the one hand, which
    subjects defendant to conviction based on risk her conduct poses, and assault or
    homicide, on the other hand, which require proof that harmful consequences actually
    occurred).   And although no statute defines "serious physical injury," RCW
    9A.04.11 0( 4)(a) defines "physical injury" as "physical pain or injury, illness, or an
    impairment of physical condition." No statute defines "substantial" either, but in
    State v. McKague, we defined "substantial" (as used in the statute defining "second
    degree assault") as "'considerable in amount, value, or worth'" and more than just
    "having some existence." 
    172 Wash. 2d 802
    , 806, 
    262 P.3d 1225
    (2011) (quoting
    WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY 2280 (2002)); RCW
    9A.36.021(1)(a).
    7
    State v. Rich (Andrea Marie), No. 91623~3
    Taken together, to convict Rich of reckless endangerment, the State had to
    prove beyond a reasonable doubt that Rich knew of and disregarded a considerable
    risk-not a certainty-of death or serious physical pain or injury that her conduct
    posed to her young nephew, and that her behavior constituted a gross deviation from
    how a reasonable person would have acted based on the known facts.
    III.   Evidence of Intoxication Alone or Speed Alone, without More, Does
    Not Constitute Reckless Endangerment
    Rich argues that proof of DUI alone is insufficient to prove reckless
    endangerment. Resp't's Suppl. Br. at 8. She also asserts that proof of speeding
    alone is insufficient to prove reckless endangerment. !d. at 13.
    This is, in part, a question of statutory interpretation; we therefore begin by
    looking at the language of the relevant statutes. Kitsap County Deputy SheriffS'
    Guild v. Kitsap County, 
    183 Wash. 2d 358
    , 378, 
    353 P.3d 188
    (2015). As 
    discussed supra
    , the reckless endangerment statute requires proof that the defendant knows of
    and disregards a substantial risk and that the defendant's conduct constitutes a gross
    deviation from the way that a reasonable person would act in the same situation.
    RCW 9A.36.050(1); RCW 9A.08.010(1)(c). DUI, however, contains no such mens
    rea element. RCW 46.61.502(1); see State v. Dailey, 174 Wn. App. 810,815-16,300
    P.3d 834 (2013). For this reason alone, proof of DUI, without more, does not
    8
    State v. Rich (Andrea Marie), No. 91623-3
    establish proof of reckless endangerment. Reckless endangerment requires proof of
    something more.
    Similarly, speeding requires only proof of a violation of the traffic code. See
    Clem,ent v. Dep't c35 P.3d 1171 
    (2001)
    (citing City o.fBremerton v. S'pears, 
    134 Wash. 2d 141
    , 158,949 P.2d 347 (1998)). For
    this reason alone, proof of speeding, without more, does not establish proof of
    reckless endangerment. Reckless endangerment requires proof of something more.
    This conclusion is consistent with the conclusion we reached on this issue in
    the reckless driving context. In State v. Hanna, this Court upheld the validity of an
    instruction allowing a jury to draw an inference of reckless driving from proof of
    speeding. 
    123 Wash. 2d 704
    , 712-13, 
    871 P.2d 135
    (1994). Thereafter, in Hanna v.
    Riveland, 
    87 F.3d 1034
    (9th Cir. 1996), the court ruled that that instruction created
    an impermissible inference in violation of the right to due process-a fact about
    which this court said it was "not unmindful" when deciding State v. Randhawa, 
    133 Wash. 2d 67
    , 77 n.3, 
    941 P.2d 661
    (1997), a few years later. Thus, in Randhawa, we
    clarified that speeding, alone, does not necessarily give rise to an inference of
    recklessness. I d. at 77 ("[W]e cannot say with substantial assurance that the inferred
    fact, Randhawa's reckless driving, more likely than not flowed from the proved
    fact-Randhawa's speed. That is so because the facts relating to Randhawa's speed
    were not nearly as egregious as those in Hanna .... "). We reaffirm that holding
    9
    '     '
    State v. Rich (Andrea Marie), No. 91623-3
    now: that speeding, alone, does not necessarily prove recklessness. But in this case,
    the State did not rely on evidence of Rich's speed, alone, to support the reckless
    endangerment conviction.
    Similarly, in State v. Birch, 
    183 Wash. 670
    , 673, 
    49 P.2d 921
    (1935), we held
    that driving under the influence of alcohol does not, on its own, constitute reckless
    driving.    We explained that the jury must determine " [w]hether or not, in any
    particular case, the extent of the use of intoxicating liquor int1uenced the manner of
    driving." !d. at 674-75. This reasoning supports our conclusion here that the court
    must consider the specific facts of the case to decide if the defendant, under the
    particular circumstances, knew of and disregarded a considerable risk that her
    conduct posed and that her behavior constituted a gross deviation from reasonable
    behavior.
    Rich cites Commonwealth v. Mastromatteo, 
    719 A.2d 1081
    , 1083 (Pa. Super.
    1998), in which the intermediate appellate court interpreted a statute similar to
    Washington's reckless endangerment statute and held that DUI does not constitute
    recklessness per se. But, as discussed in more detail in Part IV below, the State did
    not rely only on DUI evidence to support Rich's conviction.
    Rich also claims, "Importantly, the State did not present any statistical
    evidence to substantiate its bare assertion during closing argument that driving drunk
    creates a high risk of accident causing serious physical injury or death." Resp't's
    10
    State v. Rich (Andrea Marie), No. 91623-3
    Suppl.Br.at9. ShecitesBegayv. UnitedStates,553U.S.137, 140, 128S.Ct.1581,
    
    170 L. Ed. 2d 490
    (2008) and Johnson v. United States,_ U.S._, 
    135 S. Ct. 2551
    ,
    2557, 
    192 L. Ed. 2d 569
    (2015).
    Begay and Johnson, however, were not sufficiency of the evidence cases.
    Those cases interpreted-in two different ways-the "residual clause" of the former
    Armed Career Criminal Act of 1984, 18 U.S.C. § 924(e), which imposes a
    mandatory sentencing enhancement on felons who unlawfully possess a firearm and
    have three or more convictions for violent felonies. 
    Begay, 553 U.S. at 148
    . The
    residual clause defines an offense as a qualifying violent felony if it "involves
    conduct that presents a serious potential risk of physical injury to another."      18
    U.S.C. § 924( e)(2)(B)(ii). In Begay, the Court held that it had to "consider the
    offense generically . . . . [W]e examine it in terms of how the law defines the offense
    and not in terms of how an individual offender might have committed it on a
    particular occasion." !d. at 141. Rich cites Justice Scalia's concurrence in that case,
    which concluded that drunk driving does not clearly present a serious risk of injury
    to another within the statute's meaning. !d. at 148 (Scalia, J., concurring).
    Begay's holding is not applicable to either the subjective or objective inquiry
    here. In this case, we do not look at reckless endangerment generically; rather, we
    consider the specific evidence admitted to determine if it was constitutionally
    sufficient to support the conviction.
    11
    State v. Rich (Andrea Marie), No. 91623-3
    In Johnson, the Supreme Court held that the residual clause is
    unconstitutionally vague because it defined a qualifying offense at too high a level
    of 
    generality. 135 S. Ct. at 2557
    .    This case does not involve overly broad
    definitions; rather, the question before us is whether specific evidence was sufficient
    to support Rich's conviction.
    IV.    A Reasonable Juror Could Conclude beyond a Reasonable Doubt That
    Rich Created a Subjectively and Objectively Unreasonable and
    Substantial Risk of Death or Serious Physical Injury to Another
    The question remains whether any reasonable juror could conclude, beyond a
    reasonable doubt, that Rich created a subjectively and objectively unreasonable and
    substantial risk of death or serious physical injury to another. The Court of Appeals
    reversed because the State failed to prove an "'actual"' risk of death or serious
    physical injury that was "considerable or substantial." 
    Rich, 186 Wash. App. at 647
    (quoting 
    McKague, 172 Wash. 2d at 805
    ).
    The State acknowledges that it lacked proof of actual erratic driving or actual
    harm. It contends that such proof was not necessary.
    Rich, on the other hand, focuses on the absence of erratic driving or any
    resulting harm.      She contends that despite her intoxication, she "was not
    incapacitated[;] [s]he was able to walk, waive her rights and answer questions, and
    submit to a breathalyzer," and that "[t]here was no evidence that she had swerved or
    driven erratically." Resp't's Suppl. Br. at 12-13. She also argues that her nephew
    12
    .     .
    State v. Rich (Andrea Marie), No. 91623-3
    was secure in the car and that no external circumstances in the environment tended
    to show the creation of a substantial risk. I d. at 14.
    But none of that really responds to the State's argument that it need not prove
    actual erratic driving or actual harm to prove reckless endangerment. Indeed, there
    is no good response to the State's interpretation; Rich's argument would eliminate
    the word "risk" from the crime's language.
    With that interpretation in mind, we review the evidence in the light most
    favorable to the State. The record clearly reveals more than proof of only DUI or
    only speeding. Evidence also showed that Rich knew that the legal blood alcohol
    limit in Washington is 0.08. 2 RP at 194. Further, the evidence showed that Rich
    knew that she was driving while "tipsy." ld. at 205. Indeed, Rich's loud comments
    to her nephew show that she was trying to cover up the fact that she had done
    something wrong. ld. at 79. A reasonable juror could conclude that Rich knew
    driving while "tipsy" could cause an accident, and that she disregarded that risk in a
    gross deviation from conduct a reasonable person would exercise in a similar
    situation. ld. at 205; RCW 9A.08.010(1)(c). This satisfies the subjective component
    of reckless conduct.
    In addition, Deputy Mulligan testified that Rich passed his marked police car
    in the right lane. The jury could infer from his testimony that Rich was speeding
    when she passed him. 2 RP at 75. The evidence also showed that she was driving
    13
    '    .
    State v. Rich (Andrea Marie), No. 91623-3
    in traffic, not in a deserted area. She had a young child in the front passenger's seat.
    Officers testified that Rich, once stopped, spoke in an abnormally loud voice with
    odd speech patterns and that based on her demeanor, the smell of alcohol, and the
    appearance ofher eyes, they concluded that she was intoxicated. !d. at 81, 105, 107,
    110-12, 146, 148. As discussed above, her blood alcohol level about one hour after
    her arrest was 0.183 to 0.188. !d. at 194. A toxicologist testified that to reach a
    blood alcohol level of 0.188, a person would have to consume about 9 to 10 shots of
    standard proof alcohol. !d. at 134. The toxicologist also testified that any amount
    over a 0.08 blood alcohol level would render a person unable to operate a motor
    vehicle safely. !d. at 133. This evidence-taken together-is sufficient to satisfy
    the objective component of reckless conduct: a reasonable person would recognize
    the substantial risk of death or serious physical injury to Rich's nephew seated in the
    front of the car by her conduct of speeding in traffic while having a blood alcohol
    level of more than twice the legal limit, which affected her speech and her behavior,
    and knowing that she was "tipsy."
    CONCLUSION
    Evidence of DUI, alone, is not sufficient to prove reckless endangerment.
    Evidence of speeding, alone, is not sufficient to prove reckless endangerment. But
    here, the record contains evidence of DUI, of speeding, of extreme intoxication, of
    Rich's knowledge that she was "tipsy," and of engaging in all of this behavior while
    14
    State v. Rich (Andrea Marie), No. 91623-3
    in traffic with a young child in the front seat. Viewing the evidence in the light most
    favorable to the State, any reasonable juror could have concluded beyond a
    reasonable doubt that Rich recklessly engaged in conduct that created a substantial
    risk of death or serious physical injury to her nephew and that it constituted a gross
    deviation from the way a reasonable person would act in her situation. We therefore
    reverse the Court of Appeals and reinstate Rich's reckless endangerment conviction.
    15
    State v. Rich (Andrea Marie), No. 91623-3
    WE CONCUR:
    16